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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM 6-K

 

 

 

REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Dated: August 6, 2020

 

Commission File No. 001-34104

 

 

 

NAVIOS MARITIME ACQUISITION CORPORATION

 

 

 

7 Avenue de Grande Bretagne, Office 11B2

Monte Carlo, MC 98000 Monaco

(Address of Principal Executive Offices)

 

 

 

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F: Form 20-F Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Yes No Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Yes No

Indicate by check mark whether the registrant by furnishing the information contained in this Form is also thereby furnishing the information to the

Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes No

 

If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): N/A

 

NAVIOS MARITIME ACQUISITION CORPORATION FORM 6-K

 

TABLE OF CONTENTS

 

 

  Page
 

Operating and Financial Review

2
Exhibit List 20
Financial Statements Index F-1

This Report on Form 6-K is hereby incorporated by reference into the Navios Maritime Acquisition Corporation Registration Statements on Form F-3, File No. 333-235369.

 

 

Operating and Financial Review and Prospects

 

The following is a discussion of the financial condition and results of operations for the three and six month periods ended June 30, 2020 and 2019 of Navios Maritime Acquisition Corporation (referred to herein as “we,” “us” or “Navios Acquisition”). All of the financial statements have been stated in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”). You should read this section together with the consolidated financial statements and the accompanying notes included in Navios Acquisition’s 2019 Annual Report filed on Form 20-F with the U.S. Securities and Exchange Commission (the “SEC”).

 

This Report contains forward-looking statements (as defined in Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended) concerning future events and expectations, including with respect to Navios Acquisition’s future dividends, expected cash flow generation and Navios Acquisition’s growth strategy and measures to implement such strategy; including expected vessel acquisitions and entering into further employment contracts. Words such as “may,” expects,intends,” “plans,” believes,” “anticipates,” “hopes,” “estimates,” and variations of such words and similar expressions are intended to identify forward-looking statements. Such statements include comments regarding expected revenue and employment contracts. These forward-looking statements are based on the information available to, and the expectations and assumptions deemed reasonable by, Navios Acquisition at the time this filing was made. Although Navios Acquisition believes that the expectations reflected in such forward-looking statements are reasonable, no assurance can be given that such expectations will prove to have been correct. These statements involve risks and are based upon a number of assumptions and estimates which are inherently subject to significant uncertainties and contingencies, many of which are beyond the control of Navios Acquisition. Actual results may differ materially from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially include, but are not limited to, global and regional economic and political conditions including the impact of the COVID-19 pandemic and efforts throughout the world to contain its spread, including effects on global economic activity, demand for seaborne transportation of the products we ship, the ability and willingness of charterers to fulfill their obligations to us and prevailing charter rates, shipyards performing scrubber installations, drydocking and repairs, changing vessel crews and availability of financing, potential disruption of shipping routes due to accidents, diseases, pandemics, political events, piracy or acts by terrorists, including the impact of the COVID-19 pandemic and the ongoing efforts throughout the world to contain it, the creditworthiness of our charterers and the ability of our contract counterparties to fulfill their obligations to us, tanker industry trends, including charter rates and vessel values and factors affecting vessel supply and demand, the aging of our vessels and resultant increases in operation and dry docking costs, the loss of any customer or charter or vessel, our ability to repay outstanding indebtedness, to obtain additional financing and to obtain replacement charters for our vessels, in each case, at commercially acceptable rates or at all, increases in costs and expenses, including but not limited to: crew wages, insurance, provisions, port expenses, lube oil, bunkers, repairs, maintenance and general and administrative expenses, the expected cost of, and our ability to comply with, governmental regulations and maritime self-regulatory organization standards, as well as standard regulations imposed by our charterers applicable to our business, potential liability from litigation and our vessel operations, including discharge of pollutants, general domestic and international political conditions, competitive factors in the market in which Navios Acquisition operates; risks associated with operations outside the United States; and other factors listed from time to time in the Navios Acquisition’s filings with the SEC, including its annual and interim reports filed on Form 20-F and Form 6-K. Navios Acquisition expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in Navios Acquisition’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based. Navios Acquisition makes no prediction or statement about the performance of its common stock.

 

Recent Developments

 

Debt developments

 

In June 2020, Navios Acquisition entered into a loan agreement with a commercial bank of $20.8 million in order to refinance the outstanding balance on the existing facility of two product tankers. The facility is repayable in 16 quarterly installments of $0.8 million each with a final balloon payment of $8.0 million repayable on the last repayment date. The facility matures in June 2024 and bears interest at LIBOR plus 300 bps per annum.

 

In June 2020, Navios Acquisition entered into a loan agreement with a commercial bank of $41.7 million in order to refinance seven containerships. The facility is repayable in 4 quarterly installments with a final balloon payment of $21.7 million repayable on the last repayment date. The facility matures in May 2021 and bears interest at LIBOR plus 375 bps per annum.

 

In June 2020, Navios Acquisition entered into sale and leaseback agreements with unrelated third parties for $72.1 million in order to refinance the outstanding balance on the existing facilities of four product tankers. The agreements will be repaid through periods ranging from four to seven years in consecutive quarterly installments of up to $1.8 million each, with a repurchase obligation of up to $27.0 million in total. The sale and leaseback arrangement bears interest at LIBOR plus a margin ranging from 390 bps to 410 bps per annum, depending on the vessel financed.

 

Subsequently to June 30, 2020, Navios Acquisition repurchased $9.0 million of its ship mortgage notes for a cost of $5.3 million.

 

 

 

Liquidation of Navios Europe II Inc.

 

On June 29, 2020, following the liquidation of Navios Europe II (the “Liquidation of Navios Europe II”), Navios Acquisition was allocated $8.9 million in cash and seven containerships with their associated working capital. The vessels are accounted for as held for sale. Navios Acquisition drew $41.7 million under a new short term credit facility secured with the seven containerships used for the repayment of $45.1 million of the vessels’ indebtedness. Please refer to “Related Party Transactions”.

 

 

Continuous Offering Program

 

On November 29, 2019, Navios Acquisition entered into a Continuous Offering Program Sales Agreement, pursuant to which Navios Acquisition may issue and sell from time to time through the sales agent shares of common stock having an aggregate offering price of up to $25.0 million. As of August 4, 2020, since the commencement of the program, Navios Acquisition has issued 516,250 shares of common stock and received net proceeds of $3.2 million.

 

Exercised our Option for VLCC Newbuilding under Bareboat Charter

 

In the second quarter of 2020, Navios Acquisition exercised its option for a fourth Japanese newbuild VLCC under a twelve year bareboat charter agreement with de-escalating purchase options and expected delivery in the second quarter of 2022.

 

The bareboat agreement reflects an implied price of approximately $84.5 million and an annual effective interest of approximately 6% fixed for the duration of the agreement.

 

Dividend

 

On July 28, 2020, the Board of Directors declared a quarterly cash dividend in respect of the second quarter of 2020 of $0.30 per share of common stock, which will be paid on October 8, 2020 to stockholders of record as of September 4, 2020. The declaration and payment of any further dividends remain subject to the discretion of the Board of Directors and will depend on, among other things, Navios Acquisition’s cash requirements as measured by market opportunities and restrictions under its credit agreements and other debt obligations and such other factors as the Board of Directors may deem advisable.

 

Fleet

 

As of August 4, 2020, our core fleet consisted of a total of 47 double-hulled tanker vessels, aggregating approximately 6.0 million deadweight tons, or dwt. The fleet includes 14 Very Large Crude Carriers (“VLCC”) tankers (over 200,000 dwt per ship) which transport crude oil, including the four bareboat chartered-in VLCCs expected to be delivered in each of the fourth quarter of 2020, and the first and the third quarters of 2021 and the second quarter of 2022, ten Long Range 1 (“LR1”) product tankers (60,000-85,000 dwt per ship), 18 Medium Range 2 (“MR2”) product tankers (47,000-52,000 dwt per ship), three Medium Range one (“MR1”) product tankers (35,000-45,000 dwt per ship) and two chemical tankers (25,000 dwt per ship), which transport refined petroleum products and bulk liquid chemicals. Navios Acquisition also owns seven containerships that are accounted for as held for sale. All of our vessels are currently chartered-out to quality counterparties with an average remaining charter period of approximately one year. As of August 4, 2020, we had charters covering 86.1% of available days for our core fleet for the remaining period of 2020 and 36.7% of available days for our core fleet in 2021.

 

                                                   

Vessels

  Type     Year
Built
    Dwt     Net Charter
Rate (1)
    Profit Sharing
Arrangements
    Expiration
Date (2)
   
Owned Vessels – Core fleet                                                  
Nave Polaris     Chemical Tanker       2011       25,145       Floating Rate (7)      None       November 2020    
Nave Cosmos     Chemical Tanker       2010       25,130       Floating Rate (7)      None       November 2020    
Perseus N     MR1 Product Tanker       2009       36,264     $ 12,146       None       December 2021    
Star N     MR1 Product Tanker       2009       37,872     $ 13,894       None       February 2021    
Hector N     MR1 Product Tanker       2008       38,402     $ 14,813 (17)      None       January 2021    
Nave Velocity     MR2 Product Tanker       2015       49,999     $ 16,047       None       December 2020    
Nave Sextans     MR2 Product Tanker       2015       49,999     $ 17,250 (14)      None       May 2021    
Nave Pyxis     MR2 Product Tanker       2014       49,998     $ 15,500       None       December 2020    
Nave Luminosity     MR2 Product Tanker       2014       49,999     $ 17,034       None       December 2021    
Nave Jupiter     MR2 Product Tanker       2014       49,999     $ 15,306       None       April 2021    
Bougainville     MR2 Product Tanker       2013       50,626     $ 14,709 (4)      100%       September 2020    
                            $ 15,600 (19)      100%       September 2023    
Nave Alderamin     MR2 Product Tanker       2013       49,998     $ 15,159       None       November 2020    
                                         
Nave Bellatrix   MR2 Product Tanker     2013        49,999     $ 16,047     None     March 2021  
Nave Capella   MR2 Product Tanker     2013       49,995     $ 15,800     None     January 2021  
Nave Orion   MR2 Product Tanker     2013       49,999     $ 15,159     None     December 2020  
Nave Titan   MR2 Product Tanker     2013       49,999     $ 9,875 (23)   None     September 2020  
Nave Aquila   MR2 Product Tanker     2012       49,991     $ 15,899 (22)    None     November 2020  
Nave Atria   MR2 Product Tanker     2012       49,992     $ 14,813     None     October 2020  
Nave Orbit   MR2 Product Tanker     2009       50,470     $ 14,000     None     October 2020  
Nave Equator   MR2 Product Tanker     2009       50,542     $ 16,250     None     January 2022  
Nave Equinox   MR2 Product Tanker     2007       50,922     $ 15,800 (20)    ice-transit premium (3)     October 2020  

 

Nave Pulsar

  MR2 Product Tanker     2007       50,922     $ 15,600 (5)    ice-transit premium (3)     October 2020  
Nave Dorado   MR2 Product Tanker     2005       47,999     $ 13,331     50%/50%     December 2020  
Nave Atropos   LR1 Product Tanker     2013       74,695     $ 29,625     None     May 2021  
Nave Rigel   LR1 Product Tanker     2013       74,673     $ 16,088 (8)    None     January 2022  
Nave Cassiopeia   LR1 Product Tanker     2012       74,711       Floating Rate (12)    None     September 2020  
Nave Cetus   LR1 Product Tanker     2012       74,581     $ 16,088 (8)    None     January 2022  
Nave Estella   LR1 Product Tanker     2012       75,000     $ 17,036     None     December 2020  
Nave Andromeda   LR1 Product Tanker     2011       75,000       Floating Rate (12)    None     September 2020  
Nave Ariadne   LR1 Product Tanker     2007       74,671       Floating Rate (18)    None     November 2020  
Nave Cielo   LR1 Product Tanker     2007       74,671     $ 28,875     None     May 2021  
Aurora N   LR1 Product Tanker     2008       63,495       Floating Rate (18)    None     November 2020  
Lumen N   LR1 Product Tanker     2008       63,599       Floating Rate (18)    None     November 2020  
Nave Buena Suerte   VLCC     2011       297,491     $ 47,906 (15)    50%/50%     June 2025  
Nave Quasar   VLCC     2010       297,376     $ 20,475/ 16,788 (10)/(11)   50%/50%     September 2020/ January 2023  
Nave Synergy   VLCC     2010       299,973       32,588     None     April 2022  
Nave Spherical   VLCC     2009       297,188       Floating Rate (6)    None     December 2022  
Nave Neutrino   VLCC     2003       298,287     $ 19,158 (11)    50%/50%     May 2021  
Nave Photon   VLCC     2008       297,395     $ 47,906 (15)    50%/50%     July 2021  
Nave Constellation   VLCC     2010       298,000       Floating Rate (13)    50%/50%     February 2021  
Nave Universe   VLCC     2011       297,066     $ 20,475/17,775 (10)/(21)    50%/50%     October 2020/April 2022  
Nave Celeste   VLCC     2003       298,717       Floating Rate (16)    50%/50%     December 2020  
Nave Galactic   VLCC     2009       297,168     $ 20,475/17,775 (10)/(21)    50%/50%     January 2021/ July 2022  
Vessels to be delivered*                                        
TBN I   VLCC     Q4 2020       310,000     $ 27,816 (9)    None     Q4 2030  
TBN II   VLCC     Q1 2021       310,000     $ 27,816 (9)    None     Q1 2031  
TBN III   VLCC     Q3 2021       310,000     $ 47,906     50%/50%     Q2 2026  
TBN IV   VLCC     Q2 2022       310,000                      
Owned Vessels held for sale                                        
Acrux N   Container     2010       23,338     $ 8,759     None     December 2020  
Allegro N   Container     2014       46,999     $ 9,975     None     November 2020  
Fleur N   Container     2012       41,130     $ 7,406     None     September 2020  
Ete N   Container     2012       41,139     $ 7,406     None     August 2020  
Spectrum N   Container     2009       34,333     $ 7,941     None     October 2020  
Solstice N   Container     2007       44,023     $ 8,470     None     May 2021  
Vita N   Container     2010       23,359     $ 6,882     None     September 2020  
                                                                           

 

(1) Net time charter-out rate per day (net of commissions), presented in U.S. Dollars.

 

(2) Estimated dates assuming the midpoint of the redelivery period by charterers, including owner’s extension options not declared yet.

 

(3) The premium for the Nave Equinox and the Nave Pulsar when vessels are trading on ice or follow ice breaker is $1,900 per day.

 

(4) Rate can reach a maximum of $19,780 calculated based on a formula.

 

(5) Charterer’s option to extend the charter for one year at $16,590 net per day plus ice-transit premium.

 

(6) Contract provides 100% of BITR TD3C-TCE index plus $5,000 premium. Premium of $2,500 if vessel not fitted with scrubber.

 

(7) Rate based on chemical tankers pool earnings.

 

(8) Charterer has the option to charter the vessel for an optional year at a rate of $17,063 net per day.

 

(9) Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.

 

(10) Profit sharing arrangement 50% on actual pool earnings. Any adjustment by the charterers for the expense/loss will be provisionally settled on a quarterly basis and finally settled at the end of the charter period.

 

(11) Contract provides 100% of BITR TD3C-TCE index plus $2,000 up to $38,513 and 50% thereafter with $19,158 floor.

 

(12) Rate based on LR8 pool earnings.

 

(13) Contract provides 100% of BITR TD3C-TCE index plus $2,000 up to $39,006 and 50% thereafter with $18,170 floor.

 

(14) Charterer’s option to extend the charter for one year at $18,750 net per day.

 

(15) Profit sharing arrangement of 35% above $54,388, 40% above $59,388 and 50% above $69,388.

 

(16) Contract provides 100% of BITR TD3C-TCE index plus $2,000 up to $38,513 and 50% thereafter with $18,170 floor.

 

(17) Charterer’s option to extend the charter for one year at $15,800 net per day.

 

(18) Rate based on Penfield pool earnings.

 

(19) Base rate for all three years at $15,600 net per day and ceiling at $18,525 net per day with all earnings in between 100% to the owners based on TC7 adjusted index.

 

(20) Charterer’s option to extend the charter for six months at $16,788 net per day.
(21) Contract provides 100% of BITR TD3C-TCE index up to $38,759 and 50% thereafter with $17,775 floor.
(22) Charterer's option to extend the charter for one year at $16,886 net per day
(23) Charterer's option to extend the charter for 30-90 days at $12,838 net per day with the last 30 days at $15,306 net per day

 

* Bareboat chartered-in vessels with purchase option, expected to be delivered in each of the fourth quarter of 2020, and the first and the third quarters of 2021. In the second quarter of 2020, Navios Acquisition exercised its option for a fourth Japanese newbuild VLCC under a twelve year bareboat charter agreement with de-escalating purchase options and expected delivery in the second quarter of 2022.

 

Charter Policy and Industry Outlook

 

Our core fleet currently consists of 47 vessels, of which 14 are VLCCs (including four bareboat chartered-in VLCCs expected to be delivered in each of the fourth quarter of 2020, and the first and the third quarters of 2021 and the second quarter of 2022), 31 are product tankers, and two are chemical tankers. Navios Acquisition also owns seven containerships that are accounted for as held for sale. All of our vessels are currently chartered-out to quality counterparties with an average remaining charter period of approximately one year. Many of our contracts have profit sharing arrangements (see fleet table above). While all of our vessels are currently chartered-out, we intend to deploy any vessels that would become open—not chartered-out—to leading charterers in a mix of long, medium and short-term time charters, depending on the vessels’positions, seasonality and market outlook. This chartering strategy is intended to allow us to capture increased profits during strong charter markets, while developing relatively stable cash flows from longer-term time charters. We will also seek profit sharing arrangements in our employment contracts, to provide us with potential incremental revenue above the contracted minimum charter rates.

 

Using Navios Tankers Management Inc.’s (the “Manager”) global network of relationships and extensive experience in the maritime transportation industry, coupled with its commercial, financial and operational expertise, we plan to opportunistically grow our fleet through the timely and selective acquisition of high-quality newbuilding or secondhand vessels when we believe those acquisitions will result in attractive returns on invested capital and increased cash flow. We also intend to engage in opportunistic dispositions where we can achieve attractive values for our vessels as we assess the market cycle. We believe our diverse and versatile fleet, combined with the experience and long-standing relationships of Managers with participants in the maritime transportation industry, position us to identify and take advantage of attractive acquisition opportunities.

 

 

Factors Affecting Navios Acquisition’s Results of Operations

 

We believe the principal factors that will affect our future results of operations are the economic, regulatory, political and governmental conditions that affect the shipping industry generally and that affect conditions in countries and markets in which our vessels engage in business. Other key factors that will be fundamental to our business, future financial condition and results of operations include:

 

the demand for seaborne transportation services;

 

the ability of Manager’s commercial and chartering operations to successfully employ our vessels at economically attractive rates, particularly as our fleet expands and our charters expire;

 

the effective and efficient technical management of our vessels;

 

the Managers ability to satisfy technical, health, safety and compliance standards of major commodity traders; and

 

the strength of and growth in the number of our customer relationships, especially with major commodity traders.

 

In addition to the factors discussed above, we believe certain specific factors will impact our consolidated results of operations. These factors include:

 

the charter hire earned by our vessels under our charters;

 

• our access to capital required to acquire additional vessels and/or to implement our business strategy;

 

• our ability to sell vessels at prices we deem satisfactory;

 

• our level of debt and the related interest expense and amortization of principal;

 

the level of any dividend to our stockholders; and

 

the recent global outbreak of novel coronavirus disease (COVID-19) or other epidemics or pandemics.

 

 

Voyage, Time Charter and Pooling Arrangements

 

Revenues are driven primarily by the number of vessels in the fleet, the number of days during which such vessels operate and the amount of daily charter hire rates that the vessels earn under charters, which, in turn, are affected by a number of factors, including:

 

the duration of the charters;

 

the level of spot market rates at the time of charters;

 

• decisions relating to vessel acquisitions and disposals;

the amount of time spent positioning vessels;

 

the amount of time that vessels spend in dry dock undergoing repairs and upgrades;

 

the age, condition and specifications of the vessels; and

 

the aggregate level of supply and demand in the tanker shipping industry.

 

Time charters are available for varying periods, ranging from a single trip (spot charter) to long-term which may be many years. In general, a long-term time charter assures the vessel owner of a consistent stream of revenue. Operating the vessel in the spot market affords the owner greater spot market opportunity, which may result in high rates when vessels are in high demand or low rates when vessel availability exceeds demand. Vessel charter rates are affected by world economics, international events, weather conditions, strikes, governmental policies, supply and demand, and many other factors that might be beyond the control of management.

 

For vessels operating in pooling arrangements, the Company earns a portion of total revenues generated by the pool, net of expenses incurred by the pool. The amount allocated to each pool participant vessel, including the Company’s vessels, is determined in accordance with an agreed-upon formula, which is determined by the points awarded to each vessel in the pool based on the vessel’s age, design and other performance characteristics.

 

The cost to maintain and operate a vessel increases with the age of the vessel. Older vessels are less fuel efficient, cost more to insure and require upgrades from time to time to comply with new regulations. As of August 4, 2020, the average age of Navios Acquisition’s owned fleet was 9.0 years. But, as such fleet ages or if Navios Acquisition expands its fleet by acquiring previously owned and older vessels the cost per vessel would be expected to rise and, assuming all else, including rates, remains constant, vessel profitability would be expected to decrease.

 

Navios Acquisition reports financial information and evaluates its operations by charter revenues. Navios Acquisition does not use discrete financial information to evaluate operating results for each type of charter. As a result, management reviews operating results solely by revenue per day and operating results of the fleet and thus Navios Acquisition has determined that it operates under one reportable segment.

 

Set forth below are selected historical and statistical data for Navios Acquisition for each of the three and six month periods ended June 30, 2020 and 2019 that the Company believes may be useful in better understanding the Company’s financial position and results of operations.

 

 

    Three month period ended
June 30,
    Six month period ended
June 30,
 
    2020
(unaudited)
    2019
(unaudited)
    2020
(unaudited)
    2019
(unaudited)
 
FLEET DATA                                
Available days(1)     3,859       3,503       7,614       7,187  
Operating days(2)     3,829       3,498       7,539       7,170  
Fleet utilization(3)     99.2     99.8     99.0     99.8
Vessels operating at period end     50       39       50       39  
AVERAGE DAILY RESULTS                                
Time charter equivalent rate per day(4)   $ 28,187     $ 15,525     $ 26,339     $ 17,635  

 

 

Navios Acquisition believes that the important measures for analyzing trends in its results of operations consist of the following:

 

(1) Available days: Available days for the fleet are total calendar days the vessels were in Navios Acquisition’s possession for the relevant period after subtracting off-hire days associated with major repairs, drydocking or special surveys. The shipping industry uses available days to measure the number of days in a relevant period during which vessels should be capable of generating revenues.

 

(2)       Operating days: Operating days are the number of available days in the relevant period less the aggregate number of days that the vessels

are off-hire due to any reason, including unforeseen circumstances.

 

(3) Fleet utilization: Fleet utilization is the percentage of time that Navios Acquisition’s vessels were available for generating revenue, and is determined by dividing the number of operating days during a relevant period by the number of available days during that period.

 

(4) TCE Rate: Time charter equivalent rate per day is defined as voyage and time charter revenues less voyage expenses during a period divided by the number of available days during the period. The TCE Rate per day is a standard shipping industry performance measure used primarily to present the actual daily earnings generated by vessels of various types of charter contracts for the number of available days of the fleet.

Period-over-Period Comparisons

For the Three Month Period ended June 30, 2020 compared to the Three Month Period ended June 30, 2019

The following table presents consolidated revenue and expense information for the three month periods ended June 30, 2020 and 2019. This information was derived from the unaudited condensed consolidated statements of operations of Navios Acquisition for the respective periods.

 

      For the Three
Months
Ended
June 30, 2020
(unaudited)
    For the Three
Months
Ended
June 30, 2019
(unaudited)
 
Revenue     $ 112,224     $ 58,585  
Time charter and voyage expenses       (3,450 )     (4,196
Direct vessel expenses       (3,465 )     (2,323
Vessel operating expenses (management fees entirely through related party transactions)       (29,836 )     (26,481
General and administrative expenses       (6,293 )     (6,808
Depreciation and amortization       (16,643 )     (17,320
Gain on sale of vessel             2,594  
Interest income       4       2,296  
Interest expense and finance cost       (21,680 )     (23,696
Equity in net earnings of affiliated companies             889  
Other income       156       —    
Other expense             (90
     
 
 
   
 
 
 
Net income/ (loss)     $ 31,017     $ (16,550

 

Revenue: Revenue for the three month period ended June 30, 2020 increased by $53.6 million, or 91.6%, to $112.2 million, as compared to $58.6 million for the same period of 2019. The increase was mainly attributable to an: (i) increase in revenue of $8.1 million due to the acquisition of five product tankers of Navios Europe I in December 2019; and (ii) increase in market rates during the three month period ended June 30, 2020 as compared to the same period of 2019; partially mitigated by the sale of three VLCCs in 2019. Available days of the fleet increased to 3,859 days for the three month period ended June 30, 2020, as compared to 3,503 days for the three month period ended June 30, 2019, due to the reasons mentioned above. The time charter equivalent rate, or TCE Rate, increased to $28,187 for the three month period ended June 30, 2020, from $15,525 for the three month period ended June 30, 2019. 

 

Time charter and voyage expenses: Time charter and voyage expenses for the three month period ended June 30, 2020 decreased by $0.7 million, or 17.8%, to $3.5 million, as compared to $4.2 million for the same period of 2019. The decrease was mainly attributable to a $1.1 million decrease in bunkers consumption and voyage expenses related to the spot voyages incurred in the period; partially mitigated by a $0.4 million increase in brokers’commission.

Direct vessel expenses: Direct vessel expenses, comprised of the amortization of dry dock and special survey costs, of certain vessels of our fleet amounted to $3.5 million for the three month period ended June 30, 2020, as compared to $2.3 million for the three month period ended June 30, 2019.

Vessel operating expenses (management fees): Vessel operating expenses amounted to $29.8 million for the three month period ended June 30, 2020, as compared to $26.5 million for the three month period ended June 30, 2019. The increase was mainly as a result of the acquisition of five product tankers of Navios Europe I in December 2019; partially mitigated by the sale of three VLCCs in 2019. Please see Related Party Transactions for discussion on the management fees.

 

General and administrative expenses: Total general and administrative expenses for the three month period ended June 30, 2020 decreased by

$0.5 million to $6.3 million compared to $6.8 million for the three month period ended June 30, 2019, mainly due to the decrease in legal and professional fees. For the three month periods ended June 30, 2020 and 2019, the expenses charged by the Manager for administrative services were $3.0 million and $2.8 million, respectively.

 

Depreciation and amortization: Depreciation and amortization amounted to $16.6 million for the three month period ended June 30, 2020, as compared to $17.3 million for the three month period ended June 30, 2019, mainly due to the sale of three VLCCs in 2019; partially mitigated by the acquisition of five product tankers of Navios Europe I in December 2019. Depreciation of a vessel is calculated using an estimated useful life of 25 years from the date the vessel was originally delivered from the shipyard.

 

Gain on sale of vessel: There was no gain on sale of vessel for the three month period ended June 30, 2020 as compared to a $2.6 million gain from the sale of one VLCC in the second quarter of 2019.

 

Interest income: Interest income for the three month period ended June 30, 2020 decreased by $2.3 million to $0 compared to $2.3 million for the three month period ended June 30, 2019.

 

Interest expense and finance cost: Interest expense and finance cost for the three month period ended June 30, 2020 decreased by $2.0 million to $21.7 million, as compared to $23.7 million for the three month period ended June 30, 2019. The decrease was mainly due to the decrease of the weighted average interest rate for the three month period ended June 30, 2020 to 6.61% compared to 7.20% in the same period in 2019 and the decrease of the average outstanding balance. The average outstanding balance of our credit facilities (other than the 2021 Notes, as defined in “Long- Term Debt Obligations and Credit Arrangements – Ship Mortgage Notes”) decreased to $495.3 million for the three month period ended June 30,

2020 as compared to $552.8 million for the three month period ended June 30, 2019. As of June 30, 2020 and 2019, the outstanding balance under

Navios Acquisition’s total borrowings was $1,174 million and $1,198 million, respectively.

 

Equity in net earnings of affiliated companies: Equity in net earnings of affiliated companies for the three month period ended June 30, 2020 amounted to $0 as compared to $0.9 million for the three month period ended June 30, 2019 which related to income recognized for Navios Europe I and Navios Europe II.

 

Other income: Other income for the three month period ended June 30, 2020 was $0.2 million. For the comparative period of 2019 other income was $0.

 

Other expense: Other expense for the three month period ended June 30, 2020 was $0. For the comparative period of 2019 other expense was $0.1 million.

 

For the Six Month Period ended June 30, 2020 compared to the Six Month Period ended June 30, 2019

 

The following table presents consolidated revenue and expense information for the six month periods ended June 30, 2020 and 2019. This information was derived from the unaudited condensed consolidated statements of operations of Navios Acquisition for the respective periods.

 

                     
      For the Six
Months
Ended
June 30, 2020
(unaudited)
    For the Six
Months
Ended
June 30, 2019
(unaudited)
 
Revenue     $ 210,081     $ 135,704  
Time charter and voyage expenses       (9,532 )     (8,963
Direct vessel expenses       (6,605 )     (4,678
Vessel operating expenses (management fees entirely through related party transactions)       (59,673 )     (54,387
General and administrative expenses       (10,247 )     (11,945
Depreciation and amortization       (33,249 )     (35,041
Gain on sale of vessels             3,245  
Interest income       7       4,456  
Interest expense and finance cost       (43,523 )     (46,625
Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies       (13,900 )     1,734  
Other income             1,333  
Other expense       (1,473 )     (522
     
 
 
   
 
 
 
Net income/ (loss)     $ 31,886     $ (15,689
                           

 

Revenue: Revenue for the six month period ended June 30, 2020 increased by $74.4 million, or 54.8%, to $210.1 million, as compared to $135.7 million for the same period of 2019. The increase was mainly attributable to an: (i) increase in revenue by $16.9 million due to the acquisition of five product tankers of Navios Europe I in December 2019; and (ii) increase in market rates during the six month period ended June 30, 2020 as compared to the same period of 2019; partially mitigated by the sale of three VLCCs in 2019. Available days of the fleet increased to 7,614 days for the six month period ended June 30, 2020, as compared to 7,187 days for the six month period ended June 30, 2019, due to the reasons mentioned above. The TCE Rate increased to $26,339 for the six month period ended June 30, 2020, from $17,635 for the six month period ended June 30, 2019.

 

Time charter and voyage expenses: Time charter and voyage expenses for the six month period ended June 30, 2020 increased by $0.5 million, or 6.3%, to $9.5 million, as compared to $9.0 million for the same period of 2019. The increase was mainly attributable to a: (a) $0.4 million increase in brokers’commission; and (b) a $0.1 million increase in bunkers consumption and voyage expenses related to the spot voyages incurred in the period.

 

Direct vessel expenses: Direct vessel expenses, comprising of the amortization of dry dock and special survey costs of certain vessels of our fleet, amounted to $6.6 million for the six month period ended June 30, 2020, as compared to $4.7 million for the six month period ended June 30, 2019.

Vessel operating expenses (management fees): Vessel operating expenses for the six month period ended June 30, 2020 increased by $5.3 million to $59.7 million, as compared to $54.4 million for the six month period ended June 30, 2019. The increase was mainly as a result of the acquisition of five product tankers of Navios Europe I in December 2019; partially mitigated by the sale of three VLCCs in 2019. Please see Related Party Transactions for discussion on the vessel operating expenses (management fees).

General and administrative expenses: Total general and administrative expenses for the six month period ended June 30, 2020 decreased by $1.7 million to $10.2 million compared to $11.9 million for the six month period ended June 30, 2019, mainly due to the decrease in legal and professional fees. For the six month periods ended June 30, 2020 and 2019, the expenses charged by the Manager for administrative services were $6.0 million and $5.6 million, respectively.

Depreciation and amortization: Depreciation decreased by $1.8 million to $33.2 million for the six month period ended June 30, 2020 as compared to $35.0 million for the six month period ended June 30, 2019, mainly due to the sale of three VLCCs in 2019; partially mitigated by the acquisition of five product tankers of Navios Europe I in December 2019. Depreciation of a vessel is calculated using an estimated useful life of 25 years from the date the vessel was originally delivered from the shipyard.

 

Gain on sale of vessels: There was no gain on sale of vessels for the six month period ended June 30, 2020 as compared to a $3.2 gain from the sale of two VLCCs in the first and second quarters of 2019.

 

Interest income: Interest income for the six month period ended June 30, 2020 decreased by $4.5 million to $0, as compared to $4.5 million for the six month period ended June 30, 2019.

 

Interest expense and finance cost: Interest expense and finance cost for the six month period ended June 30, 2020 decreased by $3.1 million to $43.5 million, as compared to $46.6 million for the six month period ended June 30, 2019. The decrease was mainly due to the decrease of the weighted average interest rate for the six month period ended June 30, 2020 to 4.40% compared to 7.23% in the same period in 2019 and the decrease of the average outstanding balance. The average outstanding balance of our credit facilities (other than the 2021 Notes, as defined in “Long- Term Debt Obligations and Credit Arrangements – Ship Mortgage Notes”) decreased to $508.4 million for the six month period ended June 30,

2020 as compared to $543.5 million for the three month period ended June 30, 2019. As of June 30, 2020 and 2019, the outstanding balance under Navios Acquisition’s total borrowings was $1,174 million and $1,198 million, respectively.

 

Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies: Impairment of receivable in affiliated companies for the six month period ended June 30, 2020 amounted to $13.9 million and related to the other-than-temporary impairment recognized in the Navios Acquisition’s receivable from Navios Europe II. Equity in net earnings of affiliated companies for the six month period ended June 30, 2019 amounted to $1.7 million which related to income recognized for Navios Europe I and Navios Europe II.

Other income: Other income for the six month period ended June 30, 2020 was $0 as compared to $1.3 million for the same period in 2019.

Other expense: Other expense for the six month period ended June 30, 2020 was $1.5 million as compared to $0.5 million for the same period in 2019.

 

 

Liquidity and Capital Resources

 

Our primary short-term liquidity needs are to fund general working capital requirements, dry docking expenditures, minimum cash balance maintenance as per our credit facility agreements and debt repayment, and other obligations from time to time, while our long-term liquidity needs primarily relate to expansion and investment capital expenditures and other maintenance capital expenditures and debt repayment. Expansion capital expenditures are primarily for the purchase or construction of vessels to the extent the expenditures increase the operating capacity of or revenue generated by our fleet, while maintenance capital expenditures primarily consist of dry docking expenditures and expenditures to replace vessels in

order to maintain the operating capacity of or revenue generated by our fleet. We anticipate that our primary sources of funds for our short-term liquidity needs will be cash flows from operations, long-term borrowings and proceeds from asset sales. As of June 30, 2020, Navios Acquisition’s current assets totaled $198.2 million, while current liabilities totaled $187.2 million, resulting in a positive working capital position of $11.0 million. Navios Acquisition’s cash forecast indicates that it will generate sufficient cash for at least the next 12 months following August 6, 2020 to make the required principal and interest payments on its indebtedness and provide for the normal working capital requirements. Generally, our long-term sources of funds derive from cash from operations, long-term bank borrowings and other debt or equity financings. We expect that we will rely upon cash from operations and upon external financing sources, including bank borrowings, to fund acquisitions, expansion and investment capital expenditures and other commitments we have entered into. We cannot assure you that we will be able to secure adequate financing or obtaining additional funds on favorable terms, to meet our liquidity needs.

 

Navios Acquisition may use funds to repurchase its outstanding capital stock and/or indebtedness from time to time. Repurchases may be made in the open market, or through privately negotiated transactions or otherwise, in compliance with applicable laws, rules and regulations, at prices and on terms Navios Acquisition deems appropriate and subject to its cash requirements for other purposes, compliance with the covenants under Navios Acquisition’s debt agreements, and other factors management deems relevant.

 

In February 2018, the Board of Directors of Navios Acquisition authorized a stock repurchase program for up to $25.0 million of Navios Acquisition’s common stock, for two years. Stock repurchases were made from time to time for cash in open market transactions at prevailing market prices or in privately negotiated transactions. The timing and amount of repurchases under the program were determined by management based upon market conditions and other factors. Repurchases were made pursuant to a program adopted under Rule 10b5-1 under the Securities Exchange Act of

1934, as amended. The program did not require any minimum repurchase or any specific number or amount of shares of common stock and was suspended or reinstated at any time in Navios Acquisition’s discretion and without notice. Repurchases were subject to restrictions under Navios Acquisition’s credit facilities and indenture. Up to the expiration of the stock repurchase program in February 2020, Navios Acquisition had repurchased

735,251 shares since the program was initiated for approximately $7.5 million.

 

In the fourth quarter of 2019, Navios Acquisition repurchased $12.0 million of its 2021 Notes (as defined in “Long-Term Debt Obligations and Credit Arrangements – Ship Mortgage Notes”) from unaffiliated third parties in open market transactions for a cash consideration of $10.0 million.

 

Subsequently to June 30, 2020 Navios Acquisition repurchased $9.0 million of Ship Mortgage Notes for a cash consideration of $5.3 million.

 

In October 2019, Navios Acquisition completed a registered direct offering of 1,875,000 shares of its common stock at $8.00 per share, raising gross proceeds of $15.0 million. Total net proceeds of the above transactions, net of agents’ costs of $0.7 million and offering costs $0.9 million, amounted to $13.4 million.

 

On November 29, 2019, Navios Acquisition entered into a Continuous Offering Program Sales Agreement for the issuance and sale from time to time shares of Navios Acquisition’s common stock having an aggregate offering price of up to $25.0 million. The sales were being made pursuant to a prospectus supplement as part of a shelf registration statement which was set to expire in December 2019. Navios Acquisition went effective on a new shelf registration statement which was declared effective on December 23, 2019. Accordingly, an amended Sales Agreement was entered into on December 23, 2019. As before, the Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Acquisition and indemnification obligations of the parties thereto as well as certain termination rights for such parties. As of August 4, 2020, since the commencement of the program, Navios Acquisition has issued 516,250 shares of common stock and received net proceeds of $3.2 million.

 

 

Cash Flow

 

Cash flows for the six month period ended June 30, 2020 compared to the six month period ended June 30, 2019:

 

The following table presents cash flow information for the six month periods ended June 30, 2020 and 2019.

 

                 
   

Six month

period ended

June 30, 2020

   

Six month

period ended

June 30, 2019

 
    (unaudited)     (unaudited)  
Expressed in thousands of U.S. dollars                
Net cash provided by operating activities   $ 50,723     $ 1,545  
Net cash (used in)/ provided by investing activities     (44,623     25,738  
Net cash provided by/ (used in) financing activities     18,331       (31,930
Net increase/ (decrease) in cash, cash equivalents and restricted cash   $ 24,431     $ (4,647
Cash, cash equivalents and restricted cash, beginning of period     44,051       46,609  
Cash, cash equivalents and restricted cash, end of period   $ 68,482     $ 41,962  

Cash provided by operating activities for the six month period ended June 30, 2020 as compared to the six month period ended June 30, 2019:

Net cash provided by operating activities increased by $49.2 million to $50.7 million for the period ended June 30, 2020 as compared to $1.5 million for the period ended June 30, 2019. The increase is analyzed as follows:

The net income for the six month period ended June 30, 2020 was $31.9 million compared to net loss of $15.7 million for the six month period ended June 30, 2019. In determining net cash provided by operating activities for the six month period ended June 30, 2020, the net income was adjusted for the effect of depreciation and amortization of $33.2 million, $13.9 million impairment of receivable in affiliated company, $6.2 million for the amortization of drydock and special survey costs, $3.0 million for amortization and write-off of deferred finance fees and bond premium, and $0.2 million for stock based compensation.

 

The net cash inflow resulting from the change in operating assets, liabilities and payments for drydock and special survey costs of $37.6 million for the six month period ended June 30, 2020 mainly resulted from a $5.9 million increase in deferred revenue, a $3.8 million decrease in accounts receivable, a $2.9 million decrease in prepaid expenses, a $2.5 million decrease in inventories and an $0.9 million increase in accrued expenses. These were partially offset by a $20.4 million payment for drydock and special survey costs, a $20.1 million decrease in the balance due to related parties short-term, a $5.4 million decrease in accounts payable, a $3.9 million increase in other long term assets, a $2.0 million increase in the balance due from related parties, short-term and a $1.8 million increase in the balance due from related parties, long-term.

In determining net cash provided by operating activities for the six month period ended June 30, 2019, the net loss was adjusted for the effect of depreciation and amortization of $35.0 million, $4.6 million for the amortization of drydock and special survey costs, $2.3 million for amortization and write-off of deferred finance fees and bond premium, $1.7 million for equity in net earnings of affiliated companies, net of dividends received, $3.2 million for gain on sale of vessels, and $0.5 million for stock based compensation.

The net cash outflow resulting from the change in operating assets, liabilities and payments for drydock and special survey costs of $20.2 million for the six month period ended June 30, 2019 mainly resulted from a $15.8 million increase in the balance due from related parties, short-term, a $12.0 million decrease in the balance due to related parties, short-term, a $1.8 million decrease in accounts payable, a $1.7 million payment for drydock and special survey costs and a $0.4 million increase in prepaid expenses. These were partially offset by an $8.3 million decrease in accounts receivable, a $2.4 million decrease in the balance due from related parties, long-term, a $0.5 million increase in accrued expenses and a $0.3 million increase in deferred revenue.

Cash (used in)/ provided by investing activities for the six month period ended June 30, 2020 as compared to the six month period ended June 30, 2019:

Net cash (used in)/ provided by investing activities decreased by $70.3 million to $44.6 million outflow for the six month period ended June 30, 2020 from $25.7 million inflow for the six month period ended June 30, 2019.

Net cash used in investing activities for the six month period ended June 30, 2020, resulted from $44.6 million from Container vessel owning companies acquisition/ vessels improvements.

Net cash provided by investing activities for the six month period ended June 30, 2019, resulted from $33.3 million net proceeds from sale of vessel; partially mitigated by: (i) $5.6 million from Vessels improvements; and (ii) $2.0 million from loans to affiliates.

Cash provided by/ (used in) financing activities for the six month period ended June 30, 2020 as compared to the six month period ended June 30, 2019:

Net cash provided by/ (used in) financing activities increased by $50.2 million to $18.3 million inflow for the six month period ended June 30, 2020 from $31.9 million outflow for the six month period ended June 30, 2019.

Net cash provided by financing activities for the six month period ended June 30, 2020 resulted from: (i) $133.1 million loan proceeds, net of deferred finance costs; and (ii) $0.9 million in equity offering proceeds; and was partially mitigated by: (a) $106.1 million of loan repayments; and (b) $9.6 million of dividends paid.

Net cash used in financing activities for the six month period ended June 30, 2019 resulted from: (i) $121.5 million of loan repayments; (ii) $8.2 million of dividends paid; and (iii) $0.4 million for acquisition of treasury stock; that was partially mitigated by $98.2 million in loan proceeds, net of deferred finance costs.

 

 

Reconciliation of EBITDA and Adjusted EBITDA to Net Cash from Operating Activities

 

 

                                 
    Three Month
Period
Ended
June 30,
2020
(unaudited)
    Three Month
Period
Ended
June 30,
2019
(unaudited)
    Six Month
Period
Ended
June 30,
2020
(unaudited)
    Six Month
Period
Ended
June 30,
2019
(unaudited)
 
Expressed in thousands of U.S. dollars                                
Net cash provided by/ (used in) operating activities   $ 20,206     $ (8,343 )   $ 50,723     $ 1,545  
Net decrease/ (increase) in operating assets     12,592       (2,598 )     (1,369 )     5,443  
Net increase in operating liabilities     14,321       10,521       18,718       13,102  
Net interest cost     21,676       21,400       43,516       42,169  
Amortization and write-off of deferred finance costs and bond premium     (1,533 )     (1,319 )     (3,045 )     (2,293 )
Impairment of receivable in Navios Europe II / Equity in net earnings of affiliated companies     —         889       (13,900 )     1,734  
Payments for dry dock and special survey costs     5,473       1,570       20,421       1,662  
Gain on sale of vessels     —         2,594       —         3,245  
Stock-based compensation     (123 )     (231 )     (246 )     (460 )
   
 
 
   
 
     
 
 
   
 
   
EBITDA     72,612       24,483       114,818       66,147  
Gain on sale of vessels     —         (2,594 )     —         (3,245 )
Impairment of receivable in Navios Europe II     —         —         13,900       —    
Stock-based compensation     123       231       246       460  
Adjusted EBITDA     72,735       22,120       128,964       63,362  

 

 

    Three Month
Period
Ended
June 30,
2020
(unaudited)
    Three Month
Period
Ended
June 30,
2019
(unaudited)
    Six Month
Period
Ended
June 30,
2020
(unaudited)
    Six Month
Period
Ended
June 30,
2019
(unaudited)
 
Net cash provided by/ (used in) operating activities   $ 20,206     $ (8,343 )   $ 50,723     $ 1,545  
Net cash (used in) / provided by investing activities   $ (38,741 )   $ 8,288     $ (44,623 )   $ 25,738  
Net cash provided by/ (used in) financing activities   $ 35,949     $ (25,881 )   $ 18,331     $ (31,930 )

 

EBITDA in this document represents net income/ (loss) before interest and finance costs, before depreciation and amortization and before income taxes. Adjusted EBITDA in this document represents EBITDA excluding certain items, such as stock-based compensation, gain on sale of vessels, gain/ (loss) on debt repayment and OTTI loss on equity investment.

We use Adjusted EBITDA as liquidity measure and reconcile EBITDA and Adjusted EBITDA to net cash provided by operating activities, the most comparable U.S. GAAP liquidity measure. EBITDA in this document is calculated as follows: net cash provided by operating activities adding back, when applicable and as the case may be, the effect of: (i) net (increase)/ decrease in operating assets; (ii) net increase in operating liabilities; (iii) net interest cost; (iv) amortization and write-off of deferred finance costs and bond premium; (v) impairment of receivable in Navios Europe II / Equity in net earnings of affiliated companies; (vi) payments for dry dock and special survey costs; (vii) gain on sale of vessel; and (viii) stock- based compensation. Navios Acquisition believes that EBITDA and Adjusted EBITDA are each the basis upon which liquidity can be assessed and present useful information to investors regarding Navios Acquisition’s ability to service and/or incur indebtedness, pay capital expenditures, meet working capital requirements and pay dividends. Navios Acquisition also believes that EBITDA and Adjusted EBITDA are used: (i) by potential lenders to evaluate potential transactions; (ii) to evaluate and price potential acquisition candidates; and (iii) by securities analysts, investors and other interested parties in the evaluation of companies in our industry.

EBITDA and Adjusted EBITDA have limitations as an analytical tool, and should not be considered in isolation or as a substitute for the analysis of Navios Acquisition’s results as reported under U.S. GAAP. Some of these limitations are: (i) EBITDA and Adjusted EBITDA do not reflect changes in, or cash requirements for, working capital needs; and (ii) although depreciation and amortization are non-cash charges, the assets being depreciated and amortized may have to be replaced in the future. EBITDA and Adjusted EBITDA do not reflect any cash requirements for such capital expenditures. Because of these limitations, EBITDA and Adjusted EBITDA should not be considered as a principal indicator of Navios Acquisition’s performance. Furthermore, our calculation of EBITDA and Adjusted EBITDA may not be comparable to that reported by other companies due to differences in methods of calculation.

Adjusted EBITDA affected by the items described in the table above, for the three month period ended June 30, 2020 increased by $50.6 million to $72.7 million, as compared to $22.1 million for the same period of 2019. The increase in Adjusted EBITDA was mainly due to a: (a) $53.6 million increase in revenue; (b) $0.7 million decrease in time charter and voyage expenses; (c) $0.4 million decrease in general and administrative expenses (excluding stock-based compensation); and (d) $0.2 million increase in other expense; partially mitigated by a: (i) $3.4 million increase in operating expenses mainly due to the acquisition of the five product tankers of Navios Europe I in December 2019 and to the amendment of the fees under the management agreement, that was also partially impacted by the sale of three VLCCs in 2019; and (ii) $0.9 million decrease in equity in net earnings of affiliated companies.

Adjusted EBITDA affected by the items described in the table above, for the six month period ended June 30, 2020 increased by $65.6 million to $129.0 million, as compared to $63.4 million for the same period of 2019. The increase in Adjusted EBITDA was mainly due to a: (a) $74.4 million increase in revenue; and (b) $1.5 million decrease in general and administrative expenses (excluding stock-based compensation); partially mitigated by a: (i) $5.3 million increase in operating expenses mainly due to the acquisition of the five product tankers of Navios Europe I in December 2019 and to the amendment of the fees under the management agreement, that was also partially impacted by the sale of three VLCCs in 2019; (ii) $1.7 million decrease in equity in net earnings of affiliated companies; (iii) $1.3 million decrease in other income; (iv) $1.0 million increase in other expense; (v) $0.6 million increase in time charter and voyage expenses; and (vi) $0.4 million increase in direct vessel expenses (other than amortization of dry dock and special survey cost).

 

Long-Term Debt Obligations and Credit Arrangements

 

Ship Mortgage Notes

 

8 1/8% First Priority Ship Mortgages: On November 13, 2013, the Company and its wholly owned subsidiary, Navios Acquisition Finance (US) Inc. (“Navios Acquisition Finance” and together with the Company, the 2021 Co-Issuers”) issued $610.0 million in first priority ship mortgage notes (the “Existing Notes”) due on November 15, 2021 at a fixed rate of 8.125%.

 

On March 31, 2014, the Company completed a sale of $60.0 million of its first priority ship mortgage notes due in 2021 (the “Additional Notes,”

and together with the Existing Notes, the “2021 Notes”). The terms of the Additional Notes are identical to the Existing Notes and were issued at

103.25% plus accrued interest from November 13, 2013.

 

The 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of Navios Acquisitions subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries.

 

The 2021 Co-Issuers currently have the option to redeem the 2021 Notes in whole or in part, at a fixed price of 106.094% of the principal amount, which price declines ratably until it reaches par in 2019, plus accrued and unpaid interest, if any.

 

In addition, upon the occurrence of certain change of control events, the holders of the 2021 Notes will have the right to require

the 2021 Co-Issuers to repurchase some or all of the 2021 Notes at 101% of their face amount, plus accrued and unpaid interest to the repurchase date.

 

The 2021 Notes contain covenants which, among other things, limit the incurrence of additional indebtedness, issuance of certain preferred stock, the payment of dividends, redemption or repurchase of capital stock or making restricted payments and investments, creation of certain liens, transfer or sale of assets, entering in transactions with affiliates, merging or consolidating or selling all or substantially all of the 2021 Co-Issuers’ properties and assets and creation or designation of restricted subsidiaries.

 

Following the acquisition of the Star N and the Hector N MR1 product tankers from Navios Europe I, the vessels were offered as collateral under its ship mortgage notes, in substitution of an amount of $25.4 million that was held as cash collateral from the sale proceeds of the Nave Electron.

 

In the fourth quarter of 2019, Navios Acquisition repurchased $12.0 million of its ship mortgage notes for a cash consideration of $10.0 million resulting in a gain on bond repurchase of $1.9 million net of deferred fees written-off.

 

Subsequently to June 30, 2020, Navios Acquisition repurchased $9.0 million of Ship Mortgage Notes for a cash consideration of $5.3 million.

 

The 2021 Co-Issuers were in compliance with the covenants as of June 30, 2020.

 

The Existing Notes and the Additional Notes are treated as a single class for all purposes under the indenture including, without limitation, waivers, amendments, redemptions and other offers to purchase and the Additional Notes rank evenly with the Existing Notes. The Additional Notes and the Existing Notes have different CUSIP numbers.

 

Guarantees

 

The Company’s 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of the Company’s subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries. The Company’s 2021 Notes are unregistered. The guarantees of our subsidiaries that own mortgaged vessels are senior secured guarantees and the guarantees of our subsidiaries that do not own mortgaged vessels are senior unsecured guarantees. All subsidiaries, including Navios Acquisition Finance and Navios Midstream subsidiaries are 100% owned. Navios Acquisition does not have any independent assets or operations.

 

 

Credit Facilities

 

As of June 30, 2020, the Company had secured credit facilities with various commercial banks with a total outstanding balance of $0.2 billion.

 

The purpose of the facilities was to finance the construction or acquisition of vessels or refinance existing indebtedness. All of the facilities are denominated in U.S. Dollars and bear interest based on LIBOR plus spread ranging from 230 bps to 410 bps per annum. The facilities are repayable in either semi-annual or quarterly installments, followed by balloon payments with maturities, ranging from November 2020 to October 2027. See also “Contractual obligations” below.

 

On December 6, 2010, Navios Acquisition entered into a loan agreement with Eurobank Ergasias S.A. of up to $52.0 million out of which $46.2 million has been drawn (divided into two tranches of $23.1 million each) to partially finance the acquisition costs of two LR1 product tanker vessels. Each tranche of the facility was repayable in 32 equal quarterly installments of $0.3 million each with a final balloon payment of $13.3 million, to be repaid on the last repayment date. The maturity date of the loan was in the third and fourth quarter of 2020. The repayment of each tranche started three months after the delivery date of the respective vessel. It bore interest at a rate of LIBOR plus 300 bps. The loan also required compliance with certain financial covenants. The outstanding balance under the facility of amount of $27.5 million was fully prepaid in June 2020.

 

In November 2015, Navios Acquisition, entered into a term loan facility of up to $125.0 million (divided into five tranches) with Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB for the: (i) financing of the purchase price of the Nave Spherical; and (ii) the refinancing of the existing facility with Deutsche Bank AG Filiale Deutschlandgescäft and Skandinaviska Enskilda Banken AB, dated July 18, 2014. Four of the five tranches of the facility are repayable in 20 quarterly installments of between approximately $0.4 million and $1.9 million, each with a final balloon repayment to be made on the last repayment date. The fifth tranche is repayable in 16 quarterly installments of between approximately $0.07 million and $0.8 million, each. The maturity date of the loan is in the fourth quarter of 2020. The credit facility bears interest at LIBOR plus 295 bps per annum. On March 23, 2018, Navios Acquisition prepaid $26.8 million, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Equinox and the Nave Pyxis, which substituted the Nave Galactic as collateral vessels under the 8 1/8% 2021 Notes. On June 18, 2020, Navios Acquisition prepaid $16.3 million, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Sextans. As of June 30, 2020, the outstanding balance under this facility was $19.1 million.

 

In December 2019, Navios Acquisition entered into a loan agreement with Deutsche Bank AG Filiale Deutschlandgeschäft of up to $32.5 million in order to finance one MR1 and two LR1s acquired from Navios Europe I. The facility was repayable in one single repayment on the last repayment date. The facility matured in June 2020 and bore interest at LIBOR plus 400 bps per annum. In the second quarter of 2020, Navios Acquisition fully repaid the amount of $32.5 million.

 

In June 2020, Navios Acquisition entered into a loan agreement with Eurobank S.A. of $20.8 million in order to refinance two LR1s. The facility is repayable in 16 quarterly installments of $0.8 million each with a final balloon payment of $8.0 million repayable on the last repayment date. The facility matures in June 2024 and bears interest at LIBOR plus 300 bps per annum. As of June 30, 2020, an amount of $20.8 million was outstanding under this facility.

 

In June 2020, Navios Acquisition entered into a loan agreement with Hamburg Commercial Bank AG of $41.7 million in order to acquire seven containerships. The facility is repayable in 4 quarterly installments with a final balloon payment of $21.7 million repayable on the last repayment date. The facility matures in May 2021 and bears interest at LIBOR plus 375 bps per annum. As of June 30, 2020, an amount of $41.7 million was outstanding under this facility and is presented under “Liabilities associated with assets held for sale”. (Please refer to Note 7)

 

Amounts drawn under the facilities are secured by first preferred mortgages on Navios Acquisition’s vessels and other collateral and are guaranteed by each vessel-owning subsidiary. The credit facilities contain a number of restrictive covenants that prohibit or limit Navios Acquisition from, among other things: incurring or guaranteeing indebtedness; entering into affiliate transactions; changing the flag, class, management or ownership of Navios Acquisition’s vessels; changing the commercial and technical management of Navios Acquisition’s vessels; selling Navios Acquisition’s vessels; and subordinating the obligations under each credit facility to any general and administrative costs relating to the vessels, including the fixed daily fee payable under the Management Agreement. The credit facilities also require Navios Acquisition to comply with the ISM Code and ISPS Code and to maintain valid safety management certificates and documents of compliance at all times.

 

As of June 30, 2020, no amount was available to be drawn from the Company’s facilities.

 

Sale and Leaseback Agreements

 

As of June 30, 2020, the Company had sale and leaseback agreements with various unrelated third parties with a total outstanding balance of $0.4 billion.

 

As of June 30, 2020 and December 31, 2019, the deposits under the sale and leaseback agreements were $9.1 million and $5.5 million, respectively, and are presented under “Other long term assets” in the condensed consolidated balance sheets.

 

In June 2020, Navios Acquisition entered into sale and leaseback agreements with unrelated third parties for $72.1 million in order to refinance one MR1, one MR2 and two LR1s. Navios Acquisition has a purchase obligation to acquire the vessels at the end of the lease term and under ASC 842-40, the transaction was determined to be a failed sale. The agreements will be repaid through periods ranging from four to seven years in consecutive quarterly installments of up to $1.8 million each, with a repurchase obligation of up to $27.0 million in total. The sale and leaseback arrangements bear interest at LIBOR plus a margin ranging from 390 bps to 410 bps per annum, depending on the vessel financed. As of June 30, 2020, the outstanding balance under the agreements was $72.1 million. 

 

Amounts drawn under the facilities are secured by first preferred mortgages on Navios Acquisition’s vessels and other collateral and are guaranteed by each vessel-owning subsidiary. The credit facilities contain a number of restrictive covenants that prohibit or limit Navios Acquisition from, among other things: incurring or guaranteeing indebtedness; entering into affiliate transactions; changing the flag, class, management or ownership of Navios Acquisition’s vessels; changing the commercial and technical management of Navios Acquisition’s vessels; selling Navios Acquisition’s vessels; and subordinating the obligations under each credit facility to any general and administrative costs relating to the vessels, including the fixed daily fee payable under the Management Agreement. The credit facilities also require Navios Acquisition to comply with the ISM Code and ISPS Code and to maintain valid safety management certificates and documents of compliance at all times.

 

As of June 30, 2020, the Company was in compliance with its covenants.

 

 

Off-Balance Sheet Arrangements – Legal Proceedings

 

The Company is involved in various disputes and arbitration proceedings arising in the ordinary course of business. Provisions have been recognized in the financial statements for all such proceedings where the Company believes that a liability may be probable, and for which the amounts are reasonably estimable, based upon facts known at the date of the financial statements were prepared. In the opinion of the management, the ultimate disposition of these matters individually and in aggregate will not materially affect the Company’s financial position, results of operations or liquidity.

 

 

Contractual Obligations

 

The following table summarizes our long-term contractual obligations as of June 30, 2020:

 

 
 

 

                                         
    Payments due by period (Unaudited)  

(In thousands of U.S. dollars)

  Less than
1 year
    1-3 years     3-5 years     More than
5 years
    Total  
Long-term debt obligations(1)   $ 102,608     $ 824,984     $ 125,052     $ 121,263     $ 1,173,907  
Lease Obligations (Time Charters) for vessels to be delivered(2)     10,397       59,174       66,960       264,952       401,483  
Total contractual obligations   $ 113,005       884,158       192,012       386,215     $ 1,575,390  

 

(1) The amount identified does not include interest costs associated with the outstanding credit facilities, which are based on LIBOR, plus the costs of complying with any applicable regulatory requirements and a margin ranging from 230 bps to 410 bps per annum or the $670.0 million 2021 Notes fixed rate of 8.125%.

 

(2) In August 2018, Navios Acquisition agreed to the main terms of a 12-year bareboat charter-in agreement with de-escalating purchase options for two newbuild Japanese VLCCs delivering in each of the fourth quarter of 2020 and the first quarter of 2021. In the first quarter of 2019, we exercised our option for a third VLCC newbuilding under a bareboat operating lease with an expected delivery in the second quarter of 2021. In the second quarter of 2020, Navios Acquisition exercised its option for a fourth Japanese newbuild VLCC under a bareboat operating lease with an expected delivery in the second quarter of 2022.

Navios Acquisition leases office space in Monaco pursuant to a five year lease agreement, dated July 1, 2018, that expires in June 2023, for a monthly rent of approximately $0.01 million.

Related Party Transactions

Vessel operating expenses (management fees): Pursuant to the Management Agreement dated May 28, 2010 and as amended in May 2012, May 2014, May 2016 and May 2018, the Manager provided commercial and technical management services to Navios Acquisition’s vessels for a fixed daily fee of: (a) $6,500 per MR2 product tanker and chemical tanker vessel; (b) $7,150 per LR1 product tanker vessel; and (c) the current daily fee of $9,500 per VLCC, through May 2020.

Following the Merger with Navios Midstream, completed on December 13, 2018, the Management Agreement covers vessels acquired.

On August 29, 2019, Navios Acquisition entered into a sixth amendment (the “Sixth Amendment”) to the Management Agreement (as amended, the “Management Agreement”) with Navios Tankers Management Inc. The Sixth Amendment, among other changes, extends the duration of the Management Agreement until January 1, 2025, with an automatic renewal for an additional five years, unless earlier terminated by either party, and provides for payment of a termination fee by Navios Acquisition in the event the Management Agreement is terminated on or before December 31, 2024. The Sixth Amendment also sets forth the management fees for the period through December 31, 2019 and the two-year period commencing January 1, 2020, which management fees exclude dry-docking expenses, which are reimbursed at cost by Navios Acquisition: (a) $7,150 and $7,225, respectively, daily rate per owned LR1 product tanker vessel; (b) $6,500 and $6,825, respectively, daily rate per owned MR2 product tanker vessel and chemical tanker vessel; (c) $9,500 and $9,650, respectively, daily rate per VLCC tanker vessel; and (d) effective in both periods, $50 per vessel daily rate for technical and commercial management services. Commencing January 1, 2022, the fees described in subsections (a) through (c) are subject to an annual increase of 3%, unless otherwise agreed and provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Management Agreement is terminated on or before December 31, 2024.

Following the liquidation of Navios Europe I (“Liquidation of Navios Europe I”) in December 2019, which resulted in the acquisition of three MR1 product tankers and two LR1 product tankers, as per the terms of the Management Agreement, management fees are fixed for two years commencing from January 1, 2020 at: (a) $6,825 per day per MR1, MR2 product tanker and chemical tanker; (b) $7,225 per day per LR1 product tanker vessel; and (c) $9,500 per VLCC. The Management Agreement also provides for a technical and commercial management fee of $50 per day per vessel and an annual increase of 3% after January 1, 2022 for the remaining period unless agreed otherwise.

Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containerships on June 29, 2020. As per the amendment to the Management Agreement dated June 26, 2020, the management fees are fixed at: (a) $5,250 per day per Container vessel of 1,500 TEU up to 1,999 TEU; and (b) $6,100 per day per Container vessel of 2,000 TEU up to 3,450 TEU.

 

Drydocking expenses are reimbursed at cost for all vessels.

 

For the six month periods ended June 30, 2020 and 2019 certain extraordinary fees and costs related to regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation and under Company’s Management Agreement amounted to $3.7 million and $5.6 million, respectively, and are presented under “Container vessel owning companies acquisition/ vessels improvements” in the condensed Consolidated Statements of Cash Flows. (Please refer to Note 5)

Total vessel operating expenses for the three month periods ended June 30, 2020 and 2019 amounted to $29.8 million and $26.5 million, respectively. Total vessel operating expenses for the six month periods ended June 30, 2020 and 2019 amounted to $59.6 million and $54.4 million, respectively.

General and administrative expenses: On May 28, 2010, Navios Acquisition entered into an Administrative Services Agreement with the Manager, pursuant to which the Manager provides certain administrative management services to Navios Acquisition which include: bookkeeping, audit and accounting services, legal and insurance services, administrative and clerical services, banking and financial services, advisory services, client and investor relations and other services. The Manager is reimbursed for reasonable costs and expenses incurred in connection with the provision of these services. In May 2014, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager, until May 2020.

In August 2019, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager until January 1, 2025, to be automatically renewed for another five years. The agreement also provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Administrative Services Agreement is terminated on or before December 31, 2024.

Following the Liquidation of Navios Europe I in December 2019, Navios Acquisition acquired three MR1 product tankers and two LR1 product tankers. The Administrative Services Agreement also covers the vessels acquired.

Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containerships on June 29, 2020. The Administrative Services Agreement also covers the vessels acquired.

For each of the three month periods ended June 30, 2020 and 2019, the expense arising from administrative services rendered by the Manager amounted to $3.0 million and $2.8 million, respectively. For each of the six month periods ended June 30, 2020 and 2019 the expense arising from administrative services rendered by the Manager amounted to $6.0 million and $5.6 million, respectively.

Balance due from/ (to) related parties (exluding Navios Europe II): Balance due from related parties (both short and long-term) as of June 30, 2020, was $16.7 million (December 31, 2019: $14.7) and balance due to related parties as of June 30, 2020 was $0 (December 31, 2019:$32.2 million). The balances mainly consisted of administrative expenses, costs related to regulatory requirements including ballast water treatment system, special survey and dry docking expenses, as well as operating expenses and working capital deposits, in accordance with the Management Agreement. The balance due from related parties excludes the amount of the working capital deposits, in accordance with the Management Agreement of $1.8 million for the seven containerships acquired after the liquidation of Navios Europe II. The amount of $1.8 million is included under “Assets held for sale” in the condensed consolidated balance sheets.

Navios Midstream Merger Agreement: On December 13, 2018, Navios Acquisition completed the Merger contemplated by the Merger Agreement, dated as of October 7, 2018, by and among Navios Acquisition, its direct wholly-owned subsidiary Merger Sub, Navios Midstream and NAP General Partner. Pursuant to the Merger Agreement, Merger Sub merged with and into Navios Midstream, with Navios Midstream surviving as a wholly-owned subsidiary of Navios Acquisition.

 

Omnibus Agreements

Acquisition Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Acquisition Omnibus Agreement”) with Navios Maritime Holdings Inc. (“Navios Holdings”) and Navios Maritime Partners L.P. (“Navios Partners”) in connection with the closing of Navios Acquisition’s initial vessel acquisition, pursuant to which, among other things, Navios Holdings and Navios Partners agreed not to acquire, charter-in or own liquid shipment vessels, except for container vessels and vessels that are primarily employed in operations in South America without the consent of an independent committee of Navios Acquisition. In addition, Navios Acquisition, under the Acquisition Omnibus Agreement, agreed to cause its subsidiaries not to acquire, own, operate or charter-in drybulk carriers under specific exceptions. Under the Acquisition Omnibus Agreement, Navios Acquisition and its subsidiaries grant to Navios Holdings and Navios Partners a right of first offer on any proposed sale, transfer or other disposition of any of its drybulk carriers and related charters owned or acquired by Navios Acquisition. Likewise, Navios Holdings and Navios Partners agreed to grant a similar right of first offer to Navios Acquisition for any liquid shipment vessels they might own. These rights of first offer will not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the existing terms of any charter or other agreement with a counterparty; or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third party.

Midstream Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Midstream Omnibus Agreement”), with Navios Midstream, Navios Holdings and Navios Partners in connection with the Navios Midstream IPO, pursuant to which Navios Acquisition, Navios Midstream, Navios Holdings, Navios Partners and their controlled affiliates generally have agreed not to acquire or own any VLCCs, crude oil tankers, refined petroleum product tankers, liquefied petroleum gas (“LPG”) tankers or chemical tankers under time charters of five or more years without the consent of the Navios Midstream General Partner. The Midstream Omnibus Agreement contains significant exceptions that have allowed Navios Acquisition, Navios Holdings, Navios Partners or any of their controlled affiliates to compete with Navios Midstream under specified circumstances.

Under the Midstream Omnibus Agreement, Navios Midstream and its subsidiaries have granted to Navios Acquisition a right of first offer on any proposed sale, transfer or other disposition of any of its VLCCs or any crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers and related charters owned or acquired by Navios Midstream. Likewise, Navios Acquisition have agreed (and will cause its subsidiaries to agree) to grant a similar right of first offer to Navios Midstream for any of the VLCCs, crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers under charter for five or more years it might own. These rights of first offer do not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the terms of any charter or other agreement with a charter party, or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third-party.

Navios Containers Omnibus Agreement: In connection with the Navios Maritime Containers Inc. (“Navios Containers”) private placement and listing on the Norwegian over-the-counter market effective June 8, 2017, Navios Acquisition entered into an omnibus agreement with Navios Containers, Navios Midstream, Navios Holdings and Navios Partners, pursuant to which Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream have granted to Navios Containers a right of first refusal over any container vessels to be sold or acquired in the future. The omnibus agreement contains significant exceptions that will allow Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream to compete with Navios Containers under specified circumstances.

Navios Midstream General Partner Option Agreement with Navios Holdings: Navios Acquisition entered into an option agreement, dated November 18, 2014, with Navios Holdings under which Navios Acquisition grants Navios Holdings the option to acquire any or all of the outstanding membership interests in Navios Midstream General Partner and all of the incentive distribution rights in Navios Midstream representing the right to receive an increasing percentage of the quarterly distributions when certain conditions are met. The option shall expire on November 18, 2024. Any such exercise shall relate to not less than twenty-five percent of the option interest and the purchase price for the acquisition of all or part of the option interest shall be an amount equal to its fair market value.

 Balance due from Navios Europe II: Navios Holdings, Navios Acquisition and Navios Partners have made available to Navios Europe II revolving loans up to $43.5 million to fund working capital requirements. In March 2017, the availability under the Navios Revolving Loans II was increased by $14.0 million.

 The decline in the fair value of the investment was considered as other-than-temporary and, therefore, an aggregate loss of $13.9 million was recognized and included in the accompanying condensed consolidated statements of income for the three month period ended March 31, 2020, and the six month period ended June 30, 2020, as "Impairment of receivable in affiliated company/ Equity in net earnings of affiliated companies." The fair value of the Company's investment was determined based on the liquidation value of Navios Europe II, determined on the individual fair values assigned to the assets and liabilities of Navios Europe II.

Following the Liquidation of Navios Europe II, the balance due from Navios Europe II as of June 30, 2020 was $0. The balance due from Navios Europe II as of December 31, 2019 was $44.9 million which included the Navios Revolving Loans II of $20.7 million, the non-current amount of $7.6 million related to the accrued interest income earned under the Navios Term Loans II under the caption “Due from related parties, long-term” and the accrued interest income earned under the Navios Revolving Loans II of $16.7 million under the caption “Due from related parties, short-term.”

Quantitative and Qualitative Disclosures about Market Risks

Foreign Exchange Risk

Our functional and reporting currency is the U.S. dollar. We engage in worldwide commerce with a variety of entities. Although our operations may expose us to certain levels of foreign currency risk, our transactions are predominantly U.S. dollar denominated. Transactions in currencies other than U.S. dollars are translated at the exchange rate in effect at the date of each transaction. Differences in exchange rates during the period between the date a transaction denominated in a foreign currency is consummated and the date on which it is either settled or translated, are recognized in the statements of income.

Interest Rate Risk

As of June 30, 2020, Navios Acquisition had a total of $1,174.0 million in long-term and short-term indebtedness. Borrowings under our credit facilities bear interest at rates based on a premium over LIBOR in U.S dollars except for the interest rate on the Existing Notes and the Additional Notes which is fixed. Therefore, we are exposed to the risk that our interest expense may increase if interest rates rise. For the three month period ended June 30, 2020, we paid interest on our outstanding debt at a weighted average interest rate of 6.61%. A 1% increase in LIBOR would have increased our interest expense for the three month period ended June 30, 2020 by $1.3 million. For the six month period ended June 30, 2020, we paid interest on our outstanding debt at a weighted average interest rate of 4.40%. A 1% increase in LIBOR would have increased our interest expense for the six month period ended June 30, 2020 by $2.6 million.

Concentration of Credit Risk

Financial instruments, which potentially subject us to significant concentrations of credit risk, consist principally of trade accounts receivable. We closely monitor our exposure to customers for credit risk. We have policies in place to ensure that we trade with customers with an appropriate credit history. For the six month period ended June 30, 2020, Navig8 Chemicals Shipping and Trading Co (“Navig8”) accounted for 32.4% and China ZhenHua Oil Co., Ltd accounted for 14.4% respectively, of Navios Acquisition’s revenue. For the year ended December 31, 2019, Navig8 and COSCO Shipping Tanker (Dalian) Co., Ltd. accounted for 34.6%, and 10.0%, respectively, of Navios Acquisition’s revenue.

Cash and Cash Equivalents

Cash deposits and cash equivalents in excess of amounts covered by government-provided insurance are exposed to loss in the event of non-performance by financial institutions. Navios Acquisition does maintain cash deposits and equivalents in excess of government-provided insurance limits. Navios Acquisition also minimizes exposure to credit risk by dealing with a diversified group of major financial institutions.

Inflation

Inflation has had a minimal impact on vessel operating expenses and general and administrative expenses. Our management does not consider inflation to be a significant risk to expenses in the current and foreseeable economic environment.

 

Recent Accounting Pronouncements

In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting”, which provides guidance to alleviate the burden in accounting for reference rate reform by allowing certain expedients and exceptions in applying generally accepted accounting principles to contract modifications, hedging relationships, and other transactions impacted by reference rate reform. The provisions of ASU 2020-04 apply only to those transactions that reference LIBOR or another reference rate expected to be discontinued due to reference rate reform. Adoption of the provisions of ASU 2020-04 is optional and is effective from March 12, 2020 through December 31, 2022. We are currently evaluating the impact of ASU 2020-04 on our condensed consolidated financial statements.

In August 2018, FASB issued ASU 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement”. This update modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for fiscal years beginning after December 15, 2019, and earlier adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

In October 2018, FASB issued ASU 2018-17, Consolidation (Topic 810): “Targeted Improvements to Related Party Guidance for Variable Interest Entities” (“ASU 2018-17”). ASU 2018-17 provides that indirect interests held through related parties in common control arrangements should be considered on a proportional basis for determining whether fees paid to decision makers and service providers are variable interests. This is consistent with how indirect interests held through related parties under common control are considered for determining whether a reporting entity must consolidate a Variable Interest Entity (“VIE”). For Public business entities the amendments are effective for fiscal years beginning after December 15, 2019, and interim periods within those fiscal years. Early adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

In January 2017, the FASB issued ASU No. 2017-04, Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment. The ASU is effective for periods beginning after December 15, 2019, with an election to adopt early. The ASU requires only a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value. It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

In June 2016, FASB issued ASU 2016-13, “Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments.” This standard requires entities to measure all expected credit losses of financial assets held at a reporting date based on historical experience, current conditions, and reasonable and supportable forecasts in order to record credit losses in a more timely matter. ASU 2016-13 also amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The standard is effective for interim and annual reporting periods beginning after December 15, 2019, although early adoption is permitted for interim and annual periods beginning after December 15, 2018. In November 2018, FASB issued ASU 2018-19 “Codification Improvements to topic 326, Financial Instruments-Credit Losses”. The amendments in this update clarify that operating lease receivables are not within the scope of ASC 326-20 and should instead be accounted for under the new leasing standard, ASC 842. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

Critical Accounting Policies

Navios Acquisition’s interim consolidated financial statements have been prepared in accordance with U.S. GAAP. The preparation of these financial statements requires Navios Acquisition to make estimates in the application of our accounting policies based on the best assumptions, judgments and opinions of management. Actual results may differ from these estimates under different assumptions or conditions.

Critical accounting policies are those that reflect significant judgments or uncertainties, and potentially result in materially different results under different assumptions and conditions. Other than as described below, all significant accounting policies are as described in Note 2 to the consolidated financial statements included in the Company’s Annual Report on Form 20-F for the year ended December 31, 2019 filed with the SEC on March 6, 2020. It is the Company’s policy to dispose of vessels and other fixed assets when suitable opportunities occur and not necessarily to keep them until the end of their useful life. The Company classifies assets and disposal groups as being held for sale when the following criteria are met: management has committed to a plan to sell the asset (disposal group); the asset (disposal group) is available for immediate sale in its present condition; an active program to locate a buyer and other actions required to complete the plan to sell the asset (disposal group) have been initiated; the sale of the asset (disposal group) is probable, and transfer of the asset (disposal group) is expected to qualify for recognition as a completed sale within one year; the asset (disposal group) is being actively marketed for sale at a price that is reasonable in relation to its current fair value; and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long-lived assets or disposal groups classified as held for sale are measured at the lower of their carrying amount or fair value less cost to sell. These assets are not depreciated once they meet the criteria to be held for sale.

Exhibit List

Exhibit Number

 

4.1 Seventh Amendment to the Management Agreement, dated as of December 13, 2019, by and between Navios Maritime Acquisition Corporation and Navios Tankers Management Inc.

4.2 Eighth Amendment to the Management Agreement, dated as of June 26, 2020, by and between Navios Maritime Acquisition Corporation and Navios Tankers Management Inc.

4.3 Loan Agreement, dated June 25, 2020, of up to $20.8 million, among Aphrodite Shipping Corporation and Dione Shipping Corporation, Eurobank S.A. HSH Nordbank AG, and the Banks and Financial Institutions listed therein

4.4 Loan Agreement, dated June 26, 2020, of up to $41.7 million, among Cerulean Shipping Corporation, Cadmium Shipping Corporation, Celadon Shipping Corporation, Buff Shipping Corporation, Brandeis Shipping Corporation, Boysenberry Shipping Corporation and Bole Shipping Corporation, Hamburg Commercial Bank AG, and the Banks and Financial Institutions listed therein

4.5 Sample Bareboat Charter and Memorandum of Agreement, dated June 12, 2020, for the sale and leaseback transaction among Great Rhodes Limited, Great Skyros Limited, Great Crete Limited and Great Rhea Limited, being subsidiaries of AVIC International Leasing Co., Ltd., and Rhodes Shipping Corporation, Skyros Shipping Corporation, Crete Shipping Corporation and Rhea Shipping Corporation, being wholly owned subsidiaries of Navios Maritime Acquisition Corporation, providing for the sale and leaseback of the Nave Cassiopeia, Nave Sextans, Nave Cetus and Perseus N, respectively.

 

 

 

UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET AT JUNE 30, 2020 AND AUDITED CONDENSED

CONSOLIDATED BALANCE SHEET AT DECEMBER 31, 2019 F-2

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE AND SIX MONTH PERIODS ENDED JUNE 30,

2020 AND 2019 F-3

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS FOR SIX MONTH PERIOD ENDED

JUNE 30, 2020 AND 2019 F-4

UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY FOR THE THREE AND SIX MONTH PERIODS ENDED JUNE 30, 2020 AND 2019 F-5

NOTES TO THE CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) F-6

 

 

 

CONDENSED CONSOLIDATED BALANCE SHEETS

(Expressed in thousands of U.S. Dollars except share data)

 

                         
    Notes     June 30,
2020
(unaudited)
    December 31,
2019
 
ASSETS                        
Current assets                        
Cash and cash equivalents     3     $ 67,718     $ 43,561  
Restricted cash     3       764       490  
Accounts receivable, net             29,563       34,235  
Due from related parties, short term     8,13       2,039       16,688  
Prepaid expenses and other current assets     4       9,703       12,826  
Inventories     4       5,440       6,208  
Assets held for sale             83,006        
Total current assets             198,233       114,008  
Vessels, net     5       1,318,656       1,348,251  
Goodwill             1,579       1,579  
Other long-term assets     2,11       9,383       5,456  
Deferred dry dock and special survey costs, net             43,169       37,133  
Investment in affiliates     8             6,650  
Due from related parties, long-term     8,11,13       14,658       42,878  
Total non-current assets             1,387,445       1,441,947  
Total assets           $ 1,585,678     $ 1,555,955  
LIABILITIES AND STOCKHOLDERS’ EQUITY                        
Current liabilities                        
Accounts payable           $ 9,776     $ 15,355  
Accrued expenses     10       14,078       14,337  
Due to related parties, short-term     13             32,150  
Dividends payable     8       4,809       4,711  
Deferred revenue             8,290       2,433  
Current portion of long-term debt, net of deferred finance costs     11       99,956       172,953  
Liabilities associated with assets held for sale             50,323        
Total current liabilities             187,232       241,939  
Long-term debt, net of current portion, premium and net of deferred finance costs     11       1,061,078       1,000,164  
Total non-current liabilities             1,061,078       1,000,164  
Total liabilities           $ 1,248,310     $ 1,242,103  
Commitments and contingencies     14                    
Stockholders’ equity                        
Preferred stock, $0.0001 par value; 10,000,000 shares authorized; no shares of Series C issued and outstanding as of June 30, 2020 and December 31, 2019     15                    
Common stock, $0.0001 par value; 250,000,000 shares authorized; 16,089,890 and 15,873,391 issued and outstanding as of June 30, 2020 and December 31, 2019, respectively     15       2       2  
Additional paid-in capital     15       512,905       521,275  
Accumulated deficit             (175,539)     (207,425)  
Total stockholders’ equity             337,368       313,852  
Total liabilities and stockholders’ equity           $ 1,585,678     $ 1,555,955  

 

 

See unaudited condensed notes to consolidated financial statements.

 

 

 

 

 

 

 

 

 

 

 

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(Expressed in thousands of U.S. dollars- except share and per share data)

 

 

 

 

                                         
    Notes     For the Three
Months
Ended
June 30, 2020
(unaudited)
    For the Three
Months
Ended
June 30, 2019
(unaudited)
    For the Six
Months
Ended
June 30, 2020
(unaudited)
    For the Six
Months
Ended
June 30, 2019
(unaudited)
 
Revenue     2,14     $ 112,224     $ 58,585     $ 210,081     $ 135,704  
Time charter and voyage expenses             (3,450)     (4,196)       (9,532)     (8,963)  
Direct vessel expenses             (3,465)     (2,323)       (6,605)     (4,678)  
Vessel operating expenses (management fees entirely through related party transactions)     13       (29,836)     (26,481)       (59,673)     (54,387)  
General and administrative expenses     13       (6,293)     (6,808)       (10,247)     (11,945)  
Depreciation and amortization     5,6       (16,643)     (17,320)       (33,249)     (35,041)  
Gain on sale of vessels     5             2,594             3,245  
Interest income     8,13       4       2,296       7       4,456  
Interest expense and finance cost     11       (21,680)     (23,696)       (43,523)     (46,625)  
Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies     8             889       (13,900)     1,734  
Other income             156                      1,333  
Other expense                   (90)       (1,473)     (522)  
           
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss)           $ 31,017     $ (16,550)     $ 31,886     $ (15,689)  
           
 
 
   
 
 
   
 
 
   
 
 
 
Dividend declared on restricted shares             (47)     (65)       (94)     (131)  
Undistributed loss attributable to Series C participating preferred shares                                        (13)  
           
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) attributable to common stockholders, basic     17     $ 30,970     $ (16,615)     $ 31,792     $ (15,833)  
           
 
 
   
 
 
   
 
 
   
 
 
 
Undistributed loss attributable to Series C participating preferred shares                                        13    
Net income/ (loss) attributable to common stockholders, diluted     17     $ 30,970     $ (16,615)     $ 31,792     $ (15,820)  
           
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) per share, basic     17     $ 1.95     $ (1.23)     $ 2.01     $ (1.18)  
Weighted average number of shares, basic             15,888,354       13,510,361       15,803,166       13,414,547  
Net income/ (loss) per share, diluted             1.93       (1.23)       1.99       (1.18)  
Weighted average number of shares, diluted             16,043,704       13,510,361       15,958,897       13,414,547  

 

 

 

See unaudited condensed notes to consolidated financial statements.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(Expressed in thousands of U.S. dollars)

 

 

                         
    Notes     For the Six Months
Ended June 30, 2020
(unaudited)
    For the Six Months
Ended June 30, 2019
(unaudited)
 
Operating Activities                        
Net income/ (loss)           $ 31,886     $ (15,689)  
Adjustments to reconcile net income/ (loss) to net cash provided by operating activities:                        
Depreciation and amortization     5,6       33,249       35,041  
Amortization and write-off of deferred finance fees and bond premium     11       3,045       2,293  
Amortization of dry dock and special survey costs             6,167       4,626  
Stock based compensation     15       246       460  
Gain on sale of vessels                   (3,245)  
Impairment loss relating to the investment in Navios Europe II             13,900        
Equity in net earnings of affiliated companies, net of dividends received                   (1,734)  
Changes in operating assets and liabilities:                        
Decrease/(increase) in prepaid expenses and other current assets             2,918       (413)  
Decrease in inventories             2,489          
Decrease in accounts receivable             3,772       8,343  
Increase in due from related parties, short-term             (2,038)     (15,804)  
Increase in other long term assets             (3,927)         
(Increase)/ decrease in due from related parties, long-term             (1,845)     2,431  
Decrease in accounts payable             (5,362)     (1,834)  
Increase in accrued expenses             860       476  
Payments for dry dock and special survey costs             (20,421)     (1,662)  
Decrease in due to related parties, short-term             (20,073)     (12,029)  
Increase in deferred revenue             5,857       285  
           
 
 
   
 
 
 
Net cash provided by operating activities           $ 50,723     $ 1,545  
           
 
 
   
 
 
 
Investing Activities                        
Loans to affiliates     13             (2,000)  
Container vessel owning companies acquisition/ vessels improvements     5       (44,623)     (5,563)  
Net cash proceeds from sale of vessel     5             33,301  
           
 
 
   
 
 
 
Net cash (used in)/ provided by investing activities           $ (44,623)   $ 25,738  
           
 
 
   
 
 
 
Financing Activities                        
Loan proceeds, net of deferred finance costs     11,8       133,054       98,201  
Loan repayments     11       (106,107)     (121,525)  
Dividend paid     9       (9,564)     (8,240)  
Acquisition of treasury stock                   (366)  
Net proceeds from equity offering             948          
           
 
 
   
 
 
 
Net cash provided by/ (used in) financing activities           $ 18,331     $ (31,930)  
           
 
 
   
 
 
 
Net increase/(decrease) in cash, cash equivalents and restricted cash             24,431       (4,647)  
Cash, cash equivalents and restricted cash, beginning of period             44,051       46,609  
           
 
 
   
 
 
 
Cash, cash equivalents and restricted cash, end of period           $ 68,482     $ 41,962  
           
 
 
   
 
 
 
Supplemental disclosures of cash flow information                        
Cash interest paid           $ 40,212     $ 44,525  
Non-cash investing activities                        
Accrued interest on loan to affiliate           $     $ 1,734  
Container vessel owning companies acquisition           $ 37,658     $  
Non-cash financing activities                        
Stock based compensation           $ 246     $ 460  
Deferred finance costs           $ 215     $ 492  
Other long term assets           $     $ 3,095  

 

See unaudited condensed notes to consolidated financial statements.

 

 

 

 

CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY

(Expressed in thousands of U.S. dollars, except share data)

 

 

 

 

 

                                           
    Preferred Stock     Common Stock                    
    Number of
Preferred
Shares
    Amount     Number of
Common
Shares
    Amount     Additional
Paid-in
Capital
    Accumulated
deficit
    Total
Stockholders’
Equity
 
Balance, December 31, 2019     0             15,873,391     $ 2     $ 521,275     $ (207,425)     $ 313,852  
Stock based compensation (see Note 15)     -         -         -         -         123       -         123  
Continuous Offering Program (see Note 15)     -         -         63,545                304                304  
Dividend paid/ declared (see Note 9)     -         -         -         -         (4,755)       -         (4,755)  
Net income     -         -         -         -         -         869       869  
Balance, March 31, 2020 (unaudited)     0       -         15,936,936     $ 2     $ 516,947     $ (206,556)     $ 310,393  
Stock based compensation (see Note 15)     -         -         -         -         123       -         123  
Continuous Offering Program (see Note 15)     -         -         152,954                  644        -         644    
Dividend paid/ declared (see Note 9)     -         -         -         -         (4,809)       -         (4,809)  
Net income     -         -         -         -         -         31,017       31,017  
Balance, June 30, 2020 (unaudited)     0       -         16,089,890     $ 2     $ 512,905     $ (175,539)     $ 337,368  
           

 

 

 

                                                         
    Preferred Stock     Common Stock                    
    Number of
Preferred
Shares
    Amount     Number of
Common
Shares
    Amount     Additional
Paid-in
Capital
    Accumulated
deficit
    Total
Stockholders’
Equity
 
Balance, December 31, 2018     1,000     $ -         13,280,927     $ 1     $ 522,335     $ (141,984)     $ 380,352  
Conversion of preferred stock to common     (1,000)       -         511,733       -         -         -         -    
Stock based compensation     -         -         -         -         229       -         229  
Acquisition of treasury stock     -         -         (64,289)       -         (366)       -         (366)  
Dividend paid/ declared     -         -         -         -         (4,121)       -         (4,121)  
Net income     -         -         -         -         -         861       861  
Balance, March 31, 2019 (unaudited)     0       $ -         13,728,371     $ 1     $ 518,077     $ (141,123)     $ 376,955  
Stock based compensation     -         -         -         -         231       -         231  
Dividend paid/ declared     -         -         -         -         (4,119)       -         (4,119)  
Net loss     -         -         -         -         -         (16,550)       (16,550)  
Balance, June 30, 2019 (unaudited)     0       $ -         13,728,371     $ 1     $ 514,189     $ (157,673)     $ 356,517  
           

See unaudited condensed notes to consolidated financial statements.

 

 

NOTE 1: DESCRIPTION OF ORGANIZATION AND BUSINESS OPERATIONS

 

 

Navios Maritime Acquisition Corporation (Navios Acquisition” or the “Company”) (NYSE: NNA) owns a large fleet of modern crude oil, refined petroleum product and chemical tankers providing world-wide marine transportation services. The Company’s strategy is to charter its vessels to international oil companies, refiners and large vessel operators under long, medium and short-term contracts. The Company is committed to providing quality transportation services and developing and maintaining long-term relationships with its customers. The operations of Navios Acquisition are managed by Navios Tankers Management Inc. (the “Manager”).

 

Navios Acquisition was incorporated in the Republic of the Marshall Islands on March 14, 2008. On July 1, 2008, Navios Acquisition completed its initial public offering (“IPO”). On May 28, 2010, Navios Acquisition consummated the vessel acquisition which constituted its initial business combination. Following such transaction, Navios Acquisition commenced its operations as an operating company.

 

On November 22, 2019, an agreement was reached to liquidate Navios Europe I. As a result of the liquidation, which was completed in December

2019 (“Liquidation of Navios Europe I”), Navios Acquisition acquired five vessel owning companies.

 

In October 2019, Navios Acquisition completed a registered direct offering of 1,875,000 shares of its common stock at $8.00 per share, raising gross proceeds of $15,000. Total net proceeds of the above transactions, net of agents’ costs of $675 and offering costs of $957, amounted to $13,368.

 

On November 29, 2019, Navios Acquisition entered into a Continuous Offering Program Sales Agreement for the issuance and sale from time to time shares of Navios Acquisition’s common stock having an aggregate offering price of up to $25,000. The sales were being made pursuant to a prospectus supplement as part of a shelf registration statement which was set to expire in December 2019. Navios Acquisition went effective on a new shelf registration statement which was declared effective on December 23, 2019. Accordingly, an updated Continuous Offering Program Sales Agreement (the “Sales Agreement”) was entered into on December 23, 2019. As before, the updated Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Acquisition and indemnification obligations of the parties thereto as well as certain termination rights for such parties. As of June 30, 2020, since the program commencement Navios Acquisition has issued 486,519 shares of common stock having received net proceeds of $3,047.

 

On April 21, 2020, an agreement was reached to liquidate Navios Europe II. As a result of the liquidation, which was completed in June 2020 (“Liquidation of Navios Europe II”), Navios Acquisition acquired seven vessel owning companies. The vessels are containerships and meet the criteria to be accounted for as held for sale.

 

As of June 30, 2020, Navios Maritime Holdings Inc. (“Navios Holdings”) had 30.2% of the voting power and 30.5% of the economic interest in Navios Acquisition.

 

As of June 30, 2020, Navios Acquisition had: 16,089,890 shares of common stock outstanding.

 

 

NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

 

(a) Basis of presentation:

The accompanying interim condensed consolidated financial statements are unaudited, but, in the opinion of management, reflect all adjustments for a fair statement of Navios Acquisition’s unaudited condensed consolidated balance sheets, statement of changes in equity, statements of operations and cash flows for the periods presented. The results of operations for the interim periods are not necessarily indicative of results for the full year. The footnotes are condensed as permitted by the requirements for interim financial statements and accordingly, do not include information and disclosures required under accounting principles generally accepted in the United States of America (“U.S. GAAP”) for complete financial statements. All such adjustments are deemed to be of a normal recurring nature. These interim financial statements should be read in conjunction with the Company’s consolidated financial statements and notes included in Navios Acquisition’s 2019 Annual Report filed on Form 20-F with the Securities and Exchange Commission (“SEC”).

 

 

 

(ab) Recent accounting pronouncements

 

In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting”, which provides guidance to alleviate the burden in accounting for reference rate reform by allowing certain expedients and exceptions in applying generally accepted accounting principles to contract modifications, hedging relationships, and other transactions impacted by reference rate reform. The provisions of ASU 2020-04 apply only to those transactions that reference LIBOR or another reference rate expected to be discontinued due to reference rate reform. Adoption of the provisions of ASU 2020-04 is optional and is effective from March 12, 2020 through December 31, 2022. The company is currently evaluating the impact of ASU 2020-04 on our condensed consolidated financial statements.

 

In August 2018, FASB issued ASU 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement”. This update modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for fiscal years beginning after December 15, 2019, and earlier adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In October 2018, FASB issued ASU 2018-17, Consolidation (Topic 810): “Targeted Improvements to Related Party Guidance for Variable Interest Entities” (“ASU 2018-17”). ASU 2018-17 provides that indirect interests held through related parties in common control arrangements should be considered on a proportional basis for determining whether fees paid to decision makers and service providers are variable interests. This is

consistent with how indirect interests held through related parties under common control are considered for determining whether a reporting entity must consolidate a Variable Interest Entity (“VIE). For Public business entities the amendments are effective for fiscal years beginning after December 15,

2019, and interim periods within those fiscal years. Early adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In January 2017, the FASB issued ASU No. 2017-04, Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill

Impairment. The ASU is effective for periods beginning after December 15, 2019, with an election to adopt early. The ASU requires only

a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value. It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The adoption of this new accounting guidance did not have a material effect on the Companys consolidated financial statements.

 

In June 2016, FASB issued ASU 2016-13, “Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments.” This standard requires entities to measure all expected credit losses of financial assets held at a reporting date based on historical experience, current conditions, and reasonable and supportable forecasts in order to record credit losses in a more timely matter. ASU 2016-13 also amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The standard is effective for interim and annual reporting periods beginning after December 15, 2019, although early adoption is permitted for interim and annual periods beginning after December 15, 2018. In November 2018, FASB issued ASU 2018-19 “Codification Improvements to topic 326, Financial Instruments-Credit Losses”. The amendments in this update clarify that operating lease receivables are not within the scope of ASC 326-20 and should instead be accounted for under the new leasing standard, ASC 842. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

(b) Principles of consolidation:

The accompanying consolidated financial statements include the accounts of Navios Acquisition, a Marshall Islands corporation, and its majority owned subsidiaries. All significant intercompany balances and transactions have been eliminated in the consolidated statements.

 

The Company also consolidates entities that are determined to be variable interest entities (“VIEs”) as defined in the accounting guidance, if it determines that it is the primary beneficiary. A variable interest entity is defined as a legal entity where either (a) equity interest holders as a group lack the characteristics of a controlling financial interest, including decision making ability and an interest in the entity’s residual risks and rewards, or (b) the equity holders have not provided sufficient equity investment to permit the entity to finance its activities without additional subordinated financial support, or (c) the voting rights of some investors are not proportional to their obligations to absorb the expected losses of the entity, their rights to receive the expected residual returns of the entity, or both and substantially all of the entity’s activities either involve or are conducted on behalf of an investor that has disproportionately few voting rights.

 

Based on internal forecasts and projections that take into account reasonably possible changes in Company’s trading performance, management believes that the Company has adequate financial resources to continue in operation and meet its financial commitments, including but not limited to capital expenditures and debt service obligations, for a period of at least twelve months from the date of issuance of these consolidated financial statements. Accordingly, the Company continues to adopt the going concern basis in preparing its financial statements.

 

(c) Equity method investments:

Affiliates are entities over which the Company generally has between 20% and 50% of the voting rights, or over which the Company has significant influence, but it does not exercise control. Investments in these entities are accounted for under the equity method of accounting. Under this method, the Company records an investment in the stock of an affiliate at cost, and adjusts the carrying amount for its share of the earnings or losses of the affiliate subsequent to the date of investment and reports the recognized earnings or losses in income. Dividends received from an affiliate reduce the carrying amount of the investment. The Company recognizes gains and losses in earnings for the issuance of shares by its affiliates, provided that the issuance of such shares qualifies as a sale of such shares. When the Company’s share of losses in an affiliate equals or exceeds its interest in the affiliate, the Company does not recognize further losses, unless the Company has incurred obligations or made payments on behalf of the affiliate.

 

Navios Acquisition evaluates its equity method investments, for other than temporary impairment, on a quarterly basis. Consideration is given to (1) the length of time and the extent to which the fair value has been less than the carrying value, (2) the financial condition and near-term prospects and (3) the intent and ability of the Company to retain its investments for a period of time sufficient to allow for any anticipated recovery in fair value.

 

(d) Subsidiaries:

Subsidiaries are those entities in which the Company has an interest of more than one half of the voting rights and/or otherwise has power to govern the financial and operating policies. The acquisition method of accounting is used to account for the acquisition of subsidiaries if deemed to be a business combination. The cost of an acquisition is measured as the fair value of the assets given up, shares issued or liabilities undertaken at the date of acquisition. The excess of the cost of acquisition over the fair value of the net assets acquired and liabilities assumed is recorded as goodwill.

 

 

As of June 30, 2020, the entities included in these consolidated financial statements were: 

                   

Navios Maritime Acquisition

Corporation and Subsidiaries:

  Nature  

Country of

Incorporation

  2020   2019  
Company Name                  
Aegean Sea Maritime Holdings Inc.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amorgos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Andros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antikithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antiparos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amindra Navigation Co.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Crete Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Folegandros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ikaria Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ios Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Kithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Mytilene Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Acquisition Corporation   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Finance (U.S.) Inc.   Co-Issuer   Delaware   1/1 – 6/30   1/1 – 6/30  
Rhodes Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Serifos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Loyalty Limited   Former Vessel-Owning Company(1)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Navigator Limited   Former Vessel-Owning Company(2)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sifnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skiathos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skopelos Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Syros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thera Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Oinousses Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Psara Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipsara Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samothrace Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thasos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Limnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skyros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alonnisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Makronisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Iraklia Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Paxos Shipping Corporation   Former Vessel-Owning Company(5)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipaxos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Donoussa Shipping Corporation   Former Vessel-Owning Company(6)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Schinousa Shipping Corporation   Former Vessel-Owning Company(7)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Europe Finance Inc   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kerkyra Shipping Corporation   Vessel-Owning Company(3)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Lefkada Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Zakynthos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Leros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kimolos Shipping Corporation   Former Vessel-Owning Company(13)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tilos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Delos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Agistri Shipping Corporation   Operating Subsidiary   Malta   1/1 – 6/30   1/1 – 6/30  
Olivia Enterprises Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Cyrus Investments Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Doxa International Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tzia Shipping Corp.   Vessel-Owning Company(10)   Marshall Is.   6/4 – 6/30    –   
Navios Maritime Midstream Partners GP LLC   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Operating LLC   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners L.P.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners Finance (US) Inc.   Co-borrower   Delaware   1/1 – 6/30   1/1 – 6/30  
Shinyo Kannika Limited   Former Vessel-Owning Company   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Ocean Limited   Former Vessel-Owning Company(11)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Saowalak Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Kieran Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Dream Limited   Former Vessel-Owning Company(12)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sikinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alkmene Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Persephone Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Rhea Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Aphrodite Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Dione Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Bole Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Boysenberry Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Brandeis Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Buff Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cadmium Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Celadon Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cerulean Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
                   

  

(1) Former vessel-owner of the Shinyo Splendor which was sold to an unaffiliated third party on May 6, 2014.

(2)       Former vessel-owner of the Shinyo Navigator which was sold to an unaffiliated third party on December 6, 2013.

(3)       Navios Midstream acquired all of the outstanding shares of capital stock of the vessel-owning subsidiary on March 29, 2018.

(4) Each company had the rights over a shipbuilding contract of an MR2 product tanker vessel. In February 2015, these shipbuilding contracts were terminated, with no exposure to Navios Acquisition, due to the shipyard’s inability to issue a refund guarantee.

(5) Former vessel-owner of the Nave Lucida which was sold to an unaffiliated third party on January 27, 2016.

(6) Former vessel-owner of the Nave Universe which was sold to an unaffiliated third party on October 4, 2016.

(7) Former vessel-owner of the Nave Constellation which was sold to an unaffiliated third party on November 15, 2016.

(8) Currently, vessel-operating company under a sale and leaseback transaction.

(9)  The vessel Shinyo Kannika was sold to an unaffiliated third party on March 22, 2018.

(10) Bareboat chartered-in vessels with purchase option, expected to be delivered in each of the fourth quarter of 2020, the first and the third quarters of 2021 and the second quarter of 2022.

(11) In March 2019, the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt was involved in a collision incident. The Company maintains insurance coverage for such types of events (subject to applicable deductibles and other customary limitations). In May 10, 2019, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

(12) On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750.

(13) On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

(14) In December 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers following the Liquidation of Navios Europe I.

(15) In June 2020, Navios Acquisition acquired seven vessel owning companies following the Liquidation of Navios Europe II.

 

 

 

 

 

 

(g) Assets / Liabilities associated with Assets Held for Sale

It is the Company’s policy to dispose of vessels and other fixed assets when suitable opportunities occur and not necessarily to keep them until the end of their useful life. The Company classifies assets and disposal groups as “being held for sale” when the following criteria are met: management has committed to a plan to sell the asset (disposal group); the asset (disposal group) is available for immediate sale in its present condition; an active program to locate a buyer and other actions required to complete the plan to sell the asset (disposal group) have been initiated; the sale of the asset (disposal group) is probable and transfer of the asset (disposal group) is expected to qualify for recognition as a completed sale within one year; the asset (disposal group) is being actively marketed for sale at a price that is reasonable in relation to its current fair value and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long-lived assets or disposal groups classified as held for sale are measured at the lower of their carrying amount or fair value less cost to sell. These assets are not depreciated once they meet the criteria to be held for sale.

 

(f) Revenue and Expense Recognition:

 

Revenue Recognition:

On January 1, 2018, the Company adopted the provisions of ASC 606, Revenue from Contracts with Customers (ASC

606). The guidance provides a unified model to determine how revenue is recognized. In doing so, the Company makes judgments including identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price, and allocating the transaction price to each performance obligation. Revenues are recognized to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. In determining the appropriate amount of revenue to be recognized as it fulfills its obligations under its agreements, the Company performs the following steps: (i) identification of the promised goods or services in the contract; (ii) determination of whether the promised goods or services are performance obligations, including whether they are distinct in the context of the contract; (iii) measurement of the transaction price, including the constraint on variable consideration; (iv) allocation of the transaction price to the performance obligations based on estimated selling prices; and (v) recognition of revenue when (or as) the Company satisfies each performance obligation.

 

In February 2016, the FASB issued ASU 2016-02, “Leases (Topic 842)” (“ASU 2016-02”). ASU 2016-02 will apply to both types of leases – capital (or finance) leases and operating leases. According to the new Accounting Standard, (a) lessees will be required to recognize assets and liabilities on the balance sheet for the rights and obligations created by all leases with terms of more than 12 months and (b) previous accounting standards for lessors will be updated to align certain requirements with the updates to lessee accounting standards and the revenue recognition accounting standards. ASU 2016 – 02 is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. Early application is permitted. In July 2018, the FASB issued ASU 2018-10, Codification Improvements to Topic 842 Leases (“ASU 2018-10”). The amendments in ASU 2018-10 affect narrow aspects of the guidance issued in the amendments in ASU 2016-02. For entities that early adopted Topic 842, the amendments are effective upon issuance of this Update, and the transition requirements are the same as those in Topic 842. For entities that have not adopted Topic 842, the effective date and transition requirements will be the same as the effective date and transition requirements in Topic 842. In addition in July 2018, the FASB issued ASU 2018-11, Targeted Improvements to Topic 842 Leases (“ASU 2018-11). The improvements in ASU 2018-11 provide for (a) an optional new transition method for adoption that results in initial recognition of a cumulative effect adjustment to retained earnings in the year of adoption and (b) a practical expedient for lessors, under certain circumstances, to combine the lease and non-lease components of revenues for presentation purposes.

 

 

The Company has elected to early adopt the requirements of ASU 2016-02 effective January 1, 2018, using the modified retrospective method which is consistent, with the approach the Company has elected under the new revenue standard, and elected to apply the additional optional transition method along with the following practical expedients: (i) a package of practical expedients which does not require the Company to reassess: (1) whether any expired or existing contracts are or contain leases; (2) lease classification for any expired or existing leases; and (3) whether initial direct costs for any expired or existing leases would qualify for capitalization under ASC 842; (ii) to account for non-lease components (primarily crew and maintenance services) of time charters as a single lease component as the timing and pattern of transfer of the non-lease components and associated lease component are the same, the lease components, if accounted for separately, would be classified as an operating lease, and such non-lease components are not predominant components of the combined component. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of adoption, there was no cumulative impact to the Company’s retained earnings at January 1, 2018.

 

The Company’s contract revenues from time chartering and pooling arrangements are governed by ASU 2016-02 “Leases”, which the Company early adopted on January 1, 2018. Upon adoption of ASC 606 and ASC 842, the timing and recognition of earnings from the pool arrangements and time charter contracts to which the Company is party did not change from previous practice. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of the adoption of these standards, there was no effect on the Company’s opening retained earnings, consolidated balance sheets and consolidated statements of income.

 

In December 2018, FASB issued ASU 2018-20, Leases (Topic 842), “Narrow-Scope Improvements for Lessors”: to clarify guidance for lessors on sales taxes and other similar taxes collected from lessees, certain lessor costs and recognition of variable payments for contracts with lease and non-lease components. The Company has early adopted the standard effective January 1, 2018 and is using that date as the date of initial application. The adoption of this guidance had no impact on the Company’s disclosures to the consolidated financial statements.

 

 

Revenue from time chartering

 

Revenues from time chartering of vessels are accounted for as operating leases and are thus recognized on a straight-line basis as the average revenue over the rental periods of such charter agreements, as service is performed. A time charter involves placing a vessel at the charterers’ disposal for a period of time during which the charterer uses the vessel in return for the payment of a specified daily hire rate. Under time charters, operating costs such as for crews, maintenance and insurance are typically paid by the owner of the vessel. Revenues from time chartering of vessels amounted to $74,824 and $41,143 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues from time chartering of vessels amounted to $129,166 and $88,735, respectively. The majority of revenue from time chartering is usually collected in advance.

 

 

Pooling arrangements

 

For vessels operating in pooling arrangements, the Company earns a portion of total revenues generated by the pool, net of expenses incurred by the pool. The amount allocated to each pool participant vessel, including the Company’s vessels, is determined in accordance with an agreed-upon formula, which are determined by the margins awarded to each vessel in the pool based on the vessel’s age, design and other performance characteristics. Revenue under pooling arrangements is accounted for as variable rate operating leases on the accrual basis and is recognized in the period in which the variability is resolved. The Company recognizes net pool revenue on a monthly and quarterly basis, when the vessel has participated in a pool during the period and the amount of pool revenue can be estimated reliably based on the pool report. The allocation of such net revenue may be subject to future adjustments by the pool however, such changes are not expected to be material. Revenue for vessels operating in pooling arrangements amounted to $16,682 and $13,430 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenue operating in pooling arrangements amounted to $39,358 and $32,596, respectively. The majority of revenue from pooling arrangements is usually collected through the month they are incurred.

 

 

Revenue from voyage contracts

 

The Company’s revenues earned under voyage contracts (revenues for the transportation of cargo) were previously recognized ratably over the estimated relative transit time of each voyage. A voyage was deemed to commence when a vessel was available for loading and was deemed to end upon the completion of the discharge of the current cargo. Under a voyage charter, a vessel is provided for the transportation of specific goods between specific ports in return for payment of an agreed upon freight per ton of cargo. Upon adoption of ASC 606, the Company recognizes revenue ratably from port of loading to when the charterer’s cargo is discharged as well as defer costs that meet the definition of “costs to fulfill a contract” and relate directly to the contract. Revenues earned under voyage contracts amounted to $0 and $3,639 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues under voyage contracts amounted to $9,713 and $9,678, respectively. Capitalized costs as of June 30, 2020 and December 31, 2019 related to costs to fulfill the contract amounted to $0 and $103, respectively, and are included under caption “Prepaid expenses and other current assets”. Accounts receivable, net, as of June 30, 2020 that related to voyage contracts was $1,910 (December 31, 2019: $12,219). The majority of revenue from voyage contracts is usually collected after the discharging takes place.

 

 

Revenue from profit sharing

 

Profit-sharing revenues are calculated at an agreed percentage of the excess of the charterer’s average daily income (calculated on a quarterly or half-yearly basis) over an agreed amount and accounted for on an accrual basis based on provisional amounts and for those contracts that provisional accruals cannot be made due to the nature of the profit share elements, these are accounted for on the actual cash settlement. Profit sharing for the three month periods ended June 30, 2020 and 2019 amounted to $20,718 and $373, respectively. For the six month periods ended June 30, 2020 and 2019, profit sharing revenues amounted to $31,844 and $4,695, respectively.

 

Revenues are recorded net of address commissions. Address commissions represent a discount provided directly to the charterers based on a fixed percentage of the agreed upon charter or freight rate. Since address commissions represent a discount (sales incentive) on services rendered by the Company and no identifiable benefit is received in exchange for the consideration provided to the charterer, these commissions are presented as a reduction of revenue.

 

 

Options to extend or terminate a lease

 

The Company’s vessels have the following options to extent or renew their charters:

     

Vessel

  Option
Hector N   Charterer’s option to extend the charter for one year at $15,800 net per day.
Nave Sextans   Charterer’s option to extend the charter for one year at $18,750 net per day.
Nave Pulsar   Charterer’s option to extend the charter for one year at $16,590 net per day plus ice-transit premium.

Nave Rigel

  Charterer has the option to charter the vessel for an optional year at a rate of $17,063 net per day.
Nave Cetus   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Equinox   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Aquila   Charterer's option to extend the charter for one year at $16,886 net per day
Nave Titan   Charterer's option to extend the charter for 30-90 days at $12,838 net per day with the last 30 days at $15,306 net per day
TBN 1   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.
TBN 2   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.

 

 

 

 

 

NOTE 3: CASH AND CASH EQUIVALENTS AND RESTRICTED CASH

 

 

 

Cash and cash equivalents consisted of the following:

 

 

 

                 
    June 30, 2020     December 31, 2019  
Cash on hand and at banks   $ 67,718     $ 43,561  
Restricted cash     764       490  
Total cash, cash equivalents and restricted cash   $ 68,482     $ 44,051  

 

 

 

Cash deposits and cash equivalents in excess of amounts covered by government-provided insurance are exposed to loss in the event of non-performance by financial institutions. The Company does maintain cash deposits and equivalents in excess of government-provided insurance limits. The Company also minimizes exposure to credit risk by dealing with a diversified group of major financial institutions.

 

Restricted cash includes amounts held in retention accounts in order to service debt and interest payments, as required by certain of Navios Acquisition’s credit facilities.

 

 

NOTE 4: INVENTORIES, PREPAID EXPENSES AND OTHER CURRENT ASSETS

 

Inventories, prepaid expenses and other current assets consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Inventories   $ 5,440     $ 6,208  
Advances for working capital purposes     5,350       7,250  
Insurance claims     3,384       4,785  
Voyage charters deferred contract costs and other     969       791  
   
 
 
   
 
 
 
Total inventories, prepaid expenses and other current assets   $ 15,143     $ 19,034  
   
 
 
   
 
 
 

 

 

NOTE 5: VESSELS, NET

 

Vessels, Net 

  

                         

Vessels

  Cost     Accumulated
Depreciation
    Net Book
Value
 
Balance at December 31, 2018   $ 1,687,274     $ (303,669)     $ 1,383,605  
Additions/ (Depreciation)     102,637       (63,935)       38,702  
Disposals     (77,922)       11,153       (66,769)  
Impairment loss     (7,287)                (7,287)  
Balance at December 31, 2019   $ 1,704,702       (356,451)       1,348,251  
Additions/ (Depreciation)     3,654       (33,249)     (29,595)
Balance at June 30, 2020   $ 1,708,356     $ (389,700)     1,318,656  

 

Additions of vessels

 

2020

 

As of June 30, 2020, certain extraordinary fees and costs related to vessels’ regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation, amounted to $3,654 (see Note 13 — Transactions with related parties).

 

 

2019

 

As of December 31, 2019, certain extraordinary fees and costs related to vessels’ regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation, amounted to $18,207 (see Note 13 — Transactions with related parties).

 

During the quarter ended December 31, 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers for an acquisition cost of approximately $84,430 in total, following the Liquidation of Navios Europe I, through bank financing of $32,500 and $33,210 receivables (Please refer to Note 8 – Investments in Affiliates).

 

For each of the vessels purchased from Navios Europe I, the acquisition of all vessels was effected through the acquisition of all of the capital stock of the respective vessel-owning companies, which held the ownership and other contractual rights and obligations related to each of the acquired vessels, including the respective charter-out contracts. Management accounted for each acquisition as an asset acquisition under ASC 805. At the transaction date, the purchase price approximated the fair value of the assets acquired, which was determined based on a combination of methodologies including discounted cash flow analyses and independent valuation analyses.

 

 

Disposals of vessels

 

2019

 

On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750. The gain on sale of the vessel amounted to $651, which is included in “Gain on sale of vessels.

 

On May 10, 2019, following a collision incident, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

 

On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

 

 

Impairment loss

 

2019

 

During the year ended December 31, 2019 and as a result of the impairment review performed, it was determined that the carrying amount of one tanker was not recoverable and, therefore, an impairment loss of $7,287 was recognized.

 

 

NOTE 6: INTANGIBLE ASSETS OTHER THAN GOODWILL

 

 

On December 13, 2018, Navios Acquisition acquired, as part of the Merger, at fair value, the intangible assets of Navios Midstream, consisting of favorable lease terms.

 

Intangible assets as of June 30, 2020 and December 31, 2019 were $0.

 

On September 25, 2019, the U.S. Department of Treasury’s Office of Foreign Assets Control added, amongst others, COSCO Shipping Tanker (Dalian) Co., Ltd. (COSCO Dalian”) to the Specially Designated Nationals and Blocked Persons list after being determined by the State Department to meet the criteria for the imposition of sanctions under Executive Order 13846. The Company had two VLCCs chartered to COSCO Dalian, the Nave Constellation (ex. Shinyo Saowalak) and the Nave Universe (ex. Shinyo Kieran), through June 18, 2025 and June 8, 2026, respectively, each at a net rate of $48,153 per day, with profit sharing above $54,388. Subsequent to September 30, 2019 both charter contracts have been terminated and the two vessels are now employed in the open market.

 

COSCO Dalian was removed from the Specially Designated Nationals and Blocked Persons list on January 31, 2020.

 

Amortization expense of favorable lease terms for the three and six month periods ended June 30, 2020 and 2019 is presented in the following table:

 

                                 
    Three Month Period Ended     Six Month Period Ended  
    June 30,
2020
    June 30,
2019
    June 30,
2020
    June 30,
2019
 
Favorable lease terms charter-out   $        $ (1,319   $        $ (2,639
Total   $        $ (1,319   $        $ (2,639

 

 

 

NOTE 7: ASSETS/ LIABILITIES ASSOCIATED WITH ASSETS HELD FOR SALE

 

 

Following the Liquidation of Navios Europe II (Note 8) on June 29, 2020, Navios Acquisition acquired seven vessel owning companies. For each of the vessels purchased from Navios Europe II, the acquisition of all vessels was effected through the acquisition of all of the capital stock of the respective vessel-owning companies, which held the ownership and other contractual rights and obligations related to each of the acquired vessels, including the respective charter-out contracts. Management accounted for each acquisition as an asset acquisition under ASC 805. At the transaction date, the purchase price approximated the fair value of the assets acquired, which was determined based on a combination of methodologies including discounted cash flow analyses and independent valuation analyses.

 

 

Upon acquisition of the vessel owning companies, the Company assessed that all the held for sale criteria were met for their assets, mainly consisting of the vessels owned and reviewed the carrying amount in connection with their fair market value less any costs to sell. The review indicated that such carrying amounts were not in excess of the fair value less any costs to sell. Therefore, no loss was recorded in the accompanying condensed consolidated statement of income. Furthermore, liabilities associated with the assets held for sale are separately presented under Liabilities associated with assets held for sale in the accompanying condensed consolidated balance sheet. The major class of assets held for sale consist of the carrying value of the vessels amounting to $79,080. The major class of liabilities associated with assets held for sale, consist of their respective debt with a carrying amount of $41,700. Please refer to Note 11 “Borrowings”.

 

 

 

NOTE 8: INVESTMENT IN AFFILIATES

 

 

Navios Europe I

 

On October 9, 2013, Navios Holdings, Navios Acquisition and Navios Maritime Partners L.P. (“Navios Partners”) established Navios Europe I and had economic interests of 47.5%, 47.5% and 5.0%, respectively. On December 18, 2013, Navios Europe I acquired ten vessels for aggregate consideration consisting of (i) cash which was funded with the proceeds of senior loan facility (the “Senior Loan I”) and loans aggregating $10,000 from Navios Holdings, Navios Acquisition and Navios Partners (collectively, the “Navios Term Loans I) and (ii) the assumption of a junior participating

loan facility (the “Junior Loan I”). In addition to the Navios Term Loans I, Navios Holdings, Navios Acquisition and Navios Partners agreed to make available to Navios Europe I revolving loans up to $24,100 to fund working capital requirements (collectively, the “Navios Revolving Loans I”). In December 2018, the availability under the Revolving Loans I was increased by $30,000. Effective November 2014 and through the Liquidation completed in December 2019, Navios Holdings, Navios Acquisition and Navios Partners had a voting interest of 50%, 50% and 0%, respectively.

 

On an ongoing basis, Navios Europe I was required to distribute cash flows (after payment of operating expenses, amounts due pursuant to the terms of the Senior Loan I and repayments of the Navios Revolving Loans I) according to a defined waterfall calculation.

 

Following the Liquidation of Navios Europe I, Navios Acquisition acquired five vessel owning companies for an acquisition cost of approximately $84,627 in total.

 

As of June 30, 2020 and December 31, 2019 and subsequent to the Liquidation of Navios Europe I, the Company had no exposure.

 

For the three month period ended June 30, 2019 income recognized in “Equity in net earnings of affiliated companies” was $297. For the six month period ended June 30, 2019 income recognized in “Equity in net earnings of affiliated companies” was $583.

 

 

 

Navios Europe II

 

On February 18, 2015, Navios Holdings, Navios Acquisition and Navios Partners established Navios Europe II Inc. and had in such entity economic interests of 47.5%, 47.5% and 5.0%, respectively, and voting interests of 50.0%, 50.0% and 0%, respectively. From June 8, 2015 through December 31, 2015, Navios Europe II acquired fourteen vessels for: (i) cash consideration of $145,550 (which was funded with the proceeds of $131,550 of senior loan facilities (the “Senior Loans II”) and loans aggregating $14,000 from Navios Holdings, Navios Acquisition and Navios Partners (collectively, the “Navios Term Loans II); and (ii) the assumption of a junior participating loan facility (the “Junior Loan II”) with a face amount of $182,150 and fair value of $99,147. In addition to the Navios Term Loans II, Navios Holdings, Navios Acquisition and Navios Partners agreed to make available to Navios Europe II revolving loans up to $57,500 to fund working capital requirements (collectively, the “Navios Revolving Loans II”). On April 21, 2020, Navios Europe II agreed with the lender to fully release the liabilities under the junior participating loan facility for $5,000.

 

On an ongoing basis, Navios Europe II was required to distribute cash flows (after payment of operating expenses, amounts due pursuant to the terms of the Senior Loans and repayments of the Navios Revolving Loans II) according to a defined waterfall calculation.

 

As of June 30, 2020 and subsequent to the Liquidation of Navios Europe II, the Company had no exposure. As of December 31, 2019, the estimated maximum potential loss by Navios Acquisition in Navios Europe II was $51,558, which represented the Company’s carrying value of the investment of $6,650, the Company’s balance of the Navios Revolving Loans II including accrued interest on the Navios Term Loans II of $28,220, which was included under “Due from related parties, long-term”, and the accrued interest income on the Navios Revolving Loans II in the amount of $16,688, which is included under “Due from related parties, short-term”. Refer to Note 13 for the terms of the Navios Revolving Loans II.

 

The decline in the fair value of the investment was considered as other-than-temporary and, therefore, an aggregate loss of $13,900 was recognized and included in the accompanying condensed consolidated statements of income for the three month period ended March 31, 2020, and the six month period ended June 30, 2020, as "Impairment of receivable in affiliated company/ Equity in net earnings of affiliated companies." The fair value of the Company's investment was determined based on the liquidation value of Navios Europe II, determined on the individual fair values assigned to the assets and liabilities of Navios Europe II.

 

For the three month periods ended June 30, 2020 and 2019 income recognized in “Equity in net earnings of affiliated companies” was $0 and $592, respectively. For the six month periods ended June 30, 2020 and 2019 income/ loss recognized in “Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies” was $13,900 and $1,151, respectively.

 

 

NOTE 9: DIVIDENDS PAYABLE

 

 

On January 22, 2020, the Board of Directors declared a quarterly cash dividend in respect of the fourth quarter of 2019 of $0.30 per share of common stock which was paid on April 7, 2020 to stockholders of record as of March 5, 2020.

 

On April 29, 2020, the Board of Directors declared a quarterly cash dividend in respect of the first quarter of 2020 of $0.30 per share of common stock which was paid on July 9, 2020 to stockholders of record as of June 3, 2020

 

The declaration and payment of any further dividends remain subject to the discretion of the Board of Directors and will depend on, among other things, Navios Acquisitions cash requirements as measured by market opportunities and restrictions under its credit agreements and other debt obligations and such other factors as the Board of Directors may deem advisable.

 

 

NOTE 10: ACCRUED EXPENSES

 

 

Accrued expenses as of June 30, 2020 and December 31, 2019 consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Accrued voyage expenses   $ 2,052     $ 2,643  
Accrued loan interest     8,286       10,468  
Accrued legal and professional fees     3,740       1,226  
Total accrued expenses   $ 14,078     $ 14,337  

 

 

NOTE 11: BORROWINGS

 

 

 

                 
    June 30,
2020
    December 31,
2019
 
Eurobank Ergasias S.A. $52,000           28,758  
DVB Bank S.E. and Credit Agricole Corporate and Investment Bank     37,891       39,453  
Ship Mortgage Notes $670,000     658,000       658,000  
Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB     19,065       39,173  
BNP Paribas $44,000     26,000       28,000  
HSH $24,000     17,135       18,280  
HCOB $31,800     30,108       31,800  
Deutsche Bank AG Filiale Deutschlandgeschäft           32,500  
Eurobank S.A. $20,800     20,800           
Total credit facilities     808,999       875,964  
Sale and Leaseback Agreements–$71,500     58,094       62,563  
Sale and Leaseback Agreements–$103,155     93,189       97,723  
Sale and Leaseback Agreements–$15,000     13,281       14,219  
Sale and Leaseback Agreements–$47,220     43,133       45,858  
Sale and Leaseback Agreements–$90,811     85,158       90,811  
Sale and Leaseback Agreements–$72,053     72,053           
Total borrowings     1,173,907       1,187,138  
Less: Deferred finance costs, net     (13,318)     (14,638)  
Add: bond premium     445       617  
Less: current portion of credit facilities, net of deferred finance costs     (61,261)     (141,214)  
Less: current portion of Sale and Leaseback Agreements, net of deferred finance costs     (38,695)     (31,739)  
Total long-term borrowings, net of current portion, bond premium and deferred finance costs   $ 1,061,078     $ 1,000,164  

 

 

 

 

Long-Term Debt Obligations and Credit Arrangements

 

Ship Mortgage Notes:

 

8 1/8% First Priority Ship Mortgages: On November 13, 2013, the Company and its wholly owned subsidiary, Navios Acquisition Finance (US) Inc. (“Navios Acquisition Finance” and together with the Company, the “2021 Co-Issuers”) issued $610,000 in first priority ship mortgage notes (the “Existing Notes”) due on November 15, 2021 at a fixed rate of 8.125%.

 

On March 31, 2014, the Company completed a sale of $60,000 of its first priority ship mortgage notes due in 2021 (the “Additional Notes,” and together with the Existing Notes, the “2021 Notes”). The terms of the Additional Notes are identical to the Existing Notes and were issued at 103.25% plus accrued interest from November 13, 2013.

 

The 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of Navios Acquisitions subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries.

 

The 2021 Co-Issuers currently have the option to redeem the 2021 Notes in whole or in part, at a fixed price of 106.094% of the principal amount, which price declines ratably until it reaches par in 2019, plus accrued and unpaid interest, if any.

 

In addition, upon the occurrence of certain change of control events, the holders of the 2021 Notes will have the right to require

the 2021 Co-Issuers to repurchase some or all of the 2021 Notes at 101% of their face amount, plus accrued and unpaid interest to the repurchase date.

 

The 2021 Notes contain covenants which, among other things, limit the incurrence of additional indebtedness, issuance of certain preferred stock, the payment of dividends, redemption or repurchase of capital stock or making restricted payments and investments, creation of certain liens, transfer or sale of assets, entering in transactions with affiliates, merging or consolidating or selling all or substantially all of the 2021 Co-Issuers’ properties and assets and creation or designation of restricted subsidiaries.

 

Following the acquisition of the Star N and the Hector N MR1 product tankers from Navios Europe I, the vessels were offered as collateral under its ship mortgage notes, in substitution of an amount of $25,405 that was held as cash collateral from the sale proceeds of the Nave Electron.

 

In the fourth quarter of 2019, Navios Acquisition repurchased $12,000 of its ship mortgage notes for a cash consideration of $9,950 resulting in a gain on bond repurchase of $1,940 net of deferred fees written-off.

 

The 2021 Co-Issuers were in compliance with the covenants as of June 30, 2020.

 

The Existing Notes and the Additional Notes are treated as a single class for all purposes under the indenture including, without limitation, waivers, amendments, redemptions and other offers to purchase and the Additional Notes rank evenly with the Existing Notes. The Additional Notes and the Existing Notes have different CUSIP numbers.

 

Guarantees

The Company’s 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of the Company’s subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries. The Company’s 2021 Notes are unregistered. The guarantees of the Company’s subsidiaries that own mortgaged vessels are senior secured guarantees and the guarantees of Company’s subsidiaries that do not own mortgaged vessels are senior unsecured guarantees. All subsidiaries, including Navios Acquisition Finance and Navios Midstream subsidiaries are 100% owned. Navios Acquisition does not have any independent assets or operations.

 

 

Credit Facilities

 

As of June 30, 2020, the Company had secured credit facilities with various commercial banks with a total outstanding balance of $150,999.

 

On December 6, 2010, Navios Acquisition entered into a loan agreement with Eurobank Ergasias S.A. of up to $52,000 out of which $46,200 has been drawn (divided into two tranches of $23,100 each) to partially finance the acquisition costs of two LR1 product tanker vessels. Each tranche of the facility was repayable in 32 equal quarterly installments of $306 each with a final balloon payment of $13,308, to be repaid on the last repayment date. The maturity date of the loan was in the third and fourth quarter of 2020. The repayment of each tranche started three months after the delivery date of the respective vessel. It bore interest at a rate of LIBOR plus 300 bps. The loan also required compliance with certain financial covenants. The outstanding balance under the facility of amount of $27,534 was fully prepaid in June 2020. Following the prepayment, an amount of $50 was written-off in the consolidated statement of operations.

 

In November 2015, Navios Acquisition, entered into a term loan facility of up to $125,000 (divided into five tranches) with Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB for the: (i) financing of the purchase price of the Nave Spherical; and (ii) the refinancing of the existing facility with Deutsche Bank AG Filiale Deutschlandgescäft and Skandinaviska Enskilda Banken AB, dated July 18, 2014. Four of the five tranches of the facility are repayable in 20 quarterly installments of between approximately $435 and $1,896, each with a final balloon repayment to be made on the last repayment date. The fifth tranche is repayable in 16 quarterly installments of between approximately $709 and $803, each. The maturity date of the loan is in the fourth quarter of 2020. The credit facility bears interest at LIBOR plus 295 bps per annum. On March 23, 2018, Navios Acquisition prepaid $26,770, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Equinox and the Nave Pyxis, which substituted the Nave Galactic as collateral vessels under the 8 1/8% 2021 Notes. Following the prepayment, an amount of $297 was written-off in the consolidated statement of operations. On June 18, 2020, Navios Acquisition prepaid $16,272, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Sextans. Following the prepayment, an amount of $26 was written-off in the consolidated statement of operations. As of June 30, 2020, the outstanding balance under this facility was $19,065.

 

In December 2019, Navios Acquisition entered into a loan agreement with Deutsche Bank AG Filiale Deutschlandgeschäft of up to $32,500 in order to finance one MR1 and two LR1s acquired from Navios Europe I. The facility was repayable in one single repayment on the last repayment date. The facility matured in June 2020 and bore interest at LIBOR plus 400 bps per annum. In the second quarter of 2020, Navios Acquisition fully repaid the amount of $32,500.

 

In June 2020, Navios Acquisition entered into a loan agreement with Eurobank S.A. of $20,800 in order to refinance two LR1s. The facility is repayable in 16 quarterly installments of $800 each with a final balloon payment of $8,000 repayable on the last repayment date. The facility matures in June 2024 and bears interest at LIBOR plus 300 bps per annum. As of June 30, 2020, an amount of $20,800 was outstanding under this facility.

 

In June 2020, Navios Acquisition entered into a loan agreement with Hamburg Commercial Bank AG of $41,700 in order to acquire seven containerships. The facility is repayable in 4 quarterly installments with a final balloon payment of $21,700 repayable on the last repayment date. The facility matures in May 2021 and bears interest at LIBOR plus 375 bps per annum. As of June 30, 2020, an amount of $41,700 was outstanding under this facility and is presented under “Liabilities associated with assets held for sale”. (Please refer to Note 7)

 

Amounts drawn under the facilities are secured by first preferred mortgages on Navios Acquisition’s vessels and other collateral and are guaranteed by each vessel-owning subsidiary. The credit facilities contain a number of restrictive covenants that prohibit or limit Navios Acquisition from, among other things: incurring or guaranteeing indebtedness; entering into affiliate transactions; changing the flag, class, management or ownership of Navios Acquisition’s vessels; changing the commercial and technical management of Navios Acquisition’s vessels; selling Navios Acquisition’s vessels; and subordinating the obligations under each credit facility to any general and administrative costs relating to the vessels, including the fixed daily fee payable under the Management Agreement. The credit facilities also require Navios Acquisition to comply with the ISM Code and ISPS Code and to maintain valid safety management certificates and documents of compliance at all times.

 

As of June 30, 2020 no amount was available to be drawn from the Company’s facilities.

 

 

Sale and Leaseback Agreements

 

 

As of June 30, 2020, the Company had sale and leaseback agreements with various unrelated third parties with a total outstanding balance of $364,908.

 

As of June 30, 2020 and December 31, 2019, the deposits under the sale and leaseback agreements were $9,058 and $5,456, respectively, and are presented under “Other long term assets” in the condensed consolidated balance sheets.

 

In June 2020, Navios Acquisition entered into sale and leaseback agreements with unrelated third parties for $72,053 in order to refinance one MR1, one MR2 and two LR1s. Navios Acquisition has a purchase obligation to acquire the vessels at the end of the lease term and under ASC 842-40, the transaction was determined to be a failed sale. The agreements will be repaid through periods ranging from four to seven years in consecutive quarterly installments of $1,791 each, with a repurchase obligation of up to $26,963 in total. The sale and leaseback arrangements bear interest at LIBOR plus a margin ranging from 390 bps to 410 bps per annum, depending on the vessel financed. As of June 30, 2020, the outstanding balance under the agreements was $72,053.

 The maturity table below reflects the principal payments of all notes, credit facilities and the Financing arrangements outstanding as of June 30, 2020 for the next five years and thereafter are based on the repayment schedule of the respective financing arrangements (as described above) and the outstanding amount due under the 2021 Notes.

  

  

         
    June 30,
2020
 
Long-Term Debt Obligations:        
12 month period ending      
June 30, 2021   102,608    
June 30, 2022   757,620    
June 30, 2023   67,364    
June 30, 2024   92,908    
June 30, 2025   32,144    
June 30, 2026 and thereafter   121,263    
Total $ 1,173,907    

 

 

The financing arrangements include, among other things, compliance with loan to value ratios and certain financial covenants: (i) minimum liquidity at the higher of $40,000 or $1,000 per vessel; (ii) net worth ranging from $50,000 to $135,000; and (iii) total liabilities divided by total assets, adjusted for market values to be generally lower than 75% or 80% and for certain facilities, as amended for a specific period of time until December 31, 2019 to be ranging from a maximum of 80% to 85%. It is an event of default under the credit facilities if such covenants are not complied with, including the loan to value ratios for which the Company may provide sufficient additional security or prepay part of the facility, to prevent such an event.

 

As of June 30, 2020, the Company was in compliance with its covenants.

 

 

NOTE 12: FAIR VALUE OF FINANCIAL INSTRUMENTS

Fair Value of Financial Instruments

The following methods and assumptions were used to estimate the fair value of each class of financial instruments:

 

Cash and cash equivalents: The carrying amounts reported in the consolidated balance sheets for interest bearing deposits approximate their fair value because of the short maturity of these investments.

 

Restricted Cash: The carrying amounts reported in the consolidated balance sheets for interest bearing deposits approximate their fair value because of the short maturity of these investments.

 

Accounts receivable, net: Carrying amounts are considered to approximate fair value due to the short-term nature of these accounts receivables and no significant changes in interest rates. All amounts that are assumed to be uncollectible are written-off and/or reserved.

 

Accounts payable: The carrying amount of accounts payable reported in the balance sheet approximates its fair value due to the short-term nature of these accounts payable and no significant changes in interest rates.

 

 

Due from related parties, long-term: The carrying amount of due from related parties, long-term reported in the balance sheet approximates its fair value.

 

Other long-term debt, net of deferred finance costs: As a result of the adoption of ASU 2015-03, the book value has been adjusted to reflect the net presentation of deferred financing costs. The outstanding balance of the floating rate loans continues to approximate its fair value, excluding the effect of any deferred finance costs.

 

Ship Mortgage Notes and premiums: The fair value of the 2021 Notes, which has a fixed rate, was determined based on quoted market prices, as indicated in the table below.

.

 

 

    June 30, 2020     December 31, 2019  
    Book Value     Fair Value     Book Value     Fair Value  
Cash and cash equivalents   $ 67,718     $ 67,718     $ 43,561     $ 43,561  
Restricted cash   $ 764     $ 764     $ 490     $ 490  
Accounts receivable   $ 29,563     $ 29,563     $ 34,235     $ 34,235  
Accounts payable   $ 9,776     $ 9,776     $ 15,355     $ 15,355  
Ship mortgage notes and premium   $ 654,694     $ 382,186     $ 653,614     $ 527,005  
Other long-term debt, net of deferred finance costs   $ 506,340     $ 515,907     $ 519,503     $ 529,138  
Due from related parties, long-term   $ 14,658     $ 14,658     $ 42,878     $ 42,878  

 

Fair Value Measurements

 

The estimated fair value of the financial instruments that are not measured at fair value on a recurring basis, categorized based upon the fair value hierarchy, is as follows:

 

Level I: Inputs are unadjusted, quoted prices for identical assets or liabilities in active markets that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.

 

Level II: Inputs other than quoted prices included in Level I that are observable for the asset or liability through corroboration with market data at the measurement date.

 

Level III: Inputs that are unobservable. The Company did not use any Level III inputs as of June 30, 2020 and December 31, 2019.

 

 

                                 
    Fair Value Measurements at June 30, 2020 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 67,718     $ 67,718     $        $ —    
Restricted cash   $ 764     $ 764     $        $ —    
Accounts receivable   $ 29,563     $ 29,563     $        $ —    
Accounts payable   $ 9,776     $ 9,776     $        $ —    
Ship mortgage notes and premium   $ 382,186     $   382,186     $        $ —    
Other long-term debt(1)   $   515,907     $        $   515,907     $ —    
Due from related parties, long-term(2)   $ 14,658     $        $ 14,658     $ —    

 

                                 
    Fair Value Measurements at December 31, 2019 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 43,561     $ 43,561     $        $ —    
Restricted cash   $ 490     $ 490     $        $ —    
Accounts receivable   $ 34,235     $ 34,235     $        $ —    
Accounts payable   $ 15,355     $ 15,355     $        $ —    
Ship mortgage notes and premium   $ 527,005     $ 527,005     $        $ —    
Other long-term debt(1)   $ 529,138     $        $ 529,138     $ —    
Due from related parties, long-term(2)   $ 42,878     $        $ 42,878     $ —    

 

(1) The fair value of the Company’s other long-term debt is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the Company’s creditworthiness.
(2) The fair value of the Company’s long term amounts due from related parties is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the counterparty’s creditworthiness.

 

 

 

 

NOTE 13: TRANSACTIONS WITH RELATED PARTIES

 

 

 

Vessel operating expenses (management fees): Pursuant to the management agreement with the Manager (the “Management Agreement”) dated May 28, 2010 and as amended in May 2012, May 2014, May 2016 and May 2018, the Manager provided commercial and technical management services to Navios Acquisition’s vessels for a fixed daily fee of: (a) $6.5 per MR2 product tanker and chemical tanker vessel; (b) $7.15 per LR1 product tanker vessel; and (c) the current daily fee of $9.5 per VLCC, through May 2020.

 

Following the Merger with Navios Midstream, completed on December 13, 2018, the Management Agreement also covers vessels acquired in the Merger.

 

In August 2019, Navios Acquisition extended the duration of its existing Management Agreement with the Manager until January 1, 2025, to be automatically renewed for another five years. In addition management fees are fixed for two years commencing from January 1, 2020 at: (a) $6.8 per day per MR2 product tanker and chemical tanker vessel; (b) $7.23 per day per LR1 product tanker vessel; and (c) $9.7 per day per VLCC. The agreement also provides for a technical and commercial management fee of $0.05 per day per vessel and an annual increase of 3% for the remaining period unless agreed otherwise and provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Management Agreement is terminated on or before December 31, 2024.

 

Following the Liquidation of Navios Europe I in December 2019, Navios Acquisition acquired three MR1 product tankers and two LR1 product tankers. As per the Management Agreement as amended in December 2019, management fees are fixed for two years commencing from January 1, 2020 at: (a) $6.8 per day per MR1 product tanker; and (b) $7.23 per day per LR1 product tanker vessel. The agreement also provides for a technical and commercial management fee of $0.05 per day per vessel and an annual increase of 3% after January 1, 2022 for the remaining period unless agreed otherwise.

 

 

 Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containers on June 29, 2020. As per the amendment to the Management Agreement dated June 26, 2020, the management fees are fixed at: (a) $5.3 per day per Container vessel of 1,500 TEU up to 1,999 TEU; and (b) $6.1 per day per Container vessel of 2,000 TEU up to 3,450 TEU.

 

Drydocking expenses are reimbursed at cost for all vessels.

 

For the six month periods ended June 30, 2020 and 2019 certain extraordinary fees and costs related to regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation and under Company’s Management Agreement amounted to $3,654 and $5,563, respectively, and are presented under “Container vessel owning companies acquisition/ vessels improvements” in the condensed Consolidated Statements of Cash Flows. (Please refer to Note 5)

 

Total vessel operating expenses for the three month periods ended June 30, 2020 and 2019 amounted to $29,836 and $26,481, respectively. Total vessel operating expenses for the six month periods ended June 30, 2020 and 2019 amounted to $59,673 and $54,387, respectively.

 

General and administrative expenses: On May 28, 2010, Navios Acquisition entered into an Administrative Services Agreement with the Manager, pursuant to which the Manager provides certain administrative management services to Navios Acquisition which include: bookkeeping, audit and accounting services, legal and insurance services, administrative and clerical services, banking and financial services, advisory services, client and investor relations and other services. The Manager is reimbursed for reasonable costs and expenses incurred in connection with the provision of these services. In May 2014, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager, until May 2020.

 

Following the Merger with Navios Midstream, completed on December 13, 2018, the Administrative Services Agreement covered the vessels acquired.

 

In August 2019, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager until January 1, 2025, to be automatically renewed for another five years. The agreement also provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Administrative Services Agreement is terminated on or before December 31, 2024.

 

Following the Liquidation of Navios Europe I in December 2019, Navios Acquisition acquired three MR1 product tankers and two LR1 product tankers. The Administrative Services Agreement also covers the vessels acquired.

 

Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containers on June 29, 2020. The Administrative Services Agreement also covers the vessels acquired.

 

For each of the three month periods ended June 30, 2020 and 2019 the expense arising from administrative services rendered by the Manager amounted to $2,985 and $2,761, respectively. For each of the six month periods ended June 30, 2020 and 2019 the expense arising from administrative services rendered by the Manager amounted to $5,987 and $5,626, respectively.

 

Balance due from/ (to) related parties (exluding Navios Europe II): Balance due from related parties (both short and long-term) as of June 30, 2020, was $16,697 (December 31, 2019: $14,658) and balance due to related parties as of June 30, 2020 was $0 (December 31, 2019:$32,150). The balances mainly consisted of administrative expenses, costs related to regulatory requirements including ballast water treatment system, special survey and dry docking expenses, as well as operating expenses and working capital deposits, in accordance with the Management Agreement. The balance due from related parties excludes the amount of the working capital deposits, in accordance with the Management Agreement of $1,845 for the seven containerships acquired after the liquidation of Navios Europe II. The amount of $1,845 million is included under “Assets held for sale” in the condensed consolidated balance sheets.

 

Navios Midstream Merger Agreement: On December 13, 2018, Navios Acquisition completed the Merger contemplated by the Merger Agreement, dated as of October 7, 2018, by and among Navios Acquisition, its direct wholly-owned subsidiary Merger Sub, Navios Midstream and NAP General Partner. Pursuant to the Merger Agreement, Merger Sub merged with and into Navios Midstream, with Navios Midstream surviving as a wholly-owned subsidiary of Navios Acquisition.

 

 

Omnibus Agreements

 

Acquisition Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Acquisition Omnibus Agreement”) with Navios Holdings and Navios Partners in connection with the closing of Navios Acquisition’s initial vessel acquisition, pursuant to which, among other things, Navios Holdings and Navios Partners agreed not to acquire, charter-in or own liquid shipment vessels, except for container vessels and vessels that are primarily employed in operations in South America without the consent of an independent committee of Navios Acquisition. In addition, Navios Acquisition, under the Acquisition Omnibus Agreement, agreed to cause its subsidiaries not to acquire, own, operate or charter-in drybulk carriers under specific exceptions. Under the Acquisition Omnibus Agreement, Navios Acquisition and its subsidiaries grant to Navios Holdings and Navios Partners a right of first offer on any proposed sale, transfer or other disposition of any of its drybulk carriers and related charters owned or acquired by Navios Acquisition. Likewise, Navios Holdings and Navios Partners agreed to grant a similar right of first offer to Navios Acquisition for any liquid shipment vessels they might own. These rights of first offer will not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the existing terms of any charter or other agreement with a counterparty; or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third party.

 

Midstream Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Midstream Omnibus Agreement”), with Navios Midstream, Navios Holdings and Navios Partners in connection with the Navios Midstream IPO, pursuant to which Navios Acquisition, Navios Midstream, Navios Holdings, Navios Partners and their controlled affiliates generally have agreed not to acquire or own any VLCCs, crude oil tankers, refined petroleum product tankers, liquefied petroleum gas (“LPG”) tankers or chemical tankers under time charters of five or more years without the consent of the Navios Midstream General Partner. The Midstream Omnibus Agreement contains significant exceptions that have allowed Navios Acquisition, Navios Holdings, Navios Partners or any of their controlled affiliates to compete with Navios Midstream under specified circumstances.

 

Under the Midstream Omnibus Agreement, Navios Midstream and its subsidiaries have granted to Navios Acquisition a right of first offer on any proposed sale, transfer or other disposition of any of its VLCCs or any crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers and related charters owned or acquired by Navios Midstream. Likewise, Navios Acquisition have agreed (and will cause its subsidiaries to agree) to grant a similar right of first offer to Navios Midstream for any of the VLCCs, crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers under charter for five or more years it might own. These rights of first offer do not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the terms of any charter or other agreement with a charter party, or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third-party.

 

Navios Containers Omnibus Agreement: In connection with the Navios Maritime Containers Inc. (“Navios Containers”) private placement and listing on the Norwegian over-the-counter market effective June 8, 2017, Navios Acquisition entered into an omnibus agreement with Navios Containers, Navios Midstream, Navios Holdings and Navios Partners, pursuant to which Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream have granted to Navios Containers a right of first refusal over any container vessels to be sold or acquired in the future. The omnibus agreement contains significant exceptions that will allow Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream to compete with Navios Containers under specified circumstances.

 

 

Navios Midstream General Partner Option Agreement with Navios Holdings: Navios Acquisition entered into an option agreement, dated November 18, 2014, with Navios Holdings under which Navios Acquisition grants Navios Holdings the option to acquire any or all of the outstanding membership interests in Navios Midstream General Partner and all of the incentive distribution rights in Navios Midstream representing the right to receive an increasing percentage of the quarterly distributions when certain conditions are met. The option shall expire on November 18, 2024. Any such exercise shall relate to not less than twenty-five percent of the option interest and the purchase price for the acquisition of all or part of the option interest shall be an amount equal to its fair market value.

 

Balance due from Navios Europe II: Navios Holdings, Navios Acquisition and Navios Partners have made available to Navios Europe II revolving loans up to $43,500 to fund working capital requirements. In March 2017, the availability under the Navios Revolving Loans II was increased by $14,000. See Note 8 for the Investment in Navios Europe II.

 

Following the Liquidation of Navios Europe II, the balance due from Navios Europe II as of June 30, 2020 was $0. The balance due from Navios Europe II as of December 31, 2019 was $44,908 which included the Navios Revolving Loans II of $20,662, the non-current amount of $7,558 related to the accrued interest income earned under the Navios Term Loans II under the caption “Due from related parties, long-term” and the accrued interest income earned under the Navios Revolving Loans II of $16,688 under the caption “Due from related parties, short-term.”

 

NOTE 14: COMMITMENTS AND CONTINGENCIES

 

 

In September 2018, Navios Acquisition agreed to a 12-year bareboat charter-in agreement with de-escalating purchase options for two newbuild Japanese VLCCs each delivering in the fourth quarter of 2020 and the first quarter of 2021. In the first quarter of 2019, Navios Acquisition exercised its option for a third Japanese VLCC newbuilding under a 12 year bareboat chartered-in agreement with de-escalating purchase options. The vessel is expected to be delivered in the second quarter of 2021. In the second quarter of 2020, Navios Acquisition exercised its option for a fourth Japanese newbuild VLCC under a twelve year bareboat charter agreement with de-escalating purchase options and expected delivery in the second quarter of 2022.

 

The future minimum commitments as of June 30, 2020 of Navios Acquisition under its charter-in agreement for vessels delivery are as follows:

 

         
    Amount  
Lease Obligations (Time Charters) for vessels to be delivered:        
12 month period ending        
June 30, 2021     10,397  
June 30, 2022     25,740  
June 30, 2023     33,434  
June 30, 2024     33,526  
June 30, 2025     33,434  
June 30, 2026 and thereafter     264,952  
Total   $ 401,483  

 

 

 

The Company is involved in various disputes and arbitration proceedings arising in the ordinary course of business. Provisions have been recognized in the financial statements for all such proceedings where the Company believes that a liability may be probable, and for which the amounts are reasonably estimable, based upon facts known at the date of the financial statements were prepared. In the opinion of the management, the ultimate disposition of these matters individually and in aggregate will not materially affect the Company’s financial position, results of operations or liquidity.

 

 

NOTE 15: COMMON STOCK

 

 

Common Stock and Puttable Common Stock

 

 

In February 2018, the Board of Directors of Navios Acquisition authorized a stock repurchase program for up to $25.0 million of Navios Acquisition’s common stock, for two years. Stock repurchases were made from time to time for cash in open market transactions at prevailing market prices or in privately negotiated transactions. The timing and amount of repurchases under the program were determined by management based upon market conditions and other factors. Repurchases were made pursuant to a program adopted under Rule 10b5-1 under the Securities Exchange Act of 1934, as amended. The program did not require any minimum repurchase or any specific number or amount of shares of common stock and was suspended or reinstated at any time in Navios Acquisition’s discretion and without notice. Repurchases were subject to restrictions under Navios Acquisition’s credit facilities and indenture. The program expired in February 2020. Upon the expiration, the Company had repurchased and cancelled 735,251 shares of common stock, at a total cost of approximately $7,493.

 

 

Equity Offering

 

In October 2019, Navios Acquisition completed a registered direct offering of 1,875,000 shares of its common stock at $8.00 per share, raising gross proceeds of $15,000. Total net proceeds of the above transactions, net of agents’ costs of $675 and offering costs of $957, amounted to $13,368.

 

 

Continuous Offering Program

 

On November 29, 2019, as further updated on December 23, 2019 to provide for Navios Acquisition’s replacement of its expiring universal shelf, Navios Acquisition entered into a Continuous Offering Program Sales Agreement, pursuant to which Navios Acquisition may issue and sell from time to time through the sales agent shares of common stock having an aggregate offering price of up to $25,000. The sales were being made pursuant to a prospectus supplement as part of a shelf registration statement which was set to expire in December 2019. Navios Acquisition went effective on a new shelf registration statement which was declared effective on December 23, 2019. Accordingly, an updated Continuous Offering Program Sales Agreement (the “Sales Agreement”) was entered into on December 23, 2019. As before, the Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Acquisition and indemnification obligations of the parties thereto as well as certain termination rights for such parties. As of June 30, 2020, since the commencement of the program, Navios Acquisition has issued 486,519 shares of common stock and received net proceeds of $3,047.

 

As of June 30, 2020, the Company was authorized to issue 250,000,000 shares of $0.0001 par value common stock of which 16,089,890 were issued and outstanding.

 

 

Stock based compensation

 

During the fiscal year 2019 and the six month period ended June 30, 2020, the Company did not authorize and issue any restricted shares of common stock to its directors and officers.

 

2018

 

In December 2018, Navios Acquisition authorized and issued in the aggregate 129,269 restricted shares of common stock to its directors and officers. These awards of restricted common stock are based on service conditions only and vest over four years.

 

 

The holders of restricted stock are entitled to dividends paid on the same schedule as paid to the stock-holders of the company. The fair value of restricted stock is determined by reference to the quoted stock price on the date of grant of $5.36 per share (or total fair value of $693).

 

Compensation expense is recognized based on a graded expense model over the vesting period.

 

The effect of compensation expense arising from the stock-based arrangement described above was $47 and $90 for the three months periods ended June 30, 2020 and 2019 respectively, and it is reflected in general and administrative expenses on the statement of operations. The recognized compensation expense for the year is presented as adjustment to reconcile net income to net cash provided by operating activities on the statements of cash flows. For the six month period ended June 30, 2020 and 2019, the effect of compensation expense arising from the stock-based arrangement described above amounted to $94 and $179, respectively.

 

There were no restricted stock or stock options exercised, forfeited or expired, that were issued in 2018, during the six month period ended June 30, 2020.

 

As of June 30, 2020 and December 31, 2019, there remained 95,452 and 96,952 restricted shares outstanding, respectively, that were issued in 2018, that had not yet vested.

 

The estimated compensation cost relating to service conditions of non-vested restricted stock, not yet recognized was $233 as of June 30, 2020 and is expected to be recognized over the weighted average time to vest of 2.5 years.

 

2017

 

In December 2017, Navios Acquisition authorized and issued in the aggregate 118,328 restricted shares of common stock to its directors and officers. These awards of restricted common stock are based on service conditions only and vest over four years.

 

The holders of restricted stock are entitled to dividends paid on the same schedule as paid to the stock holders of the Company. The fair value of restricted stock is determined by reference to the quoted stock price on the date of grant of $17.7 per share (or total fair value of $2,094).

 

Compensation expense is recognized based on a graded expense model over the vesting period.

 

The effect of compensation expense arising from the stock-based arrangement described above was $76 and $141 for the three month period ended June 30, 2020 and 2019, respectively, and it is reflected in general and administrative expenses on the statement of operations. The recognized compensation expense for the year is presented as adjustment to reconcile net income to net cash provided by operating activities on the statements of cash flows. For the six month period ended June 30, 2020 and 2019, the effect of compensation expense arising from the stock-based arrangement described above amounted to $152 and $281, respectively.

 

There were no restricted stock or stock options exercised, forfeited or expired, that were issued in 2017, during the six month period ended June 30, 2020.

 

As of June 30, 2020 and December 31, 2019, there remained 58,496 and 59,162 restricted shares outstanding, respectively, that were issued in 2017, that had not yet vested.

 

The estimated compensation cost relating to service conditions of non-vested restricted stock, not yet recognized was $267 as of June 30, 2020 and is expected to be recognized over the weighted average time to vest of 1.5 years.

 

 

NOTE 16: SEGMENT INFORMATION

 

 

Navios Acquisition reports financial information and evaluates its operations by charter revenues. Navios Acquisition does not use discrete financial information to evaluate operating results for each type of charter. As a result, management reviews operating results solely by revenue per day and operating results of the fleet and thus Navios Acquisition has determined that it operates under one reportable segment.

 

The following table sets out operating revenue by geographic region for Navios Acquisition’s reportable segment. Revenue is allocated on the basis of the geographic region in which the customer is located. Tanker vessels operate worldwide. Revenues from specific geographic regions which contribute over 10% of total revenue are disclosed separately.

 

 

Revenue by Geographic Region

 

Vessels operate on a worldwide basis and are not restricted to specific locations. Accordingly, it is not possible to allocate the assets of these operations to specific countries.

 

   

                                 
    Three Month
Period ended
June 30, 2020
(unaudited)
    Three Month
Period ended
June 30, 2019
(unaudited)
    Six Month
Period ended
June 30, 2020
(unaudited)
    Six Month
Period ended
June 30, 2019
(unaudited)
 
Asia   $ 87,753     $ 43,466     $ 161,265     $ 101,784  
Europe     16,659       4,232       33,558       9,148  
United States     7,812       10,887       15,258       24,712  
   
 
 
   
 
 
   
 
 
   
 
 
 
Total   $ 112,224     $ 58,585     $ 210,081     $ 135,704  
   
 
 
   
 
 
   
 
 
   
 
 
 

 

 

NOTE 17: EARNINGS/ (LOSS) PER COMMON SHARE

 

 

Earnings/ (loss) per share is calculated by dividing net income attributable to common stockholders by the weighted average number of shares of common stock of Navios Acquisition outstanding during the period.

 

 

 

                                 
    For the Three
Months Ended
June 30, 2020
    For the Three
Months Ended
June 30, 2019
    For the Six
Months Ended
June 30, 2020
    For the Six
Months Ended
June 30, 2019
 
Numerator:                                
Net income/ (loss)   $ 31,017     $ (16,550)     $ 31,886     $ (15,689)  
Less:                                
Dividend declared on restricted shares     (47)     (65)       (94)     (131)  
Undistributed loss attributable to Series C participating preferred shares                                (13)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) attributable to common stockholders, basic   $ 30,970     $ (16,615)     $ 31,792     $ (15,833)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Plus:                                
Undistributed income attributable to Series C participating preferred shares                                13  
Net income/ (loss) attributable to common stockholders, diluted   $ 30,970     $ (16,615)     $ 31,792     $ (15,820)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Denominator:                                
Denominator for basic net income/ (loss) per share — weighted average shares     15,888,354       13,510,361       15,803,166       13,414,547  
Series C participating preferred shares                              
Denominator for diluted net income/ (loss)  per share — adjusted weighted average shares     16,043,704       13,510,361       15,958,897       13,414,547  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) per share, basic   $ 1.95     $ (1.23)     $ 2.01     $ (1.18)  
Net income/ (loss) per share, diluted   $ 1.93     $ (1.23)     $ 1.99     $ (1.18)  
   
 
 
   
 
 
   
 
 
   
 
 
 

 

 

 

NOTE 18: INCOME TAXES

 

 

Marshall Islands, Cayman Islands, British Virgin Islands, and Hong Kong, do not impose a tax on international shipping income. Under the laws of these countries, the countries of incorporation of the Company and its subsidiaries and /or vessels’ registration, the companies are subject to registration and tonnage taxes which have been included in the daily management fee.

 

In accordance with the currently applicable Greek law, foreign flagged vessels that are managed by Greek or foreign ship management companies having established an office in Greece are subject to duties towards the Greek state which are calculated on the basis of the relevant vessels’ tonnage. The payment of said duties exhausts the tax liability of the foreign ship owning company and the relevant manager against any tax, duty, charge or contribution payable on income from the exploitation of the foreign flagged vessel. In case that tonnage tax and/or similar taxes/duties are paid to the vessel’s flag state, these are deducted from the amount of the duty to be paid in Greece.

 

The amount included in Navios Acquisition’s statements of operations related to the Greek Tonnage tax for the six months ended June 30, 2020,and 2019 was $959 and $399, respectively, and for the three months ended June 30, 2020 and 2019, was $69 and $233, respectively.

 

Pursuant to Section 883 of the Internal Revenue Code of the United States (the “Code”), U.S. source income from the international operation of ships is generally exempt from U.S. income tax if the company operating the ships meets certain incorporation and ownership requirements. Among other things, in order to qualify for this exemption, the company operating the ships must be incorporated in a country, which grants an equivalent exemption from income taxes to U.S. corporations. All the Navios Acquisition’s ship-operating subsidiaries satisfy these initial criteria. In addition, these companies must meet an ownership test. Subject to proposed regulations becoming finalized in their current form, the management of Navios Acquisition believes by virtue of a special rule applicable to situations where the ship operating companies are beneficially owned by a publicly traded company like Navios Acquisition, the second criterion can also be satisfied based on the trading volume and ownership of the Company’s shares, but no assurance can be given that this will remain so in the future.

 

NOTE 19: SUBSEQUENT EVENTS

 

 

On July 28, 2020, the Board of Directors declared a quarterly cash dividend in respect of the second quarter of 2020 of $0.30 per share of common stock which will be paid on October 8, 2020 to stockholders of record as of September 4, 2020. The declaration and payment of any further dividends remain subject to the discretion of the Board of Directors and will depend on, among other things, Navios Acquisition’s cash requirements as measured by market opportunities and restrictions under its credit agreements and other debt obligations and such other factors as the Board of Directors may deem advisable.

 

Subsequently to June 30, 2020 Navios Acquisition repurchased $9,000 of Ship Mortgage Notes for a cash consideration of $5,338.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

SIGNATURES

 

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

 

NAVIOS MARITIME ACQUISITION CORPORATION.

 

By: /s/ Angeliki Frangou

Angeliki Frangou

Chief Executive Officer

Date: August 6, 2020

 

EX-4.1

Exhibit 4.1

SEVENTH AMENDMENT TO THE MANAGEMENT AGREEMENT

This SEVENTH AMENDMENT TO THE MANAGEMENT AGREEMENT (this “Amendment”), dated as of December 13, 2019 is made by and between Navios Maritime Acquisition Corporation, a Marshall Islands corporation (“NMAC”) and Navios Tankers Management Inc., a Marshall Islands corporation (“Tankers Management”, and together with NMAC, the “Parties”) and amends the Management Agreement (including all amendments thereto, the “Agreement”) entered into between NMAC and Navios Shipmanagement Inc. (“Shipmanagement”) on May 28, 2010 as such Agreement was assigned to Tankers Management via an assignment agreement among the Parties and Shipmanagement dated September 10, 2010 and subsequently amended. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings given them in the Agreement.

W I T N E S S E T H:

WHEREAS, the Parties desire to amend the Agreement.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

 

  1.

The first paragraph of Schedule “B” shall be amended and restated in its entirety as follows:

“In consideration for the provision of the Services listed in Schedule “A” by the Manager to Navios Acquisition, Navios Acquisition shall pay the Manager:

 

  1.

Until December 31, 2019 a fixed daily fee of US$7,150 per owned LR1 product tanker vessel, $6,500 per owned MR1, MR2 product tanker vessel and chemical tanker vessel, and $9,500 per VLCC tanker vessel, payable on the last day of each month.

 

  2.

Commencing January 1, 2020,

 

  a.

a fixed daily fee of US$7,225 per owned LR1 product tanker vessel, $6,825 per owned MR1, MR2 product tanker vessel and chemical tanker vessel, and $9,650 per VLCC tanker vessel, payable on the last day of each month for two years (months one to twenty-four) (the “Fixed Daily Fee”); unless the parties agree otherwise, for each 12 month period after such two years, a 3% increase of the Fixed Daily Fee per Owned Vessel. Navios Acquisition’s payment to the Manager for dry-docking expenses shall be at-cost for all vessels.

 

  b.

a technical and commercial management daily fee of $50 per Vessel (the “Management Fee”)

 

  2.

Counterparts. This Amendment may be executed in separate counterparts, all of which taken together shall constitute a single instrument.

[Remainder ofpage intentionally left blank. Signature page to follow.]


IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective as of the day and year first above written.

NAVIOS MARITIME ACQUISITION CORPORATION

 

By:   /s/ Leonidas Korres
Name: Leonidas Korres
.Title: Chief Financial Officer

NAVIOS TANKERS MANAGEMENT INC.

 

By:   /s/ Efstratios Desypris
Name: Efstratios Desypris
Title: President/Director

[Signature Page—Amendment to Management Agreement]

EX-4.2

Exhibit 4.2

EIGHT AMENDMENT TO THE MANAGEMENT AGREEMENT

This EIGHT AMENDMENT TO THE MANAGEMENT AGREEMENT (this “Amendment”), dated as of June 26, 2020 is made by and between Navios Maritime Acquisition Corporation, a Marshall Islands corporation (“NMAC”) and Navios Tankers Management Inc., a Marshall Islands corporation (“Tankers Management”, and together with NMAC, the “Parties”) and amends the Management Agreement (including all amendments thereto, the “Agreement”) entered into between NMAC and Navios Shipmanagement Inc. (“Shipmanagement”) on May 28, 2010 as such Agreement was assigned to Tankers Management via an assignment agreement among the Parties and Shipmanagement dated September 10, 2010 and subsequently amended. Capitalized terms used and not otherwise defined in this Amendment shall have the meanings given them in the Agreement.

W I T N E S S E T H:

WHEREAS, the Parties desire to amend the Agreement.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. The first paragraph of Schedule “B” shall be amended as follows:

Add: “US$5,250 per day for container vessels of 1,500TEU up to 1,999TEU and US$6,100 per day for container vessels of 2,000 TEU up to 3,450 TEU” before “payable on the last day”

Counterparts. This Amendment may be executed in separate counterparts, all of which taken together shall constitute a single instrument.

[Remainder of page intentionally left blank. Signature page to follow.]


IN WITNESS ‘WHEREOF, the parties hereto have executed this Amendment effective as of the day and year first above written.

NAVIOS MARITIME ACQUISITION CORPORATION

 

By:   /s/ Leonidas Korres
Name: Leonidas Korres
Title: Chief Financial Officer

NAVIOS TANKERS MANAGEMENT INC.

 

By:   /s/ Efstratios Desypris
Name: Efstratios Desypris
Title: President/Director

[Signature Page—Amendment to Management Agreement]

EX-4.3

Exhibit 4.3

Private & Confidential

Date 25 June 2020

APHRODITE SHIPPING CORPORATION

- and

DIONE SHIPPING CORPORATION

as joint and several Borrowers

- and -

THE BANKS AND FINANCIAL INSTITUTIONS

listed in Schedule 1

as Lenders

- and

EUROBANK S.A.

as Agent, Arranger, and Security Agent

 

 

LOAN AGREEMENT

(No. 242 /25 June 2020)

 

 

relating to a loan facility of up to $20,800,000

 

PIRAEUS


INDEX

 

Clause         Page  
1    INTERPRETATION      1  
2    LOAN FACILITY      18  
3    POSITION OF THE LENDERS ETC      19  
4    DRAWDOWN      20  
5    INTEREST      21  
6    INTEREST PERIODS      23  
7    DEFAULT INTEREST      23  
8    REPAYMENT AND PREPAYMENT      24  
9    CONDITIONS PRECEDENT      26  
10    REPRESENTATIONS AND WARRANTIES      26  
11    GENERAL UNDERTAKINGS      30  
12    CORPORATE UNDERTAKINGS      34  
13    INSURANCE      37  
14    SHIP COVENANTS      42  
15    SECURITY COVER      46  
16    PAYMENTS AND CALCULATIONS      47  
17    APPLICATION OF RECEIPTS      48  
18    APPLICATION OF EARNINGS      49  
19    EVENTS OF DEFAULT      51  
20    FEES AND EXPENSES      55  
21    INDEMNITIES      56  
22    NO SET-OFF OR TAX DEDUCTION      58  
23    ILLEGALITY, ETC      59  
24    INCREASED COSTS      60  
25    SET-OFF/13AIL-IN      61  
26    TRANSFERS AND CHANGES IN LENDING OFFICES      63  
27    VARIATIONS AND WAIVERS      67  
28    NOTICES      68  

29 SUPPLEMENTAL

     70  
30    LAW AND JURISDICTION      70  

SCHEDULE 1 LENDERS AND COMMITMENTS

     71  

SCHEDULE 2

     71  

DRAWDOWN NOTICE

     71  

SCHEDULE 3

     71  

CONDITION PRECEDENT DOCUMENTS

     71  

SCHEDULE 4 TRANSFER CERTIFICATE

     71  

EXECUTION PAGE

     72  


THIS LOAN AGREEMENT (No. 242) is made on 25 June 2020

BETWEEN:

 

(1)

APHRODITE SHIPPING CORPORATION and DIONE SHIPPING CORPORATION, each being a corporation incorporated and existing under the laws of the Republic of Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road Ajeltake Islands, Majuro, MH96960, Marshall Islands, as joint and several Borrowers;

 

(2)

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

 

(3)

EUROBANK S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece, as Agent;

 

(4)

EUROBANK S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece, as Arranger; and

 

(5)

EUROBANK S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece, as Security Agent.

WHEREAS

The Lenders have agreed to make available to the Borrowers, jointly and severally, a loan of up to the lesser of (i) $20,800,000 and (ii) the Cash Collateral as at the Drawdown Date plus 55% of the aggregate Market Value of the Ships to be determined no more than one month prior to the Drawdown Date, in a single advance for the purpose of refinancing (aa) any outstanding indebtedness under the Existing Loan Agreement or (bb) if the same has already been repaid, any outstanding indebtedness which has been otherwise incurred by the Borrowers for the purpose of repaying any indebtedness under the Existing Loan Agreement, upon and subject to the terms and conditions contained in this Agreement.

IT IS AGREED as follows:

 

1

INTERPRETATION

 

1.1

Definitions. Subject to Clause 1.5 (General Interpretation) in this Agreement:

“Account Bank” means Eurobank S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece or Eurobank Cyprus Ltd, acting through its office at 41, Arch. Makarios III Ave, 1065 Nicosia, Cyprus or such other bank as the Agent may agree to be an Account Bank for the purposes of this Agreement;

“Accounts Pledges” means the deeds of pledge of the Earnings Accounts and the Retention Account in such form as the Agent may approve or require, as security for the Secured Liabilities and in the singular means any one of them;

“Affected Lender” has the meaning given in Clause 5.5 (Market Disruption Non Availability);

“Agency and Trust Deed” means the agency and trust deed executed or to be executed between the Borrowers, the Lenders, the Agent, the Security Agent and the Arranger in such form as the Lenders may approve or require;

 

1


“Agent” means Eurobank S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece or any successor appointed under clause 5 of the Agency and Trust Deed;

“Aphrodite” means Aphrodite Shipping Corporation a corporation incorporated and existing under the laws of the Republic of Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road Ajeltake Islands, Majuro, MH96960;

“Approved Flag” means the the Panama flag or such other flag as the Lenders may, in their sole and absolute discretion, approve as the flag on which either Ship shall be registered;

“Approved Flag State” means the Republic of Panama or any other country in which the Lenders may in their sole and absolute discretion, approve that either Ship be registered;

“Approved Manager” means, in relation to each Ship, Navios Tankers Management Inc., a corporation incorporated under the laws of the Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 or any other parent or subsidiary or Related Person of the Approved Manager and/or of Angeliki Frangou or any other entity which the Agent may, with the authorisation of the Majority Lenders, approve from time to time as the technical and/or commercial manager of a Ship (such approval not to be unreasonably withheld);

“Approved Manager’s Undertakings” means the letters of undertaking and assignment of insurances executed by the Approved Manager in respect of each Ship in favour of the Security Agent incorporating a subordination of their respective rights against each Ship and the relevant Owner to the rights of the Creditor Parties under the Finance Documents, in such form as the Agent may approve or require and in the singular means any one of them;

“Asset Cover Ratio” means, on any day, the ratio of the Security Value to the Loan on that day;

“Availability Period” means the period commencing on the date of this Agreement and ending on the earlier of:

 

  (a)

20 July 2020 or such later date as the Lenders may agree with the Borrowers; and

 

  (b)

the date on which the Total Commitments are fully borrowed, cancelled or terminated;

“Balloon Instalment” means, in relation to the Loan, the repayment instalment referred to as the “Balloon Instalment” in Clause 8.1 (Amount of repayment instalments);

“Borrower” means each of Aphrodite and Dione and in the plural means both of

them; “Breakage Costs” means the amount (if any) by which:

the interest, which a Lender should have received for the period from the date of receipt of all or any part of its participation in an Advance, the Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Advance, the Loan or Unpaid Sum), had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Relevant Interbank Market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period

 

2


or, if applicable, CIRR Break Costs;

“Business Day” means a day (other than Saturday and Sunday) on which banks are open in London, Athens, Nicosia and Piraeus and, in respect of a day on which a payment is required to be made under a Finance Document, also in New York City and, in respect of the Drawdown Date, Frankfurt and Panama City, Republic of Panama;

“Cash Collateral” means as at the Drawdown Date the amount standing to the credit of the Retention Account in accordance with Clause 11.19;

“Change of Control Event” means the occurrence after the date of this Agreement of any of the following:

 

  (a)

the Permitted Owners sell any shares in the Corporate Guarantor which would reduce the proportion of issued voting shares owned by them in aggregate in the Corporate Guarantor to below 20%; or

 

  (b)

the Corporate Guarantor issues further shares which would reduce the proportion of issued voting shares in the Corporate Guarantor owned by the Permitted Owners in aggregate to below 20%; or

 

  (c)

a Borrower is not or ceases to be wholly-owned (including beneficially owned) or controlled by the Corporate Guarantor;

“Charter” means any time charter or other contract of employment (including any entry in a pool) in respect of a Ship in excess of 12 months duration (excluding extension options) in form and substance acceptable to the Agent;

“Charterer” means any charterer who may enter into a Charter with a Borrower in respect of its Ship;

“Charterparty Assignment” means, with respect to any Charter, an assignment of the relevant Owner’s rights under such Charter (and any guarantee issued in respect of the performance of the Charterer under such Charter) to be executed by such Borrower in favour of the Security Agent (including any notices and/or acknowledgments and/or undertakings associated therewith) in such form as the Agent may approve or require and, in the plural, means all of them;

“Code” means the US Internal Revenue Code of 1986, as amended, and the regulations promulgated and rulings issued thereunder;

“Commitment” means, in relation to a Lender, the amount set opposite its name in Schedule 1, or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and “Total Commitments” means the aggregate of the Commitments of all the Lenders);

“Compliance Certificate” means a certificate in the form set out in Schedule 6 (or in any other form which the Agent, acting with the authorisation of all the Lenders, approves or requires);

“Contractual Currency” has the meaning given in Clause 21.5 (Currency

 

3


indemnity); “control” means, in respect of a company:

 

  (a)

the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of that company or to appoint or remove all, or the majority, of the directors or other equivalent officers of that company or to give directions with respect to the operating and financial policies of that company which the directors or other equivalent officers of that company are obliged to comply with; or

 

  (b)

the holding of more than one-half of the issued share capital of that company (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital), and references to controlling and controlled shall be construed accordingly;

“Contribution” means, in relation to a Lender, the part of the Loan which is owing to that Lender;

“Corporate Guarantee” means the guarantee and indemnity of the Borrowers’ obligations under this Agreement and the other Finance Documents to be given by the Corporate Guarantor in such form as the Agent may approve or require;

“Corporate Guarantor” means Navios Maritime Acquisition Corporation, a corporation incorporated and existing under the laws of the Republic of Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road Ajeltake Islands, Majuro, M1196960;

“Creditor Party” means the Agent, the Arranger, the Security Agent and the Account Bank or any Lender, whether as at the date of this Agreement or at any later time and in the plural means all of them,

“Dione” means Dione Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road Ajeltake Islands, Majuro, M1196960;

“Dollars” and “$” means the lawful currency for the time being of the United States of America;

“Drawdown Date” means, the date requested by the Borrowers for the Loan to be made available, or (as the context requires) the date on which the Loan is actually advanced;

“Drawdown Notice” means a notice in the form set out in Schedule 2 (or in any other form which the Agent approves or reasonably requires);

“Earnings” means, in respect of each Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to a Borrower or the Security Agent and which arise out of the use or operation of such Ship, including (but not limited to):

 

  (a)

all freight, hire and passage moneys, compensation payable to the relevant Owner or the Security Agent in the event of requisition of its Ship for hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of such Ship;

 

  (b)

all moneys which are at any time payable under Insurances in respect of loss of earnings; and

 

  (c)

if and whenever such Ship is employed on terms whereby any moneys falling within paragraphs (a) or (b) above are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to such Ship;

 

4


“Earnings Account” means, with respect to each Borrower, an account in the name of such

Borrower with the Account Bank at its Branch 29 (or any other office of the Account Bank) which is designated by the Account Bank in writing as the Earnings Account of such Borrower for the purposes of this Agreement;

“EIAPP Certificate” means the Engine International Air Pollution Prevention Certificate issued or to be issued pursuant to Annex VI of the International Convention for the Prevention of Pollution from Ship, MARPOL 73/78 (Regulations for the Prevention of Air Pollution from Ships) (as currently in force and as the same may be amended from time to time) in relation to a Ship;

“Environmental Affiliate” means any agent or employee of a Borrower or any person having a contractual relationship with a Borrower in connection with its 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 such Ship;

“Environmental Approvals” means all authorisations, consents, licences, permits, exemptions or other approvals whatsoever required under applicable Environmental Laws;

“Environmental Claim” means:

 

  (a)

any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or

 

  (b)

any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,

and “claim” means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset;

“Environmental Incident” means:

 

  (a)

any release of Environmentally Sensitive Material from a Ship; or

 

  (b)

any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship or either Borrower and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

 

  (c)

any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where either Borrower and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action;

“Environmental Law” means any law relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;

“Environmentally Sensitive Material” means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;

“Event of Default” means any of the events or circumstances described in Clause 19.1 (Events of Default);

 

5


“Existing Loan Agreement” means the loan agreement dated 18 December 2019 made between (amongst others) (i) Aphrodite and Dione as joint and several borrowers and (ii) Deutsche Bank AG as lender in respect of a loan of up to $32,500,000;

“FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

 

  (b)

any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

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

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

“Finance Documents” means:

 

  (a)

this Agreement;

 

  (b)

the Agency and Trust Deed;

 

  (c)

the Corporate Guarantee;

 

  (d)

the Mortgages;

 

  (e)

the General Assignments; (0 the Accounts Pledges;

 

  (g)

the Approved Manager’s Undertakings;

 

  (h)

any Charterparty Assignment;

 

  (i)

any Insurances Assignment; and

 

  (j)

any other document (whether creating a Security Interest or not) which is executed at any time by the Borrowers, the Corporate Guarantor or an Approved Manager or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the documents referred to in this definition;

“Final Maturity Date” means the date falling 48 months following the Drawdown Date;

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

 

  (a)

for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

 

  (b)

under any loan stock, bond, note or other security issued by the debtor;

 

  (c)

under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

6


  (d)

under a financial lease, a deferred purchase consideration arrangement or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (e)

under any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or

 

  (f)

under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (e) if the references to the debtor referred to the other person;

“General Assignment” means in relation to a Ship the general assignment of the Earnings, the Insurances and any Requisition Compensation of that Ship executed or to be executed by the relevant Owner in favour of the Security Agent, in such form as the Agent may approve or require;

“Group” means at any relevant time the Borrowers, the Corporate Guarantor and their subsidiaries and “member of the Group” shall be construed accordingly;

“IACS” means the International Association of Classification Societies;

“IAPP Certificate” means the International Air Pollution Prevention Certificate issued or to be issued pursuant to Annex VI of the International Convention for the Prevention of Pollution from Ship, MARPOL 73/78 (Regulations for the Prevention of Air Pollution from Ships) (as currently in force and as the same may be amended from time to time) in relation to a Ship;

“Insurances” means, in relation to a Ship:

 

  (a)

all policies and contracts of insurance, including entries of such Ship in any protection and indemnity or war risks association, which are effected in respect of such Ship, her Earnings or otherwise in relation to her; and

 

  (b)

all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium;

“Insurances Assignment” means the assignment of Insurances of a Ship executed or to be executed by any co-assured (other than a Borrower and the Approved Manager) in such form as the Agent may approve or require;

“Interest Period” means a period determined in accordance with Clause 6 (Interest Periods);

“ISM Code” means, in relation to its application to each Borrower, an Approved Manager, its Ship and its operation:

 

  (a)

‘The International Management Code for the Safc Operation of Ship and for Pollution Prevention’, currently known or referred to as the ‘ISM Code’, adopted by the Assembly of the International Maritime Organisation by Resolution A.741(18) on 4 November 1993 and incorporated on 19 May 1994 into chapter IX of the International Convention for the Safety of Life at Sea 1974 (SOLAS 1974); and

 

  (b)

all further resolutions, circulars, codes, guidelines, regulations and recommendations which are now or in the future issued by or on behalf of the International Maritime Organisation or any other entity with responsibility for implementing the ISM Code, including without limitation, the ‘Guidelines on implementation or administering of the International Safety Management (ISM) Code by Administrations’ produced by the International Maritime Organisations pursuant to Resolution A.788(19) adopted on 25 November 1995,

 

7


as the same may be amended, supplemented or replaced from time to time;

“ISM Code Documentation” includes:

 

  (a)

the document of compliance (DOC) and safety management certificate (SMC) issued pursuant to the ISM Code in relation to the Ships or either of them within the periods specified by the ISM Code; and

 

  (b)

all other documents and data which are relevant to the ISM SMS and its implementation and verification which the Agent may require; and

 

  (c)

any other documents which are prepared or which, are otherwise relevant to establish and maintain the Ships’ or the Borrowers’ or the Approved Managers’ compliance with the ISM Code which the Agent may require;

“ISM SMS” means the safety management system for each Ship which is required to be developed, implemented and maintained under the ISM Code;

“ISPS Code” means the International Ship and Port Facility Security Code constituted pursuant to resolution A.924(22) of the International Maritime Organisation (“IMO”) now set out in Chapter XI-2 of the Safety of Life at Sea Convention (SOLAS) 1974 (as amended) and the mandatory ISPS Code as adopted by a Diplomatic Conference of the IMO on Maritime Security in December 2002 and includes any amendments or extensions to it and any regulation issued pursuant to it but shall only apply to a Ship insofar as it is applicable law in that Ship’s flag state and any jurisdiction on which such Ship is operated;

“ISPS Code Documentation” includes:

 

  (a)

the International Ship Security Certificate issued pursuant to the ISPS Code in relation to each Ship within the period specified in the ISPS Code; and

 

  (b)

all other documents and data which arc relevant to the ISPS Code and its implementation and verification which the Agent may require;

“Latest Accounts” means, as at the date of calculation or, as the case may be, in respect of an accounting period, the annual audited consolidated financial statements of the Corporate Guarantor which the Corporate Guarantor is obliged to deliver to the Agent pursuant to Clause 11.7 (Provisions of financial statements);

“Lender” means, subject to Clause 26.6 (Lender re-organisation; waiver of Transfer Certificate):

 

  (a)

a bank or financial institution listed in Schedule 1 and acting through its branch indicated in Schedule 1 (or through another branch notified to the Borrowers under Clause 26.14 (Change of lending office) unless it has delivered a Transfer Certificate or Certificates covering the entire amounts of its Commitment and its Contribution; and

 

  (b)

any bank, financial institution or other entity which has become a Party in accordance with Clause 26 (Error! Reference source not found),

which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement;

“LIBOR” means, in relation to the Loan or any part of the Loan:

 

  (a)

the applicable Screen Rate at or about 11.00 a.m. (London time) on the Quotation Date for Dollars and for a period equal in length to the Interest Period then applicable to the Loan or that part of the Loan; or

 

8


  (b)

if on the Quotation Date no Screen Rate is displayed, the arithmetic mean (rounded upwards, if necessary, to the nearest one-sixteenth of one per cent) of the rates per annum quoted to the Agent by two leading banks in the London Interbank Market as their offered rates for deposits of Dollars in an amount comparable to the amount in relation to which LIBOR is to be determined and for a period equivalent to such period to prime banks in the London Interbank Market at or about 11:00 a.m. (London time) on the Quotation Date for Dollars and for a period equal in length to the Interest Period,

and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero;

“Liquidity” means:

 

  (a)

cash in hand legally and beneficially owned by any Group Member; and

 

  (b)

cash deposits legally and beneficially owned by any Group Member and which are deposited with (A) the Account Bank or (B) any other bank or financial institution

which in each case is at the free and unrestricted disposal of the relevant Group Member by which it is owned, including any funds held with any bank from time to time to satisfy minimum liquidity requirements;

“Loan” means the amount of up to $20,800,000 to be made available by the Lenders to the Borrowers or, as the context requires, the principal amount for the time being outstanding under this Agreement;

“Major Casualty” means any casualty to a Ship in respect of which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $750,000 or the equivalent in any other currency;

“Majority Lenders” means:

 

  (a)

before the Loan has been made, Lenders whose Commitments total 66.67 per cent. or more of the Total Commitments; and

 

  (b)

after the Loan has been made, Lenders whose Contributions total 66.67 per cent. or more of the Loan;

“Margin” means three per cent (3.00%) per annum;

“Market Value” means, in respect of a Ship, the market value of such Ship determined from time to time in accordance with Clause 15.2 (Valuation of a Ship);

“Material Adverse Effect” means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:

 

  (a)

the business, operations, property, condition (financial or otherwise) or prospects of any Security Party taken as a whole; or

 

  (b)

the ability of a Security Party to perform its obligations under the Finance Documents; or

 

  (c)

the legality, validity or enforceability of, or the effectiveness or ranking of, any Security Interest granted or purporting to be granted pursuant to any of the Finance Documents, or the rights or remedies of any Creditor Party under any of the Finance Documents;

 

9


“Money Laundering” has the meaning given to it in Article 1 of Directive 2015/849/EC of the Council of the European Communities;

“Mortgage” means, in respect of each Ship, a first preferred Panamanian ship mortgage executed or to be executed by the relevant Owner in favour of the Security Agent, in such form as the Agent may approve or require and in the plural means both of them;

“Negotiation Period” has the meaning given in Clause 5.6 (Alternative basis of interest or funding);

“Net Worth” means, at any relevant time, the Total Assets less Total Liabilities;

“Notifying Lender” has the meaning given in Clause 23.1 (Illegality) or Clause 24.1 (Increased Costs) as the context requires;

“Owner” means, in respect of each Ship, the Borrower which is at any relevant time the owner thereof;

“Payment Currency” has the meaning given in Clause 21.5 (Currency Indemnity);

“Permitted Owners” (i) Angeliki Frangou; (ii) each of her spouse, siblings, ancestors, descendants (whether by blood, marriage or adoption, and including stepchildren) and the spouses, siblings, ancestors and descendants thereof (whether by blood, marriage or adoption, and including stepchildren) of such natural persons, the beneficiaries, estates and legal representatives of any of the foregoing, the trustee of any bona fide trust of which any of the foregoing, individually or in the aggregate, are the majority in interest beneficiaries or grantors, and any corporation, partnership, limited liability company or other Person in which any of the foregoing, individually or in the aggregate, own or control a majority in interest; (iii) Navios Holdings; and (iv) all Affiliates controlled by the Persons named in clauses (i) and (ii) above;

“Permitted Security Interests” means:

 

  (a)

Security Interests created by the Finance Documents;

 

  (b)

liens for unpaid crew’s wages in accordance with usual maritime practice;

 

  (c)

liens for salvage;

 

  (d)

liens arising by operation of law for not more than 2 months’ prepaid hire under any charter in relation to a Ship not prohibited by this Agreement;

 

  (e)

liens for master’s disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation (including any lien for bunkers and port disbursements at any time in aggregate not exceeding $500,000), repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the relevant Owner in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.12(h) (Restrictions on chartering, appointment of managers etc.);

 

  (fl

any Security Interest created in favour of a claimant or defendant in any action of the court or tribunal before whom such action is brought as security for costs and expenses where a Borrower is prosecuting or defending such action in good faith by appropriate steps;

 

  (g)

Security Interests arising by operation of law in respect of taxes which are not overdue

 

10


for payment other than taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made;

 

  (h)

any guarantees granted by the Corporate Guarantor in the ordinary course of its business

“Pertinent Jurisdiction”, in relation to a company, means:

 

  (a)

England and Wales;

 

  (b)

the country under the laws of which the company is incorporated or formed;

 

  (c)

a country in which the company’s central management and control is or has recently been exercised;

 

  (d)

a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;

 

  (e)

a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and

 

  (f)

a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c) above;

“Potential Event of Default” means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default;

“Quotation Date” means, in respect of any period in respect of which LIBOR falls to be determined under this Agreement, the second Business Day before the first day of such period;

“Related Person” 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, including any publically listed subsidiaries;

“Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board;

“Relevant Person” has the meaning given in Clause 19.9 (Relevant Persons);

“Repayment Date” means a date on which a repayment is required to be made under Clause 8 (Repayment and Prepayment);

“Replacement Benchmark” means a benchmark rate which is:

 

  (a)

formally designated, nominated or recommended as the replacement for a Screen Rate by:

 

  (i)

the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

 

  (ii)

any Relevant Nominating Body,

 

11


and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;

 

  (b)

in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international loan markets as the appropriate successor to a Screen Rate; or

 

  (c)

in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Screen Rate.

“Required Security Amount” means the amount in $ (as certified by the Agent) which is 120% of the Loan;

“Requisition Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of “Total Loss”;

“Restricted Person” means a person that is (i) listed on, or owned or controlled by a person listed on any Sanctions List; (ii) located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory that is the target of country-wide Sanctions (including, without limitation, at the date of this Agreement Cuba, Iran, Myanmar (Burma), North Korea, Syria and Sudan); or (iii) otherwise a target of Sanctions;

“Retention Account” means the account in the name of the Borrowers with the Account Bank at its Branch 29 (or any other office of the Account Bank) which is designated by the Account Bank in writing as the Retention Account for the purposes of this Agreement;

“Sanctions” means any economic sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by: (i) the United States government; (ii) the United Nations; (iii) the European Union or its Member States; (iv) the United Kingdom; (v) any country to which any Security Party or an Approved Manager, or any other member of the Group or any Related Person of any of them is bound; or (vi) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury (“OFAC”), the United States Department of State, and Her Majesty’s Treasury (“HMT”) (together, “Sanctions Authorities” and each a “Sanctions Authority”);

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

“Screen Rate” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrowers;

“Screen Rate Replacement Event” means, in relation to a Screen Rate:

 

12


  (a)

the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders and the Borrowers, materially changed;

 

  (A)

the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

 

  (B)

information is published in any order, decree, notice, petition or filing, however described, or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (ii)

the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (iii)

the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or

 

  (iv)

the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or

 

  (c)

in the opinion of the Majority Lenders and the Borrowers, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement;

“Secured Liabilities” means all liabilities which the Borrowers, the other Security Parties, the Approved Managers or any of them have, at the date of this Agreement or at any later time or times, under or by virtue of the Finance Documents or any judgment relating to the Finance Documents; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country;

“Security Agent” means Eurobank S.A. a banking societe anonyme duly incorporated under the laws of Greece, having its registered office at 8 Othonos Street, Athens, Greece, acting for the purposes of this Agreement through its office at 83 Akti Miaouli & Flessa Street, 5th floor, 185 38 Piraeus, Greece or any successor appointed under clause 5 of the Agency and Trust Deed;

“Security Interest” means:

 

  (a)

a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;

 

  (b)

the rights of the claimant under an action in rem in which the vessel concerned has been arrested or a writ has been issued or similar step taken; and

 

  (c)

any arrangement entered into by a person (A) the effect of which is to place another person (B) in a position which is similar, in economic terms, to the position in which B would have been had he held a security interest over an asset of A,

but (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution;

 

13


“Security Parties” means together the Borrowers, the Corporate Guarantor and any other person (except a Creditor Party and the Approved Manager) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement, or in any similar capacity, executes a Finance Document and “Security Party” means any one of them;

“Security Period” means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies the Security Parties and the Lenders that:

 

  (a)

all amounts which have become due for payment by the Borrowers or any Security Party under the Finance Documents have been paid;

 

  (b)

no amount is owing or has accrued (without yet having become due for payment) under any Finance Document;

 

  (c)

no Borrower nor any Security Party has any future or contingent liability under Clause 20

(Fees and Expenses), 21 (Indemnities) or 22 (No Set-Off or Tax Deduction) below or any other provision of this Agreement or another Finance Document; and

 

  (d)

the Agent and the Security Agent do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of a Borrower or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document;

“Security Value” means, at any time, the amount in Dollars which, at that time, is the aggregate of (a) the Market Value of all the Ships subject to a Mortgage at the relevant time and (b) the net realisable value of any additional security then held by the Security Agent provided under Clause

15 (Security cover);

“Ships” means together Ship A and Ship B and in the singular means either one of them;

“Total Assets” means, as at the date of calculation or, as the case may be, for any accounting period, the total assets (based on book values) (which shall have the meaning given thereto undcr US GAAP but excluding the effect of the application of ASU 2016-02 “Leases (Topic 842)” effective for any financial years beginning after 15 December 2018) of the Corporate Guarantor as at that date or for that period as shown in the Latest Accounts.

“Total Liabilities” means, as at the date of calculation or, as the case may be, for any accounting period, the total liabilities (which shall have the meaning given thereto under US GAAP but excluding the effect of the application of ASU 2016-02 “Leases (Topic 842)” effective for any financial years beginning after 15 December 2018) of the Corporate Guarantor as at that date or for that period as shown in the Latest Accounts.

“Total Loss” means, in relation to a Ship:

 

  (a)

actual, constructive, compromised, agreed or arranged total loss of such Ship;

 

  (b)

any expropriation, confiscation, requisition or acquisition of such Ship, whether for full consideration, a consideration less than her proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority, excluding a requisition for hire for a fixed period not exceeding one year without any right to an extension;

 

  (c)

any condemnation of such Ship by any tribunal or by any person or person claiming to be a tribunal;

 

14


  (d)

in the case of any arrest, capture, seizure, confiscation or detention of such Ship (including any hijacking or theft), other than piracy, within 90 days and in the case of piracy, if the relevant underwriters confirm to the Agent in writing prior to the end of such 90-day period that such Ship is subject to an approved piracy insurance cover, the earlier of 270 days after the date on which the Ship is captured by pirates and the date on which the piracy insurance cover expires.

“Total Loss Date” means, in relation to a Ship:

 

  (a)

in the case of an actual loss of such Ship, the date on which it occurred or, if that is unknown, the date when such Ship was last heard of;

 

  (b)

in the case of a constructive, compromised, agreed or arranged total loss of such Ship, the earliest of:

 

  (i)

the date on which a notice of abandonment is given to the insurers; and

 

  (ii)

the date of any compromise, arrangement or agreement made by or on behalf of the relevant Owner, with such Ship’s insurers in which the insurers agree to treat the Ship as a total loss; and

 

  (c)

in the case of any other type of total loss, on the date (or the most likely date) on which

it appears to the Agent that the event constituting the total loss occurred;

“Transfer Certificate” has the meaning given in Clause 26.2 (Transfer by a Lender);

“Trust Property” has the meaning given in clause 3.1 of the Agency and Trust Deed;

“Unpaid Sum” means any sum due and payable but unpaid by a Security Party under the Finance Documents; and

“US GAAP” means the generally accepted accounting principles applied from time to time in the United States of America.

Words and expressions defined in Schedule 5 (ship and Third Party Manager Details) when used in this Agreement shall have the meanings given to them in Schedule 5 (Ship and Third Party Manager Details) as if the same were set out in full in this clause Error! Reference source not found. (Definitions)

 

1.2

Construction of certain terms. In this Agreement:

“approved” means, for the purposes of Clause 13 (Insurance), approved in writing by the Agent;

“asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;

“company” includes any partnership, joint venture and unincorporated association;

“consent” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation, permission, permit and legalisation;

“contingent liability” means a liability which is not certain to arise and/or the amount of which remains unascertained;

“document” includes a deed; also a letter, fax or telex;

“excess risks” means the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of a Ship in consequence of her insured value being less than the value at which that Ship is assessed for the purpose of such claims;

 

15


“expense” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other tax;

“indebtedness” means any obligation howsoever arising (whether present or future, actual or contingent, secured or unsecured as principal, surety or otherwise) for the payment or repayment of money;

“law” includes any form of delegated legislation, any order or decree, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;

“legal or administrative action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;

“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;

“material” means material in the sole opinion of the Security Agent and/or the Agent;

“months” shall be construed in accordance with Clause 1.3 (Meaning of “month”);

“obligatory insurances” means all insurances effected, or which a Borrower is obliged to effect in relation to its Ship under Clause 13 (Insurance) below or any other provision of this Agreement or another Finance Document;

“parent company” has the meaning given in Clause 1.4 (Meaning of “subsidiary’);

“person” includes any company, any state, political sub-division of a state and local or municipal authority, and any international organisation;

“policy”, in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;

“protection and indemnity risks” means the usual risks (including oil pollution and freight, demurrage and defence cover) covered by a protection and indemnity association managed in London which is a member of the International Group of P&I Clubs (or, if the International Group of P&I Clubs ceases to exist, any other leading protection and indemnity association or other leading provider of protection and indemnity insurance), including (without limitation) pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation therein of clause 1 (Interpretation) of the Institute Time Clauses (Hulls)(1/10/83) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision and including, without limitation, protection and indemnity war risks with a separate limit and in excess of the amount for war risks (hull);

“regulation” references to a “regulation” include any present or future regulation, rule, directive, requirement, request or guideline (whether or not having the force of law) of any Government Entity, central bank or any self-regulatory or other supra-national authority (including, without limitation, any regulation implementing or complying with (1) the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004, in the form existing on the date of this Agreement (“Basel II”), and/or (2) “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Basel III: A global regulatoryframeworkfor more resilient banks and banking systems”, published by the Basel Committee on Banking Supervision in December 2010, in the form existing on the date of this Agreement (“Basel III”), (3) any

 

16


amendment, replacement or refinement of Basel III (“Basel IV” and (4) any other law or regulation which, at any time and from time to time, implements and/or amends and/or supplements and/or re-enacts and/or supersedes, whether in whole or in part, Basel II and/or Basel III and/or Basel IV (including Directive 2013/36/EU on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms (“CRD IV”) and Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms (“CRR”)), and whether such implementation, application or compliance is by a Government Entity, a lender or any company affiliated to it);

“subsidiary” has the meaning given in Clause 1.4 (Meaning of “subsidiary”);

“successor” includes any person who is entitled (by assignment, novation, merger or otherwise) to any other person’s rights under this Agreement or any other Finance Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and in particular references to a successor include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation of it or any other person;

“tax” includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected penalty, interest or fine; and

“war risks” means the risks according to Institute War and Strike Clauses (Hull Time) (1/10/83) or (1/11/95), or equivalent conditions, including, but not limited to risk of mines, blocking and trapping, missing vessel, confiscation excess risks and the risk of war and terrorism excluded from protection and indemnity with a separate limit and all risks excluded from the standard form of English or other marine policy.

 

1.3

Meaning of “month”. A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:

 

  (a)

on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or

 

  (b)

on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,

and “month” and “monthly” shall be construed accordingly.

 

1.4

Meaning of “subsidiary”. A company (S) is a subsidiary of another company (P) if

a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P.

 

1.5

General Interpretation.

 

  (a)

In this Agreement:

 

  (i)

references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;

 

  (ii)

references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise; and

 

17


  (iii)

words denoting the singular number shall include the plural and vice versa.

 

  (b)

Clauses 1.1 (Definitions) to 1.4 (Meaning of “subsidiary’) and paragraph (a) of this Clause 1.5 (General Interpretation) apply unless the contrary intention appears; and

 

  (c)

references in Clause 1.1 (Interpretation) to a document being in the form of a particular Schedule include references to that form with any modifications to that form which the Agent approves or reasonably requires; and

 

  (d)

the clause headings shall not affect the interpretation of this Agreement.

 

2

LOAN FACILITY

 

2.1

Amount of facility. Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrowers a loan facility in an amount of up to the lesser of (i) $20,800,000 and (ii) the Cash Collateral as at the Drawdown Date plus 55% of the aggregate Market Value of the Ships to be determined no more than one month prior to the Drawdown Date in one advance.

 

2.2

Lenders’ participations in the Loan. Subject to the other provisions of this Agreement, each Lender shall participate in the Loan in the amounts set out in Schedule 1.

 

2.3

Purpose of Loan. Each Borrower undertakes with each Creditor Party to borrower the Loan only for the purpose stated in the preamble to this Agreement and in accordance with the terms of Clause 4.2 (Availability.).

 

2.4

Use of Proceeds.

 

  (a)

Without prejudice to the Borrowers’ obligations under Clause 13.9 (Payment of premiums), the Lenders shall have no responsibility for the Borrowers’ use of the proceeds of any part of the Loan.

 

  (b)

The Borrowers shall not, and shall procure that each Security Party and each other Group Member and any subsidiary of any of them shall not, permit or authorise any other person to, directly or indirectly, use, lend, make payments of, contribute or otherwise make available, all or any part of the proceeds of any part of the Loan or other transactions contemplated by this Agreement to fund or facilitate trade, business or other activities: (i) involving or for the benefit of any Restricted Person; or (ii) in any other manner that could result in a Borrower, any other Security Party or any Creditor Party being in breach of any Sanctions or becoming a Restricted Person.

 

2.5

Cancellation of Commitment. The Borrowers may, at any time request, in writing to the Agent by giving no less than 5 Business Days prior notice, the reduction of all or any part of the Total Commitments, whereupon such cancelled part shall cease to be available, and the Commitment of each Lender shall be reduced according to such cancellation, provided that such cancellation shall be irrevocable.

 

2.6

Borrowers’ rights and obligations

 

2.6.1

The obligations of each Borrower under this Agreement are joint and several and shall continue until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably and unconditionally paid or discharged in full, regardless of any intermediate payment or discharge in whole or in part. Each Borrower declares that it is and will remain, throughout the Security Period, a principal debtor for all amounts owing hereunder and under the other Finance Documents and that it shall be construed to be a surety for the obligations of any other Borrower hereunder.

 

18


2.6.2

The obligations of each Borrower shall not be impaired by (i) any obligation under this agreement being or becoming void, unenforceable or illegal as regards any other Borrower (ii) any amendment of any Finance Document (iii) any rescheduling, refinancing or similar arrangement of any kind with any other Borrower (iv) the release (in whole or in part) of any other Security Party from its obligations under, or the release of any Security Interest created by, any Finance Document.

 

2.6.3

If any payment by a Borrower or any discharge given by a Creditor Party (whether in respect of the obligations of either Borrower or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event then (i) the liability of each Borrower under the Finance Documents shall continue as if the payment, release, avoidance or reduction had not occurred and (ii) each Finance Party shall be entitled to recover the value or amount of that security or payment from each Borrower, as if the payment, release, avoidance or reduction had not occurred.

 

2.6.4

No Borrower shall, during the Security Period (i) claim any amount due to it from any other Borrower, or (ii) prove for any such amount in any liquidation, administration, arrangement or similar procedure or (iii) take or enforce any security from or against any other Borrower.

 

2.6.5

Each Borrower waives any right it may have of first requiring any Creditor Party to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Borrower under a Finance Document.

 

3

POSITION OF THE LENDERS ETC.

 

3.1

Interests of Lenders several. The rights of the Lenders under this Agreement are several; accordingly each Lender shall be entitled to sue for any amount which has become due and payable by either Borrower to it under this Agreement without joining any other Creditor Party as additional parties in the proceedings.

 

3.2

Proceedings requiring Majority Lenders’ consent. However, without the prior written consent of the Majority Lenders, no Lender may bring proceedings in respect of:

 

  (a)

any other liability or obligation of either Borrower or a Security Party under or connected with a Finance Document; or

 

  (b)

any misrepresentation or breach of warranty by either Borrower or a Security Party in or connected with a Finance Document.

 

3.3

Obligations of Lenders several. The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:

 

  (a)

the obligations of the other Lenders being increased; nor

 

  (b)

either Borrower, any Security Party or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document,

and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement.

 

3.4

Parties bound by certain actions of Agent. Every Lender, each Borrower and each Security Party shall be bound by any determination made, or action taken, by the Agent or the Security Agent under any provision of a Finance Document;

 

  (a)

any instruction or authorisation given by the Lenders to the Agent or the Security Agent under or in connection with any Finance Document;

 

  (b)

any action taken (or in good faith purportedly taken) by the Agent or the Security Agent in accordance with such an instruction or authorisation.

 

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3.5

Reliance on action of Agent. However, the Borrowers and each Security Party:

 

  (a)

shall be entitled to assume that the Lenders have duly given any instruction or authorisation which, under any provision of a Finance Document, is required in relation to any action which the Agent has taken or is about to take; and

 

  (b)

shall not be entitled to require any evidence that such an instruction or authorisation has been given.

 

3.6

Construction. In Clauses 3.4 (Parties bound by certain actions of Agent) and 3.5 (Reliance on action of Agent) references to action taken include (without limitation) the granting of any waiver or consent, an approval of any document and an agreement to any matter.

 

4

D R A W D O W N

 

4.1

Request for the Loan. Subject to the following conditions, the Borrowers may request the Loan to be made available by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (London time) 2 Business Days prior to the intended Drawdown Date.

 

4.2

Availability. The conditions referred to in Clause 4.1 (Request for the Loan) are that:

 

  (a)

the Drawdown Date is a Business Day during the Availability Period; and

 

  (b)

the amount of the aggregate of the Loan shall not exceed $20,800,000.

 

4.3

Notification to Lenders of receipt of a Drawdown Notice. The Agent shall promptly notify the Lenders that it has received a Drawdown Notice and shall inform each Lender of:

 

  (a)

the amount to be borrowed and the Drawdown Date;

 

  (b)

the amount of that Lender’s participation in the Loan; and

 

  (c)

the duration of the first Interest Period.

 

4.4

Drawdown Notice irrevocable. A Drawdown Notice must be signed by a director, officer or other authorised person of each Borrower and once served, such Drawdown Notice cannot be revoked without the prior written consent of the Agent, acting on the authority of the Majority Lenders.

 

4.5

Lenders to make available Contributions. Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date either, at its option, (i) make available to the Agent for the account of the Borrowers or (ii) make available directly to the Borrowers to the account or accounts which the Borrowers specify in the relevant Drawdown Notice, the amount due from that Lender on the Drawdown Date under Clause 4.3 (Notification to Lenders of receipt of a Drawdown Notice).

 

4.6

Disbursement of the Loan. Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause 4.5 (Lenders to make available Contributions); and that payment to the Borrowers shall be made:

 

  (a)

to the account or accounts which the Borrowers specify in the Drawdown Notice; and

 

  (b)

in the like funds as the Agent received the payments from the Lenders.

 

4.7

Disbursement of the Loan to third party. The payment by the Agent under Clause 4.6 (Disbursement of Loan) and a Lender under Clause 4.5 (Lenders to make available contributions) shall constitute the making of the Loan and the Borrowers shall thereupon become indebted as principal and direct obligor, to each Lender in an amount equal to that Lender’s Contribution.

 

20


4.8

Restricted Persons. The Borrowers undertake that they shall not, and shall procure that no Security Party, an Approved Manager or other member of the Group or any subsidiary of any of them shall, permit or authorise any other person to, directly or indirectly, use, lend, make payments of, contribute, effect payment by use of accounts held with the Account Bank or otherwise make available, all or any part of the proceeds of the Loan or other transactions contemplated by this Agreement to fund or facilitate trade, business or other activities: (i) involving or for the benefit of any Restricted Person; or (ii) in any other manner that could result in a Borrower, any other Security Party, an Approved Manager or a Creditor Party being in breach of any Sanctions or becoming a Restricted Person.

 

5

INTEREST

 

5.1

Payment of normal interest. Subject to the provisions of this Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrowers on the last day of that Interest Period.

 

5.2

Normal rate of interest. Subject to the provisions of this Agreement, the rate of interest on the Loan in respect of an Interest Period shall be the aggregate of the Margin and LIBOR for that Interest Period.

 

5.3

Payment of accrued interest. In the case of an Interest Period longer than 3 months, accrued interest shall be paid every 3 months during that Interest Period and on the last day of that Interest Period.

 

5.4

Notification of Interest Periods and rates of normal interest. The Agent shall notify the Borrowers and each Lender of:

 

  (a)

each rate of interest; and

 

  (b)

the duration of each Interest Period;

as soon as reasonably practicable after each is determined.

 

5.5

Market disruption — Non Availability

 

  (a)

Market Disruption Event: If and whenever, at any time prior to the commencement of any Interest Period, a Lender (in its discretion) shall have determined (which determination shall be conclusive in the absence of manifest error) that a Market Disruption Event has occurred in relation to the Loan for any such Interest Period, then that Lender (the “Affected Lender”) shall forthwith give notice thereof (a “Determination Notice”) to the Borrowers and the Agent and the of interest on its Contribution (or the relevant part thereof) for that Interest Period shall be the percentage rate per annum which is the sum of:

 

  (i)

the Margin; and

 

  (ii)

the rate which expresses as a percentage rate per annum the cost to the Affected Lender of funding its Contribution (or the relevant part thereof) from whatever source it may select.

 

  (b)

Suspension of drawdown: If a Determination Notice is given before the Loan (or a part thereof) is advanced, the Affected Lender’s obligation to make its Contribution (or a part thereof) available shall be suspended while the circumstances referred to in the Determination Notice continue.

 

21


  (c)

Meaning of “Market Disruption Event”: In this Agreement “Market Disruption Event” means:

 

  (i)

at or about noon on the Quotation Date for the relevant Interest Period LIBOR is not is available; and/or

 

  (ii)

before close of business on the Quotation Date for the relevant Interest Period, a Lender determines (in its sole discretion) that the cost to it of obtaining matching deposits in the London Interbank Market to fund its Contribution (or the relevant part thereof) for such Interest Period would be in excess of LIBOR for that Interest Period; and

 

  (iii)

before close of business on the Quotation Date for the relevant Interest Period, deposits in Dollars are not available to the Affected Lender in the London Interbank Market in the ordinary course of business in sufficient amounts to fund the Loan (or the relevant part thereof) for that Interest Period.

 

5.6

Alternative basis of interest or funding

 

  (a)

If a Market Disruption Event occurs and the Affected Lender or the Borrowers so requires, the Affected Lender, the Agent and the Borrowers shall enter into negotiations (for a period of not more than fifteen (15) days (the “Negotiation Period”)) after the giving of the relevant Determination Notice with a view to agreeing a substitute basis for determining the rate of interest.

 

  (b)

Any alternative basis agreed pursuant to paragraph (a) above shall be binding on the Lenders and all Security Parties

 

5.7

Alternative rate of interest in absence of agreement. If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the cost of funding of the Lenders or (as the case may be) the Affected Lender in Dollars or in any available currency of their or its Contribution plus the Margin; and the procedure provided for by this Clause 5.7 shall be repeated if the relevant circumstances are continuing at the end of the interest period so set by the Agent.

 

5.8

Notice of prepayment. If the Borrowers do not agree with an interest rate set by the Agent under Clause 5.7 (Alternative rate of interest in absence of agreement), the Borrowers may give the Agent not less than 5 Business Days’ notice of their intention to prepay the Loan at the end of the interest period set by the Agent.

 

5.9

Prepayment; termination of Commitments. A notice under Clause 5.8 (Notice of Prepayment) shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers’ notice of intended prepayment; and:

 

  (a)

on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and

 

  (b)

on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the Margin and, if the prepayment or repayment is not made on the last day of the interest period set by the Agent, any sums payable in respect of Breakage Costs.

 

5.10

Application of prepayment. The provisions of Clause 8 (Repayment and Prepayment) shall apply in relation to the prepayment.

 

22


6

INTEREST PERIODS

 

6.1

Commencement of Interest Periods. The first Interest Period shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.

 

6.2

Duration of normal Interest Periods. Subject to Clauses 6.3 (Duration of Interest Periods for repayment instalments) and 6.4 (Non-availability of matching deposits for Interest Period selected), each Interest Period shall be:

 

  (a)

3, 6, 9 or 12 months as notified by the Borrowers to the Agent (subject to availability in the London Interbank Market (as determined by the Agent)) not later than 11.00 a.m. (London time) 2 Business Days before the commencement of the Interest Period; or

 

  (b)

3 months, if the Borrowers fail to notify the Agent by the time specified in paragraph (a) above; or

 

  (c)

such other period as the Agent, acting on the instructions of the Lenders, may, subject to availability, agree with the Borrowers,

provided that the selection of Interest Periods under this Clause 6.2 (Duration of normal Interest Periods) shall be made in such manner as to ensure that a separate Interest Period shall be selected in respect of an amount of the Loan equal to the repayment instalment which is then due to be repaid under Clause 8.1 (Amount of repayment instalments) to expire on the Repayment Date applicable to such repayment instalment.

 

6.3

Duration of Interest Periods for repayment instalments. In respect of an amount due to be repaid under Clause 8 (Repayment and Prepayment) on a particular Repayment Date, an Interest Period in relation to the amount to be repaid in respect of the Loan shall end on that Repayment Date.

 

6.4

Non-availability of matching deposits for Interest Period selected. If, after the Borrowers have selected an Interest Period longer than 3 months, any Lender notifies the Agent by 11.00 a.m. (London time) on the second Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the London Interbank Market when the Interest Period commences, the Interest Period shall be of 3 months.

 

6.5

Interest Rate Hedging.

A Borrower may not hedge interest payable under this Agreement.

 

7

DEFAULT INTEREST

 

7.1

Payment of default interest on overdue amounts. The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 (Default interest) on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Agent or the other designated payee does not receive on or before the relevant date, that is:

 

  (a)

the date on which the Finance Documents provide that such amount is due for payment; or

 

  (b)

if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or

 

  (c)

if such amount has become immediately due and payable under Clause 19.4 (Acceleration of Loan), the date on which it became immediately due and payablc.

 

7.2

Default rate of interest. Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be (i) two point five per cent. (2.5%) above the rate set out

 

23


at paragraph (b) of Clause 7.3 (Calculation of default rate of interest) and (ii) in the event that Eurobank Cyprus Ltd ever becomes a Lender and in relation to its Contribution only, two per cent. (2%) above the rate set out at paragraph (b) of Clause 7.3 (Calculation of default rate of interest) and for the remaining of any Contributions default interest under (i) above will apply.

 

7.3

Calculation of default rate of interest. The rate referred to in Clause 7.2 (Default rate of interest) is the Margin plus, in respect of successive periods of any three (3) months or longer duration which the Agent may select from time to time:

 

  (a)

LIBOR; or

 

  (b)

if the Agent determines that Dollar deposits for any such period are not being made available to a Lender or (as the case may be) Lenders by leading banks in the London Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Agent from such other sources as the Agent may from time to time determine;

 

7.4

Notification of interest periods and default rates. The Agent shall promptly notify the Lenders and the Borrowers of each interest rate determined by the Agent under Clause 7.3 (Calculation of default rate of interest) and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that the Borrowers are liable to pay such interest only with effect from the date of the Agent’s notification.

 

7.5

Payment of accrued default interest. Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Security Agent for the account of the Creditor Party to which the overdue amount is due.

 

7.6

Compounding of default interest. Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded.

 

8

REPAYMENT AND PREPAYMENT

 

8.1

Amount of repayment instalments. The Borrowers shall repay the Loan by (i) sixteen (16) consecutive quarterly instalments of $800,000 each followed by (ii) a Balloon Instalment of $8,000,000 payable together with the last instalment Provided that if the amount of the Loan is less than $20,800,000, the amount of each repayment instalment including the Balloon Instalment shall be reduced pro rata by an amount equal to such undrawn amount.

 

8.2

Repayment Dates. The first instalment shall be repaid on the date falling three (3) months after the Drawdown Date and the last instalment, along with the Balloon Instalment, shall be repaid on the Final Maturity Date.

 

8.3

Final Maturity Date. On the Final Maturity Date, the Borrowers shall additionally pay to the Security Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.

 

8.4

Voluntary prepayment. Subject to the following conditions, the Borrowers may prepay the whole or any part of the Loan on the last day of an Interest Period and may prepay the whole Loan at any time if any of the situations described in Clauses 21.1(f) (Indemnities regarding borrowing and repayment of Loan), 22.2 (Grossing-up for taxes) or 24.1 (Increased Costs) arise, without prejudice to the Borrowers’ obligations under those Clauses.

 

8.5

Conditions for voluntary prepayment. The conditions referred to in Clause 8.4 (Voluntary prepayment) are that:

 

  (a)

a partial prepayment shall be $500,000 or a higher multiple thereof;

 

24


  (b)

the Agent has received from the Borrowers at least 5 Business Days’ prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made;

 

  (c)

the Borrowers have provided evidence satisfactory to the Agent that any consent required by either Borrowers or any Security Party in connection with the prepayment has been obtained and remains in force, and that any requirement relevant to this Agreement which affects either Borrower or any Security Party has been complied with; and

 

  (d)

each partial prepayment shall be applied against the Loan in reducing the repayment instalments under Clause 8.1 (Amount of repayment instalments) in order of maturity.

 

8.6

Effect of notice of prepayment. A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and the amount specified in the prepayment notice shall become due and payable by the Borrowers on the date for prepayment specified in the prepayment notice.

 

8.7

Notification of notice of prepayment. The Agent shall notify the Lenders promptly upon receiving a prepayment notice, and shall provide any Lender which so requests with a copy of any document delivered by the Borrowers under Clause 8.5(c) (Conditions for voluntary prepayment).

 

8.8

Mandatory prepayment. Upon the sale of a Ship, which sale shall be subject to prior notification to the Agent and provided that no Event of Default has occurred, or Total Loss of a Ship, the Borrowers shall be obliged to prepay the Loan by the Relevant Amount:

 

  (a)

in the case of a sale, on or before the date on which the sale is completed by delivery of such Ship to the buyer; or

 

  (b)

in the case of a Total Loss, on the earlier of the date falling 180 days after the relevant Total Loss Date and the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss,

which prepayment shall be applied towards prepayment of the Loan in pro rata reduction of the remaining repayment instalments under Clause 8.1 (Amount of repayment instalments) including the Balloon Instalment,

wher e

“Relevant Amount” means an amount which is the higher of (a) the amount required so that the Asset Cover Ratio immediately following such prepayment is equal to the Asset Cover Ratio before such sale or Total Loss and (b) such amount which will ensure that the Security Value, immediately following such prepayment, is no less than the Required Security Amount at that time.

 

8.9

Mandatory prepayment — Illegality. Upon the circumstances referred to in Clause 23 (Illegality etc.) arising, the Borrowers shall be obliged to prepay the whole Loan in accordance with that Clause, and any undrawn part of the Total Commitment shall be cancelled.

 

8.10

Amounts payable on prepayment. A prepayment shall be made together with accrued interest (and any other amount payable under Clause 21 (Indemnities) below or otherwise) in respect of the Loan and, if the prepayment is not made on the last day of an Interest Period, together with any Breakage Costs.

 

8.11

No reborrowing. No amount prepaid or repaid may be reborrowed.

 

25


9

CONDITIONS PRECEDENT

 

9.1

Documents, fees and no default. Each Lender’s obligation to make the Loan available to the Borrowers is subject to the following conditions precedent:

 

  (a)

that, on or before the service of a Drawdown Notice, the Agent receives the documents described in Part A of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;

 

  (b)

that, on or before drawdown of the Loan but prior to advancing it, the Agent receives the documents described in Part B of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;

 

  (c)

that, on or before the service of a Drawdown Notice, the Agent has received payment of the fees and expenses payable pursuant to Clause 20.1 (Arrangement Fee);

 

  (d)

that both at the date of each Drawdown Notice and at the Drawdown Date:

 

  (i)

no Event of Default or Potential Event of Default has occurred and is continuing or would result from the borrowing of the Loan;

 

  (ii)

the representations and warranties in Clause 10 (Representation and Warranties) and those of a Borrower or any Security Party which are set out in the other Finance Documents would be true, and not misleading if repeated on each of those dates with reference to the circumstances then existing;

 

  (iii)

none of the circumstances contemplated by Clauses 5.5 (Market disruption Non Availability) or 19.1(w) (x) (Events of Default) has occurred and is continuing;

 

  (e)

that, if the ratio set out in Clause 15.1 (Provision of additional security over; prepayment of Loan) were applied immediately following the making of the Loan, the Borrowers would not be obliged to provide additional security or prepay part of the Loan under that Clause; and

 

  (f)

that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may with the authorisation of the Majority Lenders, request by notice to the Borrowers prior to the Drawdown Date.

 

9.2

Waiver of conditions precedent. If the Majority Lenders, at their discretion, permit the Loan to be borrowed before certain of the conditions referred to in Clause 9.1 (Documents, fees and no default) are satisfied, the Borrowers shall ensure that those conditions are satisfied within 10 Business days after the Drawdown Date (or such longer period as the Agent may specify).

 

9.3

Conditions Subsequent. The Borrowers undertake to deliver or to cause to be delivered to the Agent on, or as soon as practicable after, each Drawdown Date the additional documents and other evidence listed in Part C (Conditions Subsequent) of Schedule 3.

 

10

REPRESENTATIONS AND WARRANTIES

 

10.1

General. Each Borrower represents and warrants to each Creditor Party as follows.

 

10.2

Status. Each Borrower is duly incorporated and validly existing and in good standing under the laws of Marshall Islands.

 

10.3

Share capital and ownership. Each Borrower has an authorised share capital of 500 hundred registered and/or bearer shares with par value U.S.$1.00 each, all of which shares have been issued in registered form and are fully paid.

 

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10.4

Corporate power. Each Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:

 

  (a)

to register the Ship in its name under the Approved Flag;

 

  (b)

to execute the Finance Documents to which such Borrower is a party;

 

  (c)

to borrow under this Agreement; and

 

  (d)

to make all the payments contemplated by, and to comply with, those Finance Documents to which that Borrower is a party.

 

10.5

Consents in force. All the consents referred to in Clause 10.4 (Corporate Power) remain in force and nothing has occurred which makes any of them liable to revocation

 

10.6

Ownership of Borrowers and Corporate Guarantor. All the shares in the Borrowers are beneficially owned by the persons disclosed to the Lenders prior to the date of this Agreement.

 

10.7

Legal validity; effective Security Interests. The Finance Documents to which each Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):

 

  (a)

constitute the relevant Borrower’s legal, valid and binding obligations enforceable against that Borrower in accordance with their respective terms and admissible in evidence; and

 

  (b)

create legal, valid and binding Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,

subject to any relevant insolvency laws affecting creditors’ rights generally.

 

10.8

No third party Security Interests. Without limiting the generality of Clause 10.7 (Legal validity; effective Security Interests), at the time of the execution and delivery of each Finance Document:

 

  (a)

each Borrower will have the right to create all the Security Interests which that Finance Document purports to create; and

 

  (b)

no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.

 

10.9

No conflicts. The execution by the Borrowers of each Finance Document to which each is a party, and the borrowing by the Borrowers of the Loan and their compliance with each Finance Document to which each is a party will not involve or lead to a contravention of:

 

  (a)

any law or regulation; or

 

  (b)

the constitutional documents of the Borrowers; or

 

  (c)

any contractual or other obligation or restriction which is binding on the Borrowers or any of their assets.

 

10.10

No withholding taxes.

 

  (a)

All payments which the Borrowers are liable to make under the Finance Documents may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.

 

  (b)

No taxes anywhere are imposed whatsoever by withholding or deduction or otherwise on any payment to be made by any Security Party under the Finance Documents to which such Security Party is or is to be a party or are imposed on or by virtue of the execution or delivery by the Security Parties of the Finance Documents or any other document or instrument to be executed or delivered under any of the Finance Documents.

 

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10.11

No default. No Event of Default or Potential Event of Default has occurred and is continuing or might reasonably be expected to result from the making of the Loan or any part thereof available or the entry into, the performance of, or any transaction contemplated by, any Finance Document. No other event or circumstance is outstanding which constitutes a default or a termination event (however described) under any other agreement or instrument which is binding on a Security Party, or to which its assets are subject, which would be expected to have a Material Adverse Effect (i) on the business, assets or financial condition of any Security Party or (ii) on the security constituted by any of the Finance Documents or the enforceability of that security in accordance with its terms..

 

10.12

Information. All information which has been provided in writing by or on behalf of the Borrowers or any Security Party or an Approved Manager to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause 11.7 (Information provided to be accurate); all audited and unaudited accounts which have been so provided satisfied the requirements of Clause 11.7 (Provision offinancial statements); and there has been no material adverse change in the financial position or state of affairs of the Borrowers and/or the Corporate Guarantor and/or the Approved Managers from that disclosed in the latest of those accounts.

 

10.13

No litigation. No legal or administrative action involving either Borrower has been commenced or taken or, to a Borrower’s knowledge, is likely to be commenced or taken which, in either case, would be likely to have a Material Adverse Effect.

 

10.14

Compliance with certain undertakings. At the date of this Agreement, each Borrower is in compliance with Clauses 11.2 (Title: Negative Pledge), 11.3 (No disposal of assets), 11.4 (No other liabilities or obligations to be incurred), 11.10 (Consents), 11.13 (Principal place of business), 12.5 (Ownership) and 12.6 (Sanctions).

 

10.15

Taxes paid. Each Borrower has paid all taxes applicable to, or imposed on or in relation to such Borrower, its business or its Ship.

 

10.16

Ranking of Borrowers’ obligations. Each Borrower’s obligations to make payments under this Agreement rank ahead of any obligation owed by such Borrower to any other person, except as the same may be preferred by any applicable law or regulation.

 

10.17

Insolvency etc.

 

  (a)

No bankruptcy, insolvency, administration or similar proceedings have been commenced against either Borrower with a view to winding up such Borrower.

 

  (b)

None of the Security Parties is unable or has admitted inability to pay its debts as they fall due; has suspended making payments on any of its debts or has announced an intention to do so; is or has become insolvent; or has suffered the declaration of a moratorium in respect of any of its Financial Indebtedness.

 

10.18

Anti-bribery. None of the improper or illegal acts referred to in Clause 12.7 (Anti-bribery) have occurred prior to the date of execution of this Agreement

 

10.19

ISM Code and ISPS Code compliance. The Borrowers and the Approved Managers have obtained all necessary ISM Code Documentation and ISPS Code Documentation in connection with each Ship and are in full compliance with the ISM Code and the ISPS Code.

 

10.20

Restricted Persons, unlawful activity.

 

  (a)

None of the shares in the Borrowers or in the Ships are or will be at any time during the Security Period legally and beneficially owned and controlled by a Restricted Person;

 

28


  (b)

no Restricted Person has or will have at any time during the Security Period any legal or beneficial interest of any nature whatsoever in any of the shares of any of the Security Parties (other than the Corporate Guarantor) or an Approved Manager or to the best of the Borrowers’ knowledge and belief, in any of the shares of the Corporate Guarantor;

 

  (c)

to the best of the Borrowers’ knowledge and belief, no title in any property or other assets subject to a Security Interest created by a Finance Document has been obtained in breach of any existing applicable law, statute, rule or regulation.

 

10.21

Choice of law. The choice of English law to govern the Finance Documents (other than the choice of (i) the law of the Approved Flag State to govern the Mortgage and (ii) the lex loci to govern the Accounts Pledge) and the submissions by the Security Parties to the jurisdiction of the English courts and the obligations of such Security Parties associated therewith, are valid and binding other than as otherwise provided in any legal opinions delivered to the Agent under Clause 9 (Conditions Precedent).

 

10.22

No filings required. Except for the registration of each Mortgage in the relevant register under the laws of the Approved Flag State, it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of any of the Finance Documents that they or any other instrument be notarised, filed, recorded, registered or enrolled in any court, public office or elsewhere in any Pertinent Jurisdiction or that any stamp, registration or similar tax or charge be paid in any Pertinent Jurisdiction on or in relation to any of the Finance Documents and each of the Finance Documents is in proper form for its enforcement in the courts of each Pertinent Jurisdiction.

 

10.23

Pad passu. The obligations of the Borrowers under this Agreement and the obligations of the Corporate Guarantor under the Corporate Guarantee are direct, general and unconditional obligations of the Borrowers and the Corporate Guarantor respectively and rank at least pari passu with all other present and future unsecured and unsubordinated indebtedness of the Borrowers and the Corporate Guarantor except for obligations which are mandatorily preferred by operation of law and not by contract.

 

10.24

Accounting reference date. The Borrowers’ and the Corporate Guarantor’s accounting reference date is 31 December.

 

10.25

Environmental Matters. Except as may already have been disclosed by the Borrowers in writing to, and acknowledged and accepted in writing by, the Lenders:

 

  (a)

the Borrowers and, to the best of the Borrowers’ knowledge and belief (having made due enquiry), their Environmental Affiliates have complied with the provisions of all Environmental Laws;

 

  (b)

the Borrowers and, to the best of the Borrowers’ knowledge and belief (having made due enquiry), their Environmental Affiliates have obtained all Environmental Approvals and are in compliance with all such Environmental Approvals;

 

  (c)

no Environmental Claim has been made or threatened or pending against either Borrower or, to the best of the Borrowers’ knowledge and belief (having made due enquiry), any of their Environmental Affiliates; and

 

  (d)

there has been no Environmental Incident;

 

10.26

Adverse consequences. The jurisdiction of incorporation of each Borrower will not in any way adversely affect the Lenders or their rights under the Finance Documents.

 

10.27

Immunity. No Security Party nor any of their assets is entitled to immunity on the grounds of sovereignty or otherwise from any legal or administrative proceedings whatsoever.

 

29


10.28

Legal compliance. No Security Party has in any way contravened any applicable law, statute, rule or regulation (including, but not limited to, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, the Foreign Corrupt Practices Act of 1977 of the USA and all such as relate to Money Laundering, terrorism and/or bribery).

 

10.29

Money laundering. In relation to the borrowing by the Borrowers of the Loan, the performance and discharge of their obligations and liabilities under this Agreement or any of the Finance Documents and the transactions and other arrangements effected or contemplated by this Agreement or any of the Finance Documents to which either Borrower is a party, each Borrower is acting for its own account and that the foregoing will not involve or lead to a contravention of any law, official requirement or other regulatory measure or procedure which has been implemented to combat Money Laundering.

 

10.30

Sanctions. No Security Party, nor any member of the Group nor any director, officer, agent, employee of any Security Party or any member of the Group or any person acting on behalf of any Security Party or a member of the Group, is a Restricted Person nor acts directly or indirectly on behalf of a Restricted Person.

 

10.31

Centre of main interests and establishments. For the purposes of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the “Regulation”), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Greece and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.

 

10.32

Labour laws. Each Borrower is in compliance in all material respects with any law or regulation applicable to it and pertaining to the labour and employment conditions, the occupational health and safety and the public health, safety and security and implement the necessary measures and carry out any necessary and designated action for the effective dealing with and remedy of the issues which, in the course of ordinary audits, are indicated to each Borrower either from the competent authorities of its jurisdiction of incorporation or from advisors specialised in this field having the required expertise.

 

10.33

Personal data. Each Borrower is in compliance in all material respects with any law or regulation applicable to it and pertaining on the protection of the individual from the processing of personal data and no claim, notice or other communication is received by it in respect of any actual or alleged breach of, or liability under, any such law or regulation which have or are reasonably likely to have a Material Adverse Effect.

 

10.34

Repetition of representations. The representations and warranties set out in this Clause 10 (Representations and Warranties) are complete, true, accurate and not misleading (whether by omission of any material fact or consideration or otherwise) and the same, including this Clause 10.34 (Repetition of representations), shall be deemed to be repeated on the date of a Drawdown Notice and on the Drawdown Date.

 

11

GENERAL UNDERTAKINGS

General. Each Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 (General Undertakings) at all times during the Security Period except as the Agent may, with the authorisation of the Majority Lenders, otherwise permit in writing such permission not to be unreasonably withheld.

 

11.2

Title; negative pledge. Each Borrower will:

 

  (a)

hold the legal title to, and own the entire beneficial interest in its Ship and its Insurances and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents; and

 

30


  (b)

not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future.

 

11.3

No disposal of assets. No Borrower will transfer, lease or otherwise dispose of:

 

  (a)

all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or

 

  (b)

any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation.

 

11.4

No other liabilities or obligations to be incurred. No Borrower will incur any liability or obligation except liabilities and obligations under the Finance Documents to which it is a party and liabilities or obligations reasonably incurred in the ordinary course of operating and chartering its Ship.

 

11.5

Subordination. Each Borrower shall ensure that all indebtedness of such Borrower to any of its Related Persons is fully subordinated, and to subordinate any indebtedness issued to it by any of its Related Persons, all in a form acceptable to the Lenders.

 

11.6

Information provided to be accurate. All financial and other information which is provided in writing by or on behalf of the Borrowers under or in connection with any Finance Document will be true and not misleading and will not omit any material fact or consideration.

 

11.7

Provision of financial statements. The Borrowers will, and shall procure that the Corporate Guarantor will, send to the Agent, commencing with the financial year ending 31 December 2020, as soon as possible, but in no event later than 180 days after the end of each of its financial year:

 

  11.7.1

the annual audited consolidated financial statements of the Corporate Guarantor for that financial year; and

 

  11.7.2

as soon as possible, but in no event later than 90 days after the end of each financial half-year (commencing with the financial half-year ending 30 June 2020) of the Corporate Guarantors, the consolidated management-prepared accounts of the Corporate Guarantor for that financial half-year, duly certified as to their correctness by the chief financial officer of the Corporate Guarantor;

 

  11.7.3

promptly after each request by the Agent, such further financial information about the Borrower, the Corporate Guarantor, the Group and/or the Ships including, but not limited to, charter arrangements, Financial Indebtedness, financial condition, operating expenses, commitments and loan repayment profiles, as the Agent may request.

 

11.8

Form of financial statements. All financial statements (audited and unaudited) delivered under Clause 11.7 (Provision offinancial statements) will:

 

  (a)

be prepared in accordance with all applicable laws and generally US GAAP (or other accounting standards acceptable to the Agent) consistently applied;

 

  (b)

give a true and fair view of the state of affairs of the Borrowers and the Corporate Guarantor at the date of those financial statements and of their profit for the period to which those financial statements relate; and

 

  (c)

fully disclose or provide for all significant liabilities of the Borrowers and the Corporate Guarantor.

 

31


11.9

Creditor notices. Following the written request of the Agent, the Borrowers will send to the Agent, at the same time as they are despatched, copies of all communications which are despatched to the Borrowers’ creditors or any class of them.

 

11.10

Consents. The Borrowers will maintain in force and promptly obtain or renew, and will promptly send copies to the Agent of, all consents required:

 

  (a)

for the Borrowers to perform their obligations under any Finance Document to which each is a party;

 

  (b)

for the validity or enforceability of any Finance Document to which each is a party;

 

  (c)

for each Borrower to continue to own and operate its Ship,

and the Borrowers will comply with the terms of all such consents.

 

11.11

Maintenance of Security Interests. Each Borrower will:

 

  (a)

at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and

 

  (b)

without limiting the generality of paragraph (a) above, at its own cost, promptly register, file, record or enrol any Finance Document 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 (including any duties or taxes payable by any of the Creditor Parties but excluding any FATCA Deduction), give any notice or take any other step which, in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.

 

11.12

Notification of litigation. Each Borrower will provide the Agent with details of any legal or administrative action involving a Borrower, any Security Party, the Approved Managers or a Ship, its Earnings or Insurances as soon as such action is instituted or it becomes apparent to a Borrower 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 any Finance Document.

 

11.13

Principal place of business. Each Borrower will maintain its place of business, and keep its corporate documents and records, at the address stated at the commencement of this Agreement (though it may change its place of business with the prior approval of the Agent), and no Borrower will establish, or do anything as a result of which it would be deemed to have, a place of business in either the United Kingdom or the United States of America.

 

11.14

Confirmation of no default. The Borrowers will, within 5 Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by a director of each Borrower and which:

 

  (a)

states that no Event of Default has occurred and is continuing; or

 

  (b)

states that no Event of Default has occurred and is continuing, except for a specified event or matter, of which all material details are given.

 

11.15

Notification of default. The Borrowers will notify the Agent as soon as any of them become aware of:

 

  (a)

the occurrence of an Event of Default or a Potential Event of Default which is continuing; or

 

  (b)

any matter which indicates that an Event of Default or a Potential Event of Default may have occurred and is continuing,

and will thereafter keep the Agent fully up-to-date with all developments.

 

32


11.16

Provision of further information. The Borrowers will, and shall procure that the Corporate Guarantor and the Approved Managers will, as soon as practicable after receiving a request from the Agent, provide the Agent with any additional financial or other information relating:

 

  (a)

to the Borrowers, the Ships, the Insurances or the Earnings, the Corporate Guarantor, the Approved Managers or any member of the Group;

 

  (b)

the financial condition of any of the Borrowers and the Corporate Guarantor;

 

  (c)

to any other matter relevant to, or to any provision of, a Finance Document which may be requested by the Lenders at any time; and

 

  (d)

all other documentation and information as any Creditor Party may reasonably request,

and will keep the Agent, and shall procure that the Corporate Guarantor keeps the Agent, advised, without the need for any request therefor, of any major financial developments relating to any member of the Group, including, but not limited to, any sale or purchase of vessels, the incurrence of any new Financial Indebtedness, any restructuring or rescheduling of any Financial Indebtedness and the entry into any long term employment of any vessel owned by such member.

 

11.17

Provision of copies and translation of documents. The Borrowers will supply the Agent (if it so requires) with a sufficient number of copies of the documents referred to above to provide one copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrowers will provide a certified English translation prepared by a translator approved by the Agent.

 

11.18

Unencumbered Liquidity. The Borrowers shall ensure that there shall be maintained at all times in an account or accounts with the Account Bank (including but not limited to any amount standing to the credit of the Retention Account pursuant to Clause 11.19) in the names of the Borrowers and/or the Corporate Guarantor and/or any other entity acceptable to the Lenders, free of any Security Interest (other than any created by the Finance Documents) an average quarterly aggregate amount of no less than $800,000 multiplied by the number of Ships which is at any relevant time subject to a Mortgage.

 

11.19

Cash Collateral. The Borrowers shall ensure that there shall be maintained at all times in the Retention Account no less than $800,000, provided that the Borrowers may, provided that no Event of Default has occurred which is continuing, apply all or part of such amount in or towards payment of a Loan repayment instalment under Clause 8 (Repayment and Prepayment).

 

11.20

Know your Customer. The Borrowers will provide, and will procure that the Corporate Guarantor and any other member of the Group which maintains an account with the Account Bank will, prior to the Drawdown Date to occur, provide all information and documentation as the Agent may in its sole discretion require in order to satisfy its “Know Your Customer” procedures.

 

11.21

Restricted Persons. Each Borrower shall not, and each Borrower shall procure that neither the Corporate Guarantor nor any shipowning company whose ships operate under the management of the Approved Manager (other than an Approved Manager which is not affiliated to the Corporate Guarantor) will, have any course of dealings, directly or indirectly, with any Restricted Person.

 

11.22

Change in constitutional documents. Each Borrower shall not, and each Borrower shall procure that the Corporate Guarantor will not, amend or vary its constitutional documents in a way which is likely to have Material Adverse Effect.

 

11.23

Use of proceeds. The Borrowers shall use the Loan and/or any part thereof exclusively for the purposes specified in Clause 2.3 (Purpose of Loan).

 

33


11.24

Labour laws. Each Borrower shall comply with the applicable from time to time legislation which relates to the labor and employment conditions, the occupational health and safety and the public health, safety and security, in each case, where failure to do so has or is reasonably likely to have a Material Adverse Effect. Each Borrower shall ensure that no claim, notice or other communication is received by it in respect of any actual or alleged breach of, or liability under, any such law or regulation where any such breach or liability has or is reasonably likely to have a Material Adverse Effect. The Borrowers shall promptly upon becoming aware of the same, inform the Agent in writing of any claim against a Borrower which is current, pending or threatened or any communication, notice or the imposition of any fine against a Borrower in respect of any actual or alleged breach of, or liability under, any such law or regulation. The Borrowers must deliver to the Agent, as soon as requested, all the documents and details deemed necessary by the latter, in order to ascertain that each Borrower complies with its obligations as stated in this clause. Similarly to the above, each Borrower is obliged to accept whenever deemed necessary (in the reasonable opinion of the Agent), any inspection carried out by the Agent’s directors, officers or employees or by third parties having the desired and necessary expertise and provide to the aforementioned persons every required assistance for the purposes of this clause. The relevant cost shall be borne by the Borrowers. For any action taken by the Agent under this clause, the Agent may be entitled but not obliged to request the prior written consent of the Majority Lenders.

 

11.25

Personal data. Each Borrower shall comply with any law or regulation applicable to it and pertaining on the protection of the individual from the processing of personal data where failure to do so has or is reasonably likely to have a Material Adverse Effect. Each Borrower shall ensure that no claim, notice or other communication is received by it in respect of any actual or alleged breach of, or liability under, any such law or regulation where ally such breach or liability has or is reasonably likely to have a Material Adverse Effect. Each Borrower shall promptly upon becoming aware of the same, inform the Agent in writing of any claim against a Borrower which is current, pending or threatened or any communication, notice or the imposition of any fine against a Borrower in respect of any actual or alleged breach of, or liability under, any such law or regulation.

 

11.26

Additional Covenants. The Borrowers shall procure that, if the Corporate Guarantor is required by any other contract to which either of them is a party to comply with (i) any financial covenants or (ii) any covenants which are equivalent or similar to the ones set out in this Clause 11 or Clause 11 of the Corporate Guarantee but which, in either case, impose greater obligations, the Corporate Guarantor shall comply with those covenants as amended and/or waived from time to time as if the same were set out (up-dated mutatis mutandis) in full in this Clause 11 and Clause 11 of the Corporate Guarantee respectively.

12    CORPORATE UNDERTAKINGS

 

12.1

General. The Borrowers also undertake with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent, with the authorisation of the Majority Lenders, may otherwise permit in writing such permission not to be unreasonably withheld.

 

12.2

Maintenance of status. Each Borrower will maintain its separate corporate existence and remain in good standing under the laws of Marshall Islands.

 

12.3

Negative undertakings. Neither Borrower will:

 

  (a)

carry on any business other than the ownership, chartering and operation of its Ship; or

 

  (b)

, if there has occurred an Event of Default which is continuing, or an Event of Default would thereby be caused thereby to occur, pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital; or

 

  (c)

provide any form of credit or financial assistance to any person or company; or

 

34


  (d)

open or maintain any account with any bank or financial institution except accounts with a bank or financial institution already opened or maintained or accounts approved by the Agent for the purposes of the Finance Documents; or

 

  (e)

issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital; or

 

  (0

acquire any shares or other securities or enter into any transaction in a derivative; or

 

  (g)

enter into any form of amalgamation, merger or de-merger or any form of reconstruction or reorganisation which would (in the case of the Borrower) give rise to a Change of Control Event; or

 

  (h)

incur any Financial Indebtedness (including issuing any guarantee or making any loans or advances) other than in the ordinary course of owning and operating its Ship or an unsecured guarantee in respect of the Indenture dated November 13, 2013 as otherwise contemplated by this Agreement.

 

12.4

Inter-company Loans. Each Borrower shall procure that any Financial Indebtedness incurred from any of their respective shareholders or any other company which is controlled (directly or indirectly) by the Corporate Guarantor or the Borrowers is so incurred on terms that the same is fully subordinated to the Borrowers’ obligations under the Finance Documents in form and substance acceptable to the Agent.

 

12.5

Ownership. The Borrowers will ensure that throughout the Security Period there is no change in the ownership of the Borrowers or in the beneficial ownership of the Borrowers from that which has been disclosed to the Lenders prior to the execution of this Agreement.

 

12.6

Sanctions. Each Borrower undertakes that it shall:

 

  (a)

not be, and shall procure that any Security Party and other member of the Group and an Approved Manager or any Related Person of any of them, or any director, officer, agent, employee or person acting on behalf of the foregoing is not, a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person or have a course of dealings with a Restricted Person;

 

  (b)

and shall procure that each Security Party, each Approved Manager and each other member of the Group and each Related Person of any of them shall, not use any revenue or benefit derived from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Creditor Parties;

 

  (c)

and shall procure that each Security Party, each Approved Manager and each other member of the Group and each Related Person of any of them shall not take any action, make any omission or use (directly or indirectly) any proceeds of the Loan in a manner that is a breach of Sanctions; and/or causes (or will cause) a breach of Sanctions by any Creditor Party;

 

  (d)

procure that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account held with any Creditor Party in its name or in the name of any other member of the Group or any Related Person of any of them;

 

  (e)

take, and shall procure that each Security Party, each Approved Manager and each other member of the Group and each Related Person of any of them has taken, reasonable measures to ensure compliance with Sanctions;

 

  (f)

and shall procure that each Security Party, each Approved Manager and each other member of the Group shall, to the extent permitted by law promptly upon becoming aware of them, supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority; and

 

35


  (g)

not accept, obtain or receive any goods or services from any Restricted Person, except (without limiting Clause 12.5(b)), to the extent relating to any warranties and/or guarantees given and/or liabilities incurred in respect of an activity or dealing with a Restricted Person by a Borrower, any other Security Party, an Approved Manager or any other member of the Group in accordance with this Agreement.

 

12.7

Anti-bribery. The Borrowers shall ensure that no Security Party nor any of their respective affiliates, officers, directors, employees or agents acting on their behalf will, offer, give, insist on, receive or solicit any illegal payment or improper advantage to influence the action of any person in connection with any of its business.

 

12.8

FATCA Information

 

  (a)

Subject to paragraph (c) below, the Borrowers shall, within 10 Business Days of a reasonable request by the Agent:

 

  (i)

confirm to the Agent whether it or any Security Party is:

 

  (A)

a FATCA Exempt Party; or

 

  (B)

not a FATCA Exempt Party; and

 

  (ii)

supply to the requesting party such forms, documentation and other information relating to its status, or the status of such Security Party, under FATCA as the Agent reasonably requests for the purposes of its compliance with FATCA.

 

  (b)

If a Borrower confirms pursuant to this Clause 12.8 (a) (i) that it, or a Security Party, is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, such Borrower shall notify the Agent reasonably promptly.

 

  (c)

If a Borrower fails to confirm its status, or the status of a Security Party, or to supply forms, documentation or other information requested in accordance with subclause (a) above, then such Security Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until (in each case) such time as a Borrower provides the requested confirmation, forms, documentation or other information.

 

12.9

Financial covenants. At all times during the Security Period, by reference to the Latest Accounts, the Borrowers shall ensure that:

 

  (d)

at no time shall the Liquidity of the Group be less than $30,000,000;

 

  (e)

the Total Liabilities less cash (which shall have the meaning given thereto under US GAAP) divided by the Total Assets (adjusted for market values of owned vessels) less cash (which shall have the meaning given thereto under US GAAP meaning both restricted and freely available cash) shall be at all times less than 85%; and

 

  (f)

the Net Worth shall at all times be equal to or more than USD50,000,000.

 

12.10

Compliance Check. Compliance with the undertakings contained in Clause 12.9 (Financial covenants) shall be determined by reference to the audited consolidated accounts for each Financial Year of the Corporate Guarantor and commencing with the Financial Year ending 31 December 2020, each delivered to the Agent pursuant to Clause 11.7 (Provision of financial statements) of this Agreement. Unless and until the Agent (acting with the authorisation of the Majority Lenders) otherwise agrees in writing, at the same time as it delivers those consolidated accounts (audited and unaudited) for each Financial Year, the Corporate Guarantor shall deliver to the Agent a Compliance Certificate, signed by the chief financial officer of the Corporate Guarantor, evidencing calculations and compliance with the financial covenants.

 

36


1 3 I N S U R A N C E

 

13.1

General. The Borrowers undertake with each Creditor Party to comply with the following provisions of this Clause 13 at all times during the Security Period except as the Agent, with the authority of the Majority Lenders, may otherwise permit in writing such permission not to be unreasonably withheld.

 

13.2

Maintenance of obligatory insurances. Each Borrower shall keep the Ship owned by it insured at the expense of that Borrower against:

 

  13.2.1

fire and usual marine risks (including hull and machinery, hull interest and excess risks);

 

  13.2.2

war risks (including war P & I liabilities and the London Blocking and Trapping Addendum or similar arrangement); and

 

  13.2.3

protection and indemnity risks (which cover shall include freight, demurrage and defence) in excess of the limit of cover for oil pollution liability risks included within the protection and indemnity risks; and

 

  13.2.4

any other risks against which the Agent considers, having regard to practices and other circumstances prevailing at the relevant time, it would in the opinion of the Agent be reasonable for that Borrower to insure and which are specified by the Agent by notice to that Borrower.

 

13.3

Terms of obligatory insurances. Each Borrower shall effect such insurances:

 

  (a)

in Dollars;

 

  (b)

in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of (i) such amount, which when aggregated with the amount for which any other Ship then subject to a Mortgage is insured, is at least equal to 120% of the Loan and (ii) the Market Value of the Ships;

 

  (c)

in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry (with the international group of protection and indemnity clubs) and the international marine insurance market (and which shall be no less than $1,000,000,000);

 

  (d)

in relation to protection and indemnity risks in respect of the full value and tonnage of the Ship owned by it;

 

  (e)

on approved terms; and

 

  (f)

through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks association (which is of a rating acceptable to the Agent) and protection and indemnity risks association (which is of a rating acceptable to the Agent and is a signatory to the International Group Agreement 1985).

 

37


13.4

Further protections for the Creditor Parties. In addition to the terms set out in Clause 13.3 (Terms of obligatory insurances), each Borrower shall procure that the obligatory insurances shall:

 

  (a)

(except in relation to risks referred to in Clause 13.2.3 (Maintenance of obligatory insurances) (name (or be amended to name) the Security Agent as additional named

assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Agent, but without the Security Agent thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;

 

  (b)

name the Security Agent as sole loss payee on such terms and with such directions for payment as the Security Agent may specify (and in particular on terms that the deductible in respect of the hull and machinery insurances shall not exceed the amount agreed upon and stated in the loss payable clause);

 

  (c)

provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent shall be made without set-off, counterclaim or deductions or condition whatsoever;

 

  (d)

provide that the insurers shall waive, to the fullest extent permitted by English law, their entitlement (if any) (whether by statute, common law, equity, or otherwise) to be subrogated to the rights and remedies of the Security Agent in respect of any rights or interests (secured or not) held by or available to the Security Agent in respect of the Secured Liabilities, until the Secured Liabilities shall have been fully repaid and discharged, except that the insurers shall not be restricted by the terms of this paragraph

 

  (d)

from making personal claims against persons (other than the Borrowers or any Creditor Party) in circumstances where the insurers have fully discharged their liabilities and obligations under the relevant obligatory insurances;

 

  (e)

provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Agent;

 

  (f)

provide that the Security Agent may make proof of loss if the Borrowers fail to do so; and

 

  (g)

provide that if any obligatory insurance is validly cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Security Agent, or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, charge or lapse shall not be effective with respect to the Security Agent for 14 days (or 7 days in the case of war risks) after receipt by the Security Agent of prior written notice from the insurers of such cancellation, change or lapse.

 

13.5

Renewal of obligatory insurances. Each Borrower shall:

 

  (a)

at least 21 days (or such shorter period as the Agent may agree) before the expiry of any obligatory insurance:

 

  (i)

notify the Security Agent of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom such Borrower proposes to renew that insurance and of the proposed terms of renewal; and

 

  (ii)

in case of any substantial change in insurance cover, obtain the Agent’s approval to the matters referred to in paragraph (i) above;

 

  (b)

at least 14 days (or such shorter period as the Agent may agree)before the expiry of any obligatory insurance, renew the insurance; and

 

  (c)

procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Agent in writing of the terms and conditions of the renewal.

 

38


13.6

Copies of policies; letters of undertaking. Each Borrower shall ensure that all approved brokers provide the Security Agent with copies of all policies relating to the obligatory

insurances which they effect or renew and of a letter or letters or undertaking in a form required by the Agent and including undertakings by the approved brokers that:

 

  (a)

they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4 (Further protections for the Creditor Parties);

 

  (b)

they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with the said loss payable clause;

 

  (c)

they will advise the Security Agent without undue delay of any material change to the terms of the obligatory insurances;

 

  (d)

they will notify the Security Agent, not less than 14 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the relevant Owner or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Agent of the terms of the instructions; and

 

  (e)

they will not set off against any sum recoverable in respect of a claim relating to either Ship under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of a Ship or otherwise, they waive any lien on the policies or, any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of each Ship forthwith upon being so requested by the Security Agent.

 

13.7

Copies of certificates of entry. Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide to the Security Agent:

 

  (a)

a certified copy of the certificate of entry for that Ship;

 

  (b)

a letter or letters of undertaking in such form as may be required by the Security Agent; and

 

  (c)

where required to be issued under the terms of insurance/indemnity provided by the relevant Owner’s protection and indemnity association, a certified copy of each United States of America voyage quarterly declaration (or other similar document or documents) made by such Borrower in relation to its Ship in accordance with the requirements of such protection and indemnity association; and

 

  (d)

if applicable, a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the relevant Ship.

 

13.8

Deposit of original policies. Each Borrower shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed.

 

13.9

Payment of premiums. Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances and produce certified copies of all relevant receipts when so required by the Security Agent.

 

13.10

Guarantees. Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.

 

13.11

Restrictions on employment. No Borrower shall employ its Ship, nor permit her to be employed, outside the cover provided by any obligatory insurances.

 

39


13.12

Compliance with terms of insurances. No Borrower shall do or omit to do (or permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable thereunder repayable in whole or in part; and, in particular:

 

  (a)

each Borrower shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 13.7(c) above) (Copies of certificates of entry) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Agent has not given its prior approval;

 

  (b)

no Borrower shall make any changes relating to the classification or classification society (unless the new classification society is a member of IACS) or manager or operator of its Ship unless approved by the underwriters of the obligatory insurances;

 

  (c)

each Borrower shall make all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which its Ship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and

 

  (d)

no Borrower shall employ its Ship, nor allow her to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.

 

13.13

Alteration to terms of insurances. No Borrower shall make, or agree to, any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance without the prior written consent of the Security Agent.

 

13.14

Settlement of claims. No Borrower shall settle, except with the prior written consent of the Security Agent, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.

 

13.15

Provision of copies of communications. Each Borrower shall on the Agent’s written request, provide the Agent, with copies of all written communications between that Borrower and:

 

  (a)

the approved brokers;

 

  (b)

the approved protection and indemnity and/or war risks associations; and

 

  (c)

the approved insurance companies and/or underwriters, which relate directly or indirectly to:

 

  (d)

that Borrower’s obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and

 

  (e)

any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of the obligatory insurances.

 

40


13.16

Provision of information. In addition, each Borrower shall promptly provide the Agent (or any persons which it may designate) with any information which the Agent (or any such designated person) reasonably requests for the purpose of:

 

  (a)

obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or

 

  (b)

effecting, maintaining or renewing any such insurances as are referred to in Clause 13.17 (Mortgagee’s interest) below or dealing with or considering any matters relating to any such insurances,

and the Borrowers shall, forthwith upon demand, indemnify the Security Agent in respect of all reasonable fees and other reasonable expenses incurred by or for the account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.

 

13.17

Mortgagee’s interest. The Security Agent shall be entitled from time to time to effect, maintain and renew all or any of the following insurances in such amounts, on such terms, through such insurers and generally in such manner as the Agent may from time to time reasonably consider appropriate:

 

  (a)

a mortgagee’s interest marine insurance (in an amount of no less than 110% of the Loan at any relevant time) providing for the indemnification of the Creditor Parties for any losses under or in connection with any Finance Document which directly or indirectly result from loss of or damage to either Ship or a liability of either Ship or of either Borrower, being a loss or damage which is prima facie covered by an obligatory insurance but in respect of which there is a non-payment (or reduced payment) by the underwriters by reason of, or on the basis of an allegation concerning:

 

  (i)

any act or omission on the part of a Borrower, of any operator, charterer, manager or sub-manager of the Ship owned by it or of any officer, employee or agent of a Borrower or of any such person, including any breach of warranty or condition or any non-disclosure relating to such obligatory insurance;

 

  (ii)

any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of a Borrower, any other person referred to in paragraph (i) above, or of any officer, employee or agent of that Borrower or of such a person, including the casting away or damaging of the Ship owned by it and/or the Ship owned by it being unseaworthy; and/or

 

  (iii)

any other matter capable of being insured against under a mortgagee’s interest marine insurance policy whether or not similar to the foregoing; and

 

  (b)

if required, a mortgagee’s interest additional perils policy (in an amount of no less than 110% of the Loan at any relevant time) providing for the indemnification of the Creditor Parties against, among other things, any possible losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of a Ship, the imposition of any Security Interest over a Ship and/or any other matter capable of being insured against under a mortgagee’s interest additional perils policy whether or not similar to the foregoing,

and the Borrowers shall upon demand fully indemnify the Security Agent in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.

 

13.18

Review of insurance requirements. The Majority Lenders shall be entitled to review the requirements of this Clause 13 from time to time in order to take account of any changes in circumstances after the date of this Agreement which are, in the opinion of the Majority Lenders, significant and capable of affecting either Borrower or either Ship and its insurance (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to which the Borrowers may be subject), and may appoint insurance consultants in relation to this review at the cost of the Borrowers.

 

41


13.19

Modification of insurance requirements. The Agent shall notify the Borrowers of any proposed modification under Clause 13.1813.17 (Review of insurance requirements) to the requirements of this Clause 13 (Insurance) which the Majority Lenders reasonably consider appropriate in the circumstances, and such modification shall take effect without undue delay on and from the date it is notified in writing to the Borrowers as an amendment to this Clause 13 (Insurance) and shall bind the Borrowers accordingly.

 

13.20

Compliance with mortgagee’s instructions. The Agent shall be entitled (without prejudice to or limitation of any other rights which it may have or acquire under any Finance Document) to require a Ship to remain at any safe port or to proceed to and remain at any safe port designated by the Agent until the Borrowers implement any amendments to the terms of the obligatory insurances and any operational changes required as a result of a notice served under Clause 13.18 (Review of insurance requirements).

 

14

SHIP COVENANTS

 

14.1

General. Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent, with the authority of the Majority Lenders, may otherwise reasonably permit in writing such permission not to be unreasonably withheld.

 

14.2

Ship’s name, registration and classification. Each Borrower shall keep its Ship registered in its name under the Approved Flag; shall not do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of its Ship; and shall not make any changes relating to the classification or classification society of its Ship (unless the new classification society is a member of IACS).

 

14.3

Repair and classification. Each Borrower shall keep its Ship in a good and safe condition and state of repair:

 

  (a)

consistent with first-class ship operation and management practice;

 

  (b)

so as to maintain the highcst class applicable to vessels of the same age, type and specification as such Ship at American Bureau of Shipping (or an equivalent IACS classification society acceptable to the Agent in its reasonable discretion) free of overdue recommendations and conditions affecting class that ship’s class that have not been complied with in accordance with their terms class; and

 

  (c)

so as to comply with all laws and regulations applicable to vessels registered at ports in the Approved Flag State or to vessels trading to any jurisdiction to which such Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code and the ISM Code Documentation and the ISPS Code Documentation.

 

14.4

Modification. No Borrower shall make any modification or repairs to, or replacement of, its Ship or equipment installed on her which would or might materially alter the structure, type or performance characteristics of such Ship or materially reduce her value.

 

14.5

Removal of parts. No Borrower shall remove any material part of its Ship or any item of equipment installed on such Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security Agent and becomes on installation on such Ship the property of the relevant Owner and subject to the security constituted by the Mortgage Provided that the relevant Owner may install equipment owned by a third party if the equipment can be removed without any risk of damage to its Ship.

 

14.6

Survey. Each Borrower shall submit its Ship regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Agent provide the Agent, with copies of all survey reports; the Agent will consider a Borrower’s written justification for refusing to provide such survey and the Agent may, at its sole discretion, withdraw such request.

 

42


14.7

Inspection. Each Borrower shall permit the Agent (by surveyors or other persons appointed by it for that purpose) to board its Ship once per year and at a place where it is practically convenient based on the Ship’s schedule and without interfering with the operation of such Ship or causing her delay, to inspect her about proposed or executed repairs and shall afford all proper facilities for such inspections and shall make available to the Agent or its surveyor on request all records (on board or on shore) relating to its Ship. All reasonable fees and expenses reasonably incurred in relation to the appointment of the surveyor or surveyors once per year and the preparation and issue of all technical reports pursuant to this Clause 14.7 shall be for the account of the Borrowers.

 

14.8

Prevention of and release from arrest. Each Borrower shall promptly discharge:

 

  (a)

all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against its Ship or such Ship’s Earnings or Insurances;

 

  (b)

all taxes, dues and other amounts charged in respect of its Ship or such Ship’s Earnings or Insurances; and

 

  (c)

all other outgoings whatsoever in respect of its Ship or such Ship’s Earnings or Insurances

and, forthwith upon receiving notice of the arrest of its Ship, or of her detention in exercise or purported exercise of any lien or claim, the relevant Owner shall procure her release by providing bail or otherwise as the circumstances may require.

 

14.9

Compliance with laws etc. The Borrowers shall (and shall procure that the Approved Managers and their Related Persons shall):

 

  (a)

comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ships, each Ship’s ownership, operation and management or to the business of the Borrowers (including, but not limited to, the International Management Code for the Safe Operation of Ships and for Pollution Prevention) and all relevant national or international laws, statutes, regulations, directives, decrees or analogous rules (including, but not limited to, laws relating to any trading prohibition imposed by the Approved Flag State, the country of incorporation of the relevant Owner or the country of nationality of any crew member of the Ship owned by it by which that Borrower is bound in connection with such crew members or any rules relating to international sanctions) and pay all taxes for which it is liable as they fall due under any applicable law;

 

  (b)

not employ the Ships nor allow their employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code;

 

  (c)

and will procure that each Security Party, each Approved Manager and each other member of the Group and any Related Person of any of them will, comply in all respects with all Sanctions; and

 

  (d)

in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ships to enter or trade to any zone which is declared a war zone by any government or by a Ship’s war risks insurers unless the prior written consent of the Agent has been given and the relevant Owner has (at its expense) effected any special, additional or modified insurance cover which the Agent may require.

 

43


14.10

Provision of information. Each Borrower shall promptly provide the Security Agent with any information and/or evidence which the Security Agent requests regarding:

 

  (a)

its Ship, her employment, position and engagements;

 

  (b)

payments and amounts due to the master and crew of its Ship;

 

  (c)

any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of its Ship and any payments made in respect of such Ship;

 

  (d)

any towages and salvages; and

 

  (e)

its compliance, the Approved Managers compliance or the compliance of its Ship with the ISM Code and the ISPS Code;

 

  (f)

the class and classification society of its Ship;

and, upon the Agent’s request, provide copies of any current charter relating to its Ship, of any current charter guarantee and, of the ISM Code Documentation and the ISPS Code Documentation.

 

14.11

Notification of certain events. Each Borrower shall immediately notify the Agent by letter of:

 

  (a)

any casualty which is or is likely to he or to become a Major Casualty;

 

  (b)

any occurrence as a result of which its Ship has become or is, by the passing of time or otherwise, likely to become a Total Loss;

 

  (c)

any requirement or recommendation made by any insurer or classification society or by any competent authority which is not complied within the time limit, if any, imposed by any insurer or classification society or by any competent authority;

 

  (d)

any arrest or detention of its Ship, any exercise or purported exercise of any lien on such Ship or her Earnings or any requisition of such Ship for hire;

 

  (e)

any intended dry docking of its Ship which is not routine;

 

  (f)

any Environmental Claim made against a Borrower or in connection with its Ship, or any Environmental Incident;

 

  (g)

any claim for breach of the ISM Code or the ISPS Code being made against a Borrower, an Approved Manager or otherwise in connection with a Ship; or

 

  (h)

any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code and/or the ISPS Code not being complied with,

and the Borrowers shall keep the Agent advised in writing on a regular basis and in such detail as the Agent shall reasonably require of the Borrowers’, the affected Approved Managers’ or any other person’s response to any of those events or matters.

 

14.12

Restrictions on chartering, appointment of managers etc.

No Borrower shall:

 

  (a)

let its Ship on demise charter for any period;

 

  (b)

subject to Clause 14.15 (Charter Assignment), enter into any time or consecutive voyage charter in respect of its Ship for a term which exceeds 12 months in duration (excluding extension options) (and the Agent shall not unreasonably withhold its consent to such a charter);

 

  (c)

enter into any charter in relation to its Ship under which more than 4 months’ hire (or the equivalent) is payable in advance;

 

44


  (d)

charter its Ship otherwise than on bona fide arm’s length terms at the time when such Ship is fixed;

 

  (e)

appoint a manager of its Ship other than the Approved Managers or agree to any substantial alteration to the terms of either Approved Manager’s appointment;

 

  (f)

make any changes relating to the classification or classification society of its Ship (unless the new classification society is a member of IACS);

 

  (g)

de-activate or lay up its Ship; or

 

  (h)

put its Ship into the possession of any person for the purpose of work being done upon her in an amount exceeding or likely to exceed $500.000 (or the equivalent in any other currency).

 

14.13

Notice of Mortgage. Each Borrower shall keep the Mortgage registered against its Ship as a valid first priority mortgage and if required by the Approved Flag State, carry on board such Ship a certified copy of the Mortgage and place and maintain in a conspicuous place in the navigation room and the Master’s cabin of such Ship a framed printed notice stating that that Ship is mortgaged by the relevant Owner to the Security Agent.

 

14.14

Sharing of Earnings. No Borrower shall:

 

  (a)

enter into any agreement or arrangement for the sharing of any Earnings;

 

  (b)

enter into any agreement or arrangement for the postponement of any date on which any Earnings are due; the reduction of the amount of any Earnings or otherwise for the release or adverse alteration of any rights of a Borrower to any Earnings; apart from any profit sharing arrangements with a Charterer which are permitted on arm’s length basis and at normal market rates; or

 

  (c)

enter into any agreement or arrangement for the release of, or adverse alteration to, any guarantee or Security Interest relating to any Earnings.

 

14.15

Charter Assignment. If a Borrower enters into any Charter in respect of its Ship such Borrower shall, at the request of the Agent, execute in favour of the Security Agent a Charter Assignment in respect of such Charter in the form and upon the terms and conditions required by the Agent and shall deliver to the Agent such corporate authorities and corporate documents as the Agent may require along with a certified true copy of such Charter or its recap provided that such notice will only be served to the relevant Charterer if there is an Event of Default which is continuing.

 

14.16

Insurance opinion. Each Borrower shall provide the Agent (i) in case of any alteration to the terms of any obligatory insurances in respect of its Ship or any change in the brokers and/or insurance companies and/or underwriters through which such insurances are effected and (ii) otherwise on request, at the Borrowers’ cost, with an opinion from insurance consultants on the insurances effected or to be effected in respect of such Ship, confirming that such Ship is insured on terms approved by the Agent or, if such insurance opinion has been obtained by the Agent, shall reimburse the Agent for the cost of such opinion.

 

14.17

Nuclear waste, nuclear material. Each Borrower shall ensure that its Ship will not, under any circumstances, carry any nuclear material or nuclear waste at any time

 

14.18

Trading. No Borrower shall permit its Ship to trade in any area prohibited by (i) the government of the Approved Flag State of its Ship, (ii) the country of incorporation or domicile of the relevant Owner or (iii) the country of which any officer and crew member on board such Ship is a national.

 

45


15

SECURITY COVER

 

15.1

Provision of additional security cover; prepayment of Loan. The Borrowers undertake with each Creditor Party that if the Agent notifies the Borrowers in writing that after the Drawdown Date the Security Value is less than the Required Security Amount, the Borrowers will, within 30 days after the date on which the Agent’s notice is served, either:

 

  (i)

provide, or ensure that there is provided, additional security (including, but not limited to, a first or second preferred mortgage over a ship) which, in the opinion of the Agent, has a net realisable value (calculated in the case of a ship in accordance with Clause 15.2 (Valuation of a Ship)) at least equal to the shortfall and which covers such asset or assets, and is documented in such terms, as the Agent may approve or require

 

  (ii)

prepay in accordance with Clause 8 (Repayment and Prepayment) such part (at least) of the Loan as will eliminate the shortfall; or

 

  (iii)

pledge to the Agent by way of security an amount of cash of no less than the amount of the shortfall.

 

15.2

Valuation of a Ship. A Ship shall, for the purposes of this Agreement, be valued in Dollars by taking the valuation prepared by an independent ship sale and purchase broker appointed by the Agent, such valuation to be made without physical inspection, and on the basis of a sale for prompt delivery for cash at arms’ length, on normal commercial terms, as between a willing buyer and a willing seller without taking into account the benefit or burden of any charterparty or other engagement concerning such Ship and shall be no older than 30 days as at any relevant date. Valuations shall be obtained:

 

  (a)

prior to the Drawdown Date and annually thereafter; and

 

  (b)

(in addition to (a) above) at any other time as the Agent shall require (in its reasonable discretion).

The valuations for a Ship on each such occasion shall constitute the Market Value of a Ship for the purposes of this Agreement until superseded by the next such valuation.

 

15.3

Valuations binding. Any valuation under Clause 15.2 (Valuation of a Ship) shall be binding and conclusive as regards the Borrowers, as shall be any valuation which the Agent makes of a security which does not consist of or include a Security Interest.

 

15.4

Provision of information. The Borrowers shall promptly provide the Agent and any shipbroker or expert acting under Clause 15.2 (Valuation of a Ship) with any reasonable information which the Agent or the shipbroker or expert may request for the purposes of the valuations; and, if a Borrower fails to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which the shipbroker or the Agent (or the expert appointed by it) considers prudent.

 

15.5

Payment of valuation expenses. All costs in connection with obtaining and determining (i) any Market Value pursuant to Clause 15.2(a) (Valuation of a Ship), (ii) any Market Value pursuant to Clause 15.2(b) (Valuation of a Ship) after the occurrence of an Event of Default, (iii) any Market Value which obliges the Borrowers to make a prepayment of the Loan or provide additional security in accordance with Clause 15.1 (Provision of additional security cover; prepayment of Loan), and (iv) any valuation either of any additional security for the purposes of ascertaining the Market Value at any time or necessitated by the Borrowers electing to constitute additional security pursuant to Clause 15.1 (Provision of additional security cover; prepayment of Loan), must be paid by the Borrowers.

 

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16

PAYMENTS AND CALCULATIONS

 

16.1

Currency and method of payments. All payments to be made:

 

  (a)

by the Lenders to the Agent; or

 

  (b)

by either Borrower to the Agent, the Security Agent or any Lender, under a Finance Document shall be made to the Agent or to the Security Agent, in the case of an amount payable to it:

 

  (i)

by not later than 11.00 a.m. (New York City time) on the due date;

 

  (ii)

in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement); and

 

  (iii)

if in Dollars, to the account of the Agent at (SWIFT address: ERBKGRAA) with Deutsche Bank Trust Company Americas, New York, USA (SWIFT address: BKTRUS33), or to such other account with such other bank as the Agent may from time to time notify to the Borrowers and the other Creditor Parties or to such other account with such other bank as the Security Agent may from time to time notify to the Borrowers and the other Creditor Parties.

 

16.2

Payment on non-Business Day. If any payment by the Borrowers under a Finance Document would otherwise fall due on a day which is not a Business Day:

 

  (a)

the due date shall be extended to the next succeeding Business Day; or

 

  (b)

if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day,

and interest shall be payable during any extension under paragraph (a) at the rate payable on the original due date.

 

16.3

Basis for calculation of periodic payments. All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.

 

16.4

Distribution of payments to Creditor Parties. Subject to Clauses 16.5 (Permitted deductions by Agent), 16.6 (Agent only obliged to pay when monies received) and 16.7 (Refund to Agent of monies not received):

 

  (a)

any amount received by the Agent or the Security Agent under a Finance Document for distribution or remittance to a Lender or the Security Agent shall be made available by the Agent to that Lender or, as the case may be to the Security Agent by payment, with funds having the same value as the funds received, to such account as that Lender or the Security Agent may have notified to the Agent not less than 5 Business Days previously; and

 

  (b)

amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.

 

16.5

Permitted deductions by Agent. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand.

 

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16.6

Agent only obliged to pay when monies received. Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to the Borrowers or any Lender any sum which the Agent is expecting to receive for remittance or distribution to the Borrowers or that Lender until the Agent has satisfied itself that it has received that sum.

 

16.7

Refund to Agent of monies not received. If and to the extent that the Agent makes available a sum to the Borrowers or a Lender, without first having received that sum, the Borrowers or (as the case may be) the Lender concerned shall, on demand:

 

  (a)

refund the sum in full to the Agent; and

 

  (b)

pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.

 

16.8

Agent may assume receipt. Clause 16.7 (Refund to agent of monies not received) shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.

 

16.9

Creditor Party accounts. Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.

 

16.10

Agent’s memorandum account. The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Creditor Parties from the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.

 

16.11

Accounts prima facie evidence. If any accounts maintained under Clauses 16.9 (Creditor Party accounts) and 16.10 (Agent’s memorandum account) show an amount to be owing by the Borrowers or a Security Party to a Creditor Party, those accounts shall, absent manifest error, be prima facie evidence that that amount is owing to that Creditor Party.

 

17

APPLICATION OF RECEIPTS

 

17.1

Normal order of application. Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:

 

  (a)

FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:

 

  (i)

first, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents other than those amounts referred to at paragraphs (ii) and (iii) (including, but without limitation, all amounts payable by the Borrowers under Clauses 20 (Fees and Expenses), 21 (Indemnities) and 22 (No Set-Off or Tax Deduction) of this Agreement or by the Borrowers or any Security Party under any corresponding or similar provision in any other Finance Document);

 

  (ii)

secondly, in or towards satisfaction pro rata of interest and default interest payable to the Creditor Parties under the Finance Documents; and

 

  (iii)

thirdly, in or towards satisfaction of the Loan;

 

48


  (b)

SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrowers, the Security Parties and the other Creditor Parties, states in its opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the foregoing provisions of this Clause; and

 

  (c)

THIRDLY: any surplus shall, provided that there is no continuing Event of Default, be paid to the Borrowers.

 

17.2

Variation of order of application. The Security Agent may by notice to the Borrowers, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 (Normal order of application) either as regards a specified sum or sums or as regards sums in a specified category or categories.

 

17.3

Notice of variation of order of application. The Security Agent may give notices under Clause 17.2 (Variation of order of application) from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.

 

17.4

Appropriation rights overridden. This Clause 17 and any notice which the Security Agent gives under Clause 17.2 (Variation of order of application) shall override any right of appropriation possessed, and any appropriation made, by either Borrower or any Security Party.

 

18

APPLICATION OF EARNINGS

 

18.1

Payment of Earnings. Each Borrower undertakes with each Creditor Party to ensure that, throughout the Security Period (and subject only to the provisions of the General Assignment), all the Earnings of its Ship are paid to the relevant Earnings Account.

 

18.2

Application of Earnings. Each Borrower undertakes with the Lenders that money from time to time credited to, or for the time being standing to the credit of, an Earnings Account shall, unless and until an Event of Default shall have occurred (whereupon the provisions of Clause 17.1 (Normal order of application) shall be and become applicable), be available for application in the following manner:

 

  (a)

FIRST: in or towards meeting the costs, fees and expenses payable by the Borrowers under the Finance Documents;

 

  (b)

SECONDLY: pari passu in or towards making the payments of interest due to the Lenders pursuant to this Agreement;

 

  (c)

THIRDLY: pari passu in or towards making payments of the repayment instalments under Clause 8.1 (Amount of repayment instalments);

 

  (d)

FOURTHLY: in or towards making the transfers to the Retention Account required pursuant to Clause 18.3 (Monthly retentions); and

 

  (e)

FIFTHLY: as to any surplus from time to time arising on an Earnings Account following application as aforesaid, to be paid to the relevant Borrower or to whomsoever it may direct.

 

18.3

Monthly retentions. The Borrowers undertake with the Lenders to ensure that, throughout the Security Period and commencing on the date falling one (1) month after the Drawdown Date to occur, and thereafter on the same day in each subsequent month, there is transferred to the Retention Account out of the aggregate Earnings received in the Earnings Account during the preceding calendar month:

 

  (a)

one-third of the amount of the repayment instalment falling due under Clause 8 (Repayment and Prepayment) on the next Repayment Date; and

 

49


  (b)

the relevant fraction of the amount of interest which is payable on the next due date for payment of interest under this Agreement.

 

18.4

The “relevant fraction” is a fraction of which the numerator is 1 and the denominator the number of months comprised in the current Interest Period (or, if the current Interest Period ends after the next date for payment of interest under this, the number of months from the later of the commencement of the current Interest Period or the last due date for payment of interest to the next date for payment of interest under this Agreement).

 

18.5

Shortfall in Earnings. If the aggregate Earnings received in the Earnings Accouns are insufficient at any time for the required amount to be transferred to the Retention Account under Clause 18.3 (Monthly Retentions), the Borrowers shall make up the amount of the insufficiency on demand from the Lenders; but, without thereby prejudicing the Lenders’ right to make such demand at any time, the Lenders may permit the Borrowers to make up all or part of the insufficiency by increasing the amount of any transfer under Clause 18.3 (Monthly Retentions) from the Earnings received in the next or subsequent months.

 

18.6

Application of retentions. Until an Event of Default occurs, the Lenders shall on each Repayment Date and on each due date for the payment of interest under this Agreement distribute to the Lenders so much of the then balance on the Retention Account as equals:

 

  (a)

the repayment instalment due on that Repayment Date; or

 

  (b)

the amount of interest payable on that interest payment date, in discharge of the Borrowers’ liability for that repayment instalment or that interest.

 

18.7

Interest accrued on Retention Account. Any credit balance on the Retention Account shall bear interest at the rate from time to time offered by the Lenders to its customers for Dollar deposits of similar amounts and for periods similar to those for which such balances appear to the Lenders likely to remain on the Retention Account.

 

18.8

Release of accrued interest. Interest accruing under Clause 18.6 (Application of retention) on the Retention Account shall remain on the Retention Account and shall not be released to the Borrowers until the end of the Security Period.

 

18.9

Location of accounts. Each Borrower shall promptly:

 

  (a)

comply with any requirement of the Agent as to the location or re-location of its Earnings Account and/or the Retention Account or any of them; and

 

  (b)

execute any documents which the Agent specifies to create or maintain in favour of the Security Agent a Security Interest over the Earnings Accounts and/or the Retention Account or any of them.

 

18.10

Borrowers’ obligations unaffected. The provisions of this Clause 18 do not affect:

 

  (a)

the liability of the Borrowers to make payments of principal and interest on the due dates; or

 

  (b)

any other liability or obligation of the Borrowers or any Security Party under any Finance Document.

 

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18.11

Other accounts. Each Lender is hereby authorised to open and maintain as many Loan and/or contingent and/or suspense and/or intermediary accounts as necessary for the purpose of facilitating the accounting monitoring of the Loan in its books. In this respect each Lender is authorised to merge and/or divide and/or transfer the balances of any such accounts to other such accounts. In any litigation proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by the relevant Lender in accordance with its usual practice are conclusive evidence of the matters to which they relate save in the case of manifest error.

 

19

EVENTS OF DEFAULT

 

19.1

Events of Default. An Event of Default occurs if:

 

  (a)

either Borrower or any Relevant Person fails to pay when due or (if so payable) on demand any sum payable under a Finance Document or under any document relating to a Finance Document unless (i) its failure to pay is caused by administrative or technical error or a Disruption Event and (ii) payment is made within three Business Days of its due date; or

 

  (b)

any breach occurs of Clause 9.3 (Conditions subsequent), 11.2 (Title; negative pledge), 11.3 (No disposal of assets), 12.2 (Maintenance of status), 12.3 (Negative Undertakings), 12.6 (Sanctions), 13.2 (Maintenance of obligatory insurances), 13.3 (Terms of obligatory insurances) or 15.1 (Provision of additional security cover; prepayment of Loan); or

 

  (c)

any breach by either Borrower or any Relevant Person occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b) above) if, in the opinion of the Majority Lenders, such default is capable of remedy, and such default continues unremedied 20 days after written notice from the Agent requesting action to remedy the same; or

 

  (d)

(subject to any applicable grace period specified in the Finance Document) any breach by either Borrower or any Relevant Person occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a), (b) or (c) above); or

 

  (e)

any representation, warranty or statement made by, or by an officer of, a Borrower or a Relevant Person in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading in a material respect when it is made or repeated; or

 

  (f)

any of the following occurs in relation to any Financial Indebtedness (exceeding $10,000,000 in respect of the Corporate Guarantor, $500,000 in respect of a Borrower and $1,000,000 in respect of all other Relevant Persons) of a Relevant Person:

 

  (iv)

any Financial Indebtedness of any Relevant Person is not paid when due or, if so payable, on demand; or

 

  (v)

any Financial Indebtedness of any Relevant Person becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or

 

  (vi)

a lease, hire purchase agreement or charter creating any Financial Indebtedness of any Relevant Person is terminated by the lessor or owner or becomes capable of being terminated as a consequence of any termination event; or

 

  (vii)

any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of any Relevant Person ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or

 

51


  (viii)

any Security Interest securing any Financial Indebtedness of any Relevant Person becomes enforceable; or

 

  (g)

any of the following occurs in relation to a Relevant Person:

 

  (i)

a Relevant Person becomes, in the reasonable opinion of the Majority Lenders, unable to pay its debts as they fall due; or

 

  (ii)

any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress in respect of a sum of, or sums aggregating, $10,000,000 or more in respect of the Corporate Guarantor, $500,000 or more in respect of a Borrower and $1,000,000 or more for all other Relevant Persons or the equivalent in another currency and, in respect of a Relevant Person other than a Security Party, the same is not lifted within 30 days; or

 

  (iii)

any administrative or other receiver is appointed over any asset of a Relevant Person unless contested in good faith and on substantial grounds; or

 

  (iv)

a Relevant Person makes any formal declaration of bankruptcy or any formal statement to the effect that it is insolvent or likely to become insolvent, or a winding up or administration order is made in relation to a Relevant Person, or the members or directors of a Relevant Person pass a resolution to the effect that it should be wound up, placed in administration or cease to carry on business, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by the Agent and effected not later than 3 months after the commencement of the winding up; or

 

  (v)

a petition is presented in any Pertinent Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of a Relevant Person unless the petition is being contested in good faith and on substantial grounds and is dismissed or withdrawn within 30 banking days of the presentation of the petition; or

 

  (vi)

a Relevant Pcrson petitions a court, or presents any proposal for, any form of judicial or non-judicial suspension or deferral of payments, reorganisation of its debt (or certain of its debt) or arrangement with all or a substantial proportion (by number or value) of its creditors or of any class of them or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise other than any re-organisation required pursuant to any new legislation passed by a relevant government; or

 

  (vii)

any meeting of the members or directors of a Relevant Person is summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iii), (iv), (v) or (vi) above; or

 

  (viii)

in a Pertinent Jurisdiction other than England, any event occurs or any procedure is commenced which, in the reasonable opinion of the Agent, is similar to any of the foregoing; or

 

  (h)

any Relevant Person ceases or suspends carrying on its business or a part of its business which, in the opinion of the Majority Lenders, is material in the context of this Agreement; or

 

  (i)

it becomes unlawful in any Pertinent Jurisdiction or impossible:

 

  (i)

for any Relevant Person to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a Finance Document; or

 

52


  (ii)

for any Creditor Party to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or

 

  (j)

any official consent necessary to enable either Borrower to own, operate or charter the Ship owned by it or to enable either Borrower to comply with any provision which the Agent considers material of a Finance Document is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled; or

 

  (k)

any provision which the Majority Lenders reasonably consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest; or

 

  (1)

the security constituted by a Finance Document is in any way imperilled or in jeopardy; or

 

  (m)

any Security Party is in breach of or fails to observe any law, requirement, measure or procedure implemented to combat Money Laundering; or

 

  (n)

the classification of either Ship is withdrawn by its classification society the Ship is not immediately granted a new classification by another classification society; or

 

  (o)

either Ship is expropriated, confiscated, requisitioned or acquired, whether for full consideration, a consideration less than her proper value, a nominal consideration or without any consideration, by any government or official authority or by any person or persons claiming to be or to represent a government or official authority; or

 

  (p)

any legal or administrative proceedings of any kind whatsoever have been commenced against either Borrower which could, in the opinion of the Majority Lenders be expected to have a Material Adverse Effect; or

 

  (q)

an Environmental Incident occurs which gives rise, or may give rise, to an Environmental Claim which could, in the opinion of the Majority Lenders be expected to have a Material Adverse Effect; or

 

  (r)

any other event occurs or circumstance arises (including, but not limited to, any global economic or political events, or events related to the international money or capital markets) which, in the opinion of the Agent, is likely materially and adversely to affect either (i) the ability of any Security Party to perform all or any of its obligations under or otherwise to comply with the terms of any of the Finance Documents or (ii) the security created by any of the Finance Documents; or

 

  (s)

the Approved Flag State of either Ship or the country in which any Security Party is incorporated or domiciled becomes involved in hostilities or civil war or there is a seizure of power in an Approved Flag State by unconstitutional means unless such Ship registered in such Approved Flag State shall have been transferred onto a new Approved Flag acceptable to the Lenders within thirty (30) days of the start of such hostilities or civil war or seizure of power; or

 

  (t)

there shall occur a Change of Control Event; or

 

  (u)

Mrs. Angeliki Frangou ceases to ceases to be Chairman and CEO of the Corporate Guarantor; or

 

53


  (v)

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

 

  (w)

the Corporate Guarantor ceases to be (aa) the holding company of ocean-going vessels, and (bb) listed and trading at NYSE or other exchange in the United States of America; or

 

  (x)

any other event occurs or any other circumstances arise or develop including, without limitation a material adverse change in the financial position, state of affairs or prospects of a Borrower or the Corporate Guarantor which affects its payment obligations under the Finance Documents to which it is a party in the light of which the Majority Lenders reasonably consider that a Borrower or any Relevant Person is, or will later become, unable to discharge its liabilities under the Finance Documents as they fall due.

 

19.2

Actions following an Event of Default. On, or at any time after, the occurrence of an Event of Default which is continuing:

 

  (a)

the Agent may and if so instructed by the Majority Lenders, the Agent shall:

 

  (i)

serve on the Borrowers a notice stating that the Commitments and all other obligations of each Lender to the Borrowers under this Agreement are terminated; and/or

 

  (ii)

serve on the Borrowers a notice stating that the Loan, all accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable; it may credit the same to a suspense account in the name of the Agent for application either immediately or in due course in satisfaction of the Borrowers’ payment obligations under this Agreement; and/or

 

  (iii)

take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii) above, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or

 

  (b)

the Security Agent may, and if so instructed by the Agent, the Security Agent shall, take any action which, as a result of the Event of Default or any notice served under paragraph (a) (i) or (ii) above, the Security Agent, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law.

 

19.3

Termination of Commitments. On the service of a notice under paragraph (a)(i) of Clause 19.2 (Actions following an Event of Default), the Commitments and all other obligations of each Lender to the Borrowers under this Agreement shall terminate.

 

19.4

Acceleration of Loan. On the service of a notice under paragraph (a)(ii) of Clause 19.2 (Actions following an Event of Default), the Loan, all accrued interest and all other amounts accrued or owing from the Borrowers or any Relevant Person under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.

 

19.5

Multiple notices; action without notice. The Agent may serve notices under paragraphs (a) (i) and (ii) of Clause 19.2 (Actions following an Event of Default) simultaneously or on different dates and it and/or the Security Agent may take any action referred to in that Clause if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.

 

19.6

Notification of Creditor Parties and Relevant Persons. The Agent shall send to each Lender, the Security Agent and each Relevant Person a copy or the text of any notice which the Agent serves on the Borrowers under Clause 19.2 (Actions following an Event of Default); but the notice shall become effective when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide either Borrower or any Relevant Person with any form of claim or defence.

 

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19.7

Lender’s rights unimpaired. Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1 (Interests of Lenders several).

 

19.8

Exclusion of Creditor Party Liability. No Creditor Party, and no receiver or manager appointed by the Security Agent, shall have any liability to the Borrowers or a Relevant Person:

 

  (a)

for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or

 

  (b)

as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,

except that this does not exempt a Creditor Party or a receiver or manager from liability for losses shown to have been caused by the gross negligence or the wilful misconduct of such Creditor Party’s own officers and employees or (as the case may be) such receiver’s or manager’s own partners or employees.

 

19.9

Relevant Persons. In this Clause 19 a “Relevant Person” means the Borrowers and the Corporate Guarantor or any other person who provides a mortgage, charge, pledge, maritime or other lien or other security interest of any kind as security for the Borrowers’ obligations under this Agreement and the Finance Documents.

 

19.10

Interpretation. In Clause 19.1(f) (Events of Default) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) (Events of Default) “petition” includes an application.

 

20

FEES AND EXPENSES

 

20.1

Arrangement fee. The Borrowers shall pay to the Arranger on the date of this Agreement a sum in the amount of $208,000 representing its costs and expenses for the evaluation of the loan facility to be made available under the Agreement and the terms on which it shall be made available (as outlined in this Agreement) and the arrangement of the advance of the Loan, whether in whole or in part, together with any tax thereon (if applicable). The evaluation costs and expenses referred to in this Clause must be paid by the Borrowers to the Arranger, whether or not any part of the Commitment is ever advanced and shall be non-refundable.

 

20.2

Commitment fee.

 

  20.2.1

The Borrowers shall pay to the Agent (for the account of the Lenders in proportion to their Commitment) a commitment fee of 0.50% per annum on the undrawn amount of the Loan commencing on 25 June 2020 and ending on the last day of the Availability Period.

 

  20.2.2

The Borrowers shall pay the accrued commitment fee on the last day of each successive period of three (3) months beginning on 25 June 2020 which ends during the Availability Period, on the last day of the Availability Period, on the Drawdown Date and (on any cancelled amount of the relevant Lender’s Commitment) at the time such cancellation is effective.

 

  20.2.3

The fee referred to in this Clause 20.2 must be paid by the Borrowers to the Agent, whether or not any part of the Commitment is ever advanced and shall be non-refundable.

 

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20.3

Costs of negotiation, preparation etc. The Borrowers shall pay to the Agent on its demand the amount of all expenses incurred by the Agent or the Security Agent in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document.

 

20.4

Costs of variations, amendments, enforcement etc. The Borrowers shall pay to the Agent, on the Agent’s demand, the amount of all expenses incurred by any Creditor Party in connection with:

 

  (a)

any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made;

 

  (b)

any consent or waiver by the Lenders concerned under or in connection with a Finance Document, or any request for such a consent or waiver;

 

  (c)

the valuation of any security provided or offered under Clause 15 (Security cover) or any other matter relating to such security;

 

  (d)

where the Agent, in its opinion, considers that there has been a material change to the insurances in respect of either Ship, the review of the insurances or either Ship pursuant to Clause 13.18 (Review of insurance assignments);

 

  (e)

any step taken by any Lender concerned with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose.

There shall be recoverable under paragraph (d) the full amount of all legal expenses, whether or not such as would be allowed under rules of court or any taxation or other procedure carried out under such rules.

 

20.5

Documentary taxes. The Borrowers shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent’s demand, fully indemnify each Creditor Party against any liabilities and expenses resulting from any failure or delay by the Borrowers to pay such a tax.

 

20.6

Certification of amounts. A notice which is signed by two officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall, save for manifest error, be prima facie evidence that the amount, or aggregate amount, is due.

 

21

INDEMNITIES

 

21.1

Indemnities regarding borrowing and repayment of Loan. The Borrowers shall fully indemnify the Agent and each Lender on the Agent’s demand and the Security Agent on its demand in respect of all expenses, liabilities and losses which are incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:

 

  (a)

the Loan not being borrowed on the date specified in the relevant Drawdown Notice for any reason other than a default by the Lender claiming the indemnity;

 

  (b)

Breakage Costs;

 

  (c)

the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;

 

56


  (d)

any failure by the Borrowers to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7 (Default Interest);

 

  (e)

the occurrence and/or continuance of an Event of Default or a Potential Event of Default and/or the acceleration of repayment of the Loan under Clause 19 (Events of Default); and

 

  (0

in respect of any tax (other than tax on its overall net income) for which a Creditor Party is liable in connection with any amount paid or payable to that Creditor Party (whether for its own account or otherwise) under any Finance Document.

 

21.2

Breakage costs. Without limiting its generality, Clause 21.1 (Indemnities regarding borrowing and repayment of Loan) covers any liability, expense or loss, including a loss of a prospective profit, incurred by a Lender:

 

  (a)

in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of the Loan and/or any overdue amount (or an aggregate amount which includes the Loan or any overdue amount); and

 

  (b)

in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one.

 

21.3

Miscellaneous indemnities. The Borrowers shall fully indemnify each Creditor Party severally on their respective demands in respect of all claims, demands, proceedings, liabilities, taxes, losses and expenses of every kind (“liability items”) which may be made or brought against, or incurred by, any Creditor Party, in any country, in relation to:

 

  (a)

any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Agent or any other Creditor Party or by any receiver appointed under a Finance Document;

 

  (b)

any other event, matter or question which occurs or arises at any time during the Security Period and which has any connection with, or any bearing on, any Finance Document, any payment or other transaction relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created (or intended to be created) by a Finance Document,

other than liability items which are shown to have been caused by the gross negligence or the wilful misconduct of the Agent’s or (as the case may be) the Security Agent’s own officers or employees.

 

21.4

Extension of indemnities; environmental indemnity. Without prejudice to its generality, Clause 21.3

(Miscellaneous indemnities) covers:

 

  (a)

any liability items which arise, or are asserted, under or in connection with any law or any regulation relating to safety at sea, pollution or the protection of the environment, including but not limited to the ISM Code and the ISPS Code; and

 

  (b)

any expenses incurred by a Creditor Party as a result of any fax or email communication purporting to have bccn sent by the Borrowers to that Creditor Party fraudulently or without proper authorisation.

 

57


21.5

Currency indemnity. If any sum due from the Borrowers or any Security Party to a Creditor Party under a Finance Document or under any order or judgment relating to a Finance Document has to be converted from the currency in which the Finance Document provided for the sum to be paid (the “Contractual Currency”) into another currency (the “Payment Currency”) for the purpose of:

 

  (a)

making or lodging any claim or proof against the Borrowers or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or

 

  (b)

obtaining an order or judgment from any court or other tribunal; or

 

  (c)

enforcing any such order or judgment,

the Borrowers shall indemnify the Creditor Party concerned against the loss arising when the amount of the payment actually received by that Creditor Party is converted at the available rate of exchange into the Contractual Currency.

In this Clause 21.5, the “available rate of exchange” means the rate at which the Creditor Party concerned is able at the opening of business (London time) on the Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment Currency.

This Clause 21.5 creates a separate liability of the Borrowers which is distinct from its other liabilities under the Finance Documents and which shall not be merged in any judgment or order relating to those other liabilities.

 

21.6

Certification of amounts. A notice which is signed by 2 officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates the matters in respect of which the amount, or aggregate amount, is due shall, save for manifest error, be prima facie evidence that the amount, or aggregate amount, is due.

 

21.7

Sums deemed due to a Lender. For the purposes of this Clause 21, a sum payable by the Borrowers to the Agent or the Security Agent for distribution to a Lender shall be treated as a sum due to that Lender.

 

21.8

Notice of prepayment. If the Borrowers are not willing to continue to pay an indemnity in respect of Tax under Clause 21.1 (Indemnities regarding borrowing and repayment of Loan), the Borrowers may give to the Agent no less than 30 days’ notice of their intention to prepay the Contribution of any Lender whose Contribution is giving rise to such tax indemnity (a “Relevant Tax Lender”), at the end of an Interest Period.

 

21.9

Prepayment; termination of Commitment. A notice under Clause 21.8 (Notice of prepayment) shall be irrevocable; the Agent shall promptly notify the Relevant Tax Lender of the Borrowers’ notice of intended prepayment; and:

 

  (a)

on the date on which the Agent serves that notice, the Commitment of the Relevant Tax Lender shall be cancelled; and

 

  (b)

on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Relevant Tax Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the relevant Margin.

 

22

NO SET-OFF OR TAX DEDUCTION

 

22.1

No deductions. All amounts due from the Borrowers under a Finance Document 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 Borrowers are required by law to make.

 

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22.2

Grossing-up for taxes. If a Borrower is required by law to make a tax deduction from any payment:

 

  (a)

that Borrower shall notify the Agent as soon as it becomes aware of the requirement;

 

  (b)

that Borrower shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and

 

  (c)

the amount due in respect of the payment shall be increased by the amount necessary to ensure that each 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.

 

22.3

Evidence of payment of taxes. Within 1 month after making any tax deduction, the Borrower concerned shall deliver to the Agent documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.

 

22.4

Exclusion of tax on overall net income. In this Clause 22 “tax deduction” means any deduction or withholding for or on account of any present or future tax except tax on a Creditor Party’s overall net income.

 

22.5

Notice of prepayment. If the Borrowers are not willing to continue to pay an increased amount under clause 22.2 (Grossing-up for taxes), the Borrowers may give the Agent not less than is 30 days’ notice of their intention to prepay the Contribution of any Lender whose Contribution is giving rise to such increased payment (a “Relevant Lender”), at the end of an Interest Period.

 

22.6

Prepayment; termination of Commitment. A notice under Clause 22.5 (Notice of prepayment) shall be irrevocable; the Agent shall promptly notify the Relevant Lender of the Borrowers’ notice of intended prepayment; and:

 

  (a)

on the date on which the Agent serves that notice, the Commitment of the Relevant Lender shall be cancelled; and

 

  (b)

on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Relevant Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the relevant Margin

 

22.

7 FATCA Deduction

 

  (a)

a party to any Finance Document may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no party to any Finance Document shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction;

 

  (b)

a party to any Finance Document shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction) notify the party to whom it is making the payment and, in addition, shall notify the Borrowers, the Agent and the other Creditor Parties.

 

23

ILLEGALITY, ETC

 

23.1

Illegality. This Clause 23 applies if a Lender (the “Notifying Lender”) notifies the Agent that it has become, or will with effect from a specified date, become:

 

  (a)

unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or

 

  (b)

contrary to, or inconsistent with, any regulation,

 

59


for the Notifying Lender to maintain or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement.

 

23.2

Notification of illegality. The Agent shall promptly notify the Borrowers, the Security Parties, the Security Agent and the other Lenders of the notice under Clause 23.1 (Illegality) which the Agent receives from the Notifying Lender.

 

23.3

Prepayment; termination of Commitment. On the Agent notifying the Borrowers under Clause 23.2 (Notification of illegality), the Lenders’ Commitment shall terminate; and thereupon or, if later, on the date specified in the Notifying Lender’s notice under Clause 23.1 (Illegality)as the date on which the notified event would become effective the Borrowers shall prepay the Loan in full in accordance with Clause 8 (Repayment and Prepayment).

 

23.4

Mitigation. If circumstances arise which would result in a notification under Clause 23.1 (Illegality) then, without in any way limiting the rights of the Notifying Lender under Clause 23.3 (Prepayment, termination of Commitment), the Notifying Lender shall use reasonable endeavours to transfer its obligations, liabilities and rights under this Agreement an d the Finance Documents to another office or financial institution not affected by the circumstances but the Notifying Lender shall not be under any obligation to take any such action if, in its opinion, to do would or might:

 

  (a)

have an adverse effect on its business, operations or financial condition; or

 

  (b)

involve it in any activity which is unlawful or prohibited or any activity that is contrary to, or inconsistent with, any regulation; or

 

  (c)

involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.

 

24

INCREASED COSTS

 

24.1

Increased costs. This Clause 24 applies if a Lender (the “Notifying Lender”) notifies the Agent that the Notifying Lender considers that as a result of:

 

  (a)

the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on that Lender’s overall nct income); or

 

  (b)

the effect of complying with any regulation (including, but not limited to, the “International Convergence of Capital Standards, a Revised Framework” published by the Basle Committee on Banking Supervision in June 2004 as implemented in the EU by the Capital Requirements Directive (2006/48/EC and 2006/49/EC) (or any subsequent amendment or substitute agreement) or pursuant to Basel III, CRD IV and CRR and any other which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement, is that the Notifying Lender (or a parent company of it) has incurred or will incur an “increased cost”, that is to say,:

 

  (i)

an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or a Transfer Certificate, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums; or

 

  (ii)

a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;

 

60


  (iii)

an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender’s Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or

 

  (iv)

a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement, but not an item attributable to a change in the rate of tax on the overall net income of the Notifying Lender (or a parent company of it) or an item covered by the indemnity for tax in Clause 21.1 (Indemnities regarding borrowing and repayment of Loan) or by Clause 22 (No set-off or tax deduction).

For the purposes of this Clause 24.1 the Notifying Lender 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.

Provided that the Notifying Lender shall try to ensure that any loss suffered by the Borrowers as a result of the circumstances referred to in this Clause 24 are kept to a minimum.

 

24.2

Notification to Borrowers of claim for increased costs. The Agent shall promptly notify the Borrowers and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1 (Increased Costs).

 

24.3

Payment of increased costs. The Borrowers shall pay to the Agent, on the Agent’s demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrowers that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.

 

24.4

Notice of prepayment. If the Borrowers are not willing to continue to compensate the Notifying Lender for the increased cost under Clause 24.3 (Payment of increased costs), the Borrowers may give the Agent not less than is 30 days’ notice of its intention to prepay the Notifying Lender’s Contribution at the end of an Interest Period.

 

24.5

Prepayment; termination of Commitment. A notice under Clause 24.4 (Notice of Prepayment) shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers’ notice of intended prepayment; and:

 

  (a)

on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and

 

  (b)

on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the Margin.

 

24.6

Application of prepayment. Clause 8 (Repayment and Prepayment) shall apply in relation to the prepayment.

 

25

SET-OFF/BAIL-IN

 

25.1

Application of credit balances. Each Creditor Party may 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 either Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrowers to that Creditor Party under any of the Finance Documents; and

 

  (b)

for that purpose:

 

  (i)

break, or alter the maturity of, all or any part of a deposit of either Borrower;

 

61


  (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 Creditor Party concerned considers appropriate.

 

25.2

Existing rights unaffected. No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1 (Application of credit balances); 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 a Creditor Party is entitled (whether under the general law or any document).

 

25.3

Sums deemed due to a Lender. For the purposes of this Clause 25, a sum payable by the Borrowers to the Agent or the Security Agent for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender’s proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.

 

25.4

Bail-in

Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:

 

  (a)

any Bail-In Action in relation to any such liability, including (without limitation):

 

  i.

a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;

 

  ii.

a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and

 

  iii.

a cancellation of any such liability; and

 

  (b)

a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.

In this Clause:

“Article 55 BRRD” means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.

“Bail-In Action” means the exercise of any Write-down and Conversion

Powers. “Bail-In Legislation” means:

 

  (a)

in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to lime; and

 

  (b)

in relation to any state other than such an EEA Member Country or (to the extent that the United Kingdom is not such an EEA Member Country) the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.

“EEA Member Country” means any member state of the European Union, Iceland, Liechtenstein and Norway.

“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time. “Party” means a party to this Agreement.

 

62


“Resolution Authority” means any body which has authority to exercise any Write-down and Conversion Powers.

“UK Bail-In Legislation” means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other insolvency proceedings).

“Write-down and Conversion Powers” means:

 

  (a)

in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

 

  (b)

in relation to any other applicable Bail-In Legislation:

 

  i.

any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers; and

 

  ii.

any similar or analogous powers under that Bail-In Legislation; and

 

  (c)

in relation to any UK Bail-In Legislation:

 

  i.

any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

 

  ii.

any similar or analogous powers under that UK Bail-In Legislation.

 

26

TRANSFERS AND CHANGES IN LENDING OFFICES

 

26.1

Transfer by a Borrower. No Borrower may, without the consent of the Agent, given on the instructions of all the Lenders:

 

  (a)

transfer any of its rights, liabilities or obligations under any Finance Document; or

 

  (b)

enter into any merger, de-merger or other reorganisation, or carry out any other act, as a result of which any of its rights or liabilities would vest in, or pass to, another person.

 

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26.2

Transfer by a Lender. Subject to Clause 26.4 (Effective Date of Transfer Certificate), a Lender (the “Transferor Lender”) may at any time, without the consent of, or prior notice to, the Borrowers and at no cost of the Borrowers, transfer:

 

  (a)

its rights in respect of all or part of its Contribution; or

 

  (b)

its obligations in respect of all or part of its Commitment; or

 

  (c)

a combination of (a) and (b),

to be (in the case of its rights) transferred to, or (in the case of its obligations) assumed by, another bank or financial institution engaged in maritime shipping finance (a “Transferee Lender”) by delivering to the Agent a completed certificate in the form set out in Schedule 4 with any modifications approved or required by the Agent (a “Transfer Certificate”) executed by the Transferor Lender and the Transferee Lender.

However any rights and obligations of the Transferor Lender in its capacity as Agent or Security Agent will have to be dealt with separately in accordance with the Agency and Trust Deed.

 

26.3

Transfer Certificate, delivery and notification. As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):

 

  (a)

sign the Transfer Certificate on behalf of itself, the Borrowers, the Security Parties, the Approved Managers and each of the Creditor Parties;

 

  (b)

on behalf of the Transferee Lender, send to the Borrowers, each Approved Manager and each Security Party letters or faxes or e-mails notifying them of the Transfer Certificate and attaching a copy of it; and

 

  (c)

send to the Transferee Lender copies of the letters or faxes or e-mails sent under paragraph (b) above.

 

26.4

Effective Date of Transfer Certificate. A Transfer Certificate shall become effective on the date,

 

if

any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent under Clause 26.3 (Transfer Certificate, delivery and notification) on or before that date.

 

26.5

No transfer without Transfer Certificate. No assignment or transfer of any right or obligation of a Lender under any Finance Document shall be binding on, or effective in relation to, the Borrowers, any Security Party, an Approved Manager the Agent or the Security Agent unless it is effected, evidenced or perfected by a Transfer Certificate.

 

26.6

Lender re-organisation; waiver of Transfer Certificate. However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the “successor”), the Agent may, if it sees fit, by notice to the successor and the Borrowers and the Security Agent waive the need for the execution and delivery of a Transfer Certificate; and, upon service of the Agent’s notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.

 

26.7

Effect of Transfer Certificate. A Transfer Certificate shall take effect in accordance with English law as follows:

 

  (a)

to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents shall he assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender’s title and of any rights or equities which a Borrower or any Security Party or an Approved Manager had against the Transferor Lender;

 

64


  (b)

the Transferor Lender’s Commitment shall be discharged to the extent specified in the Transfer Certificate;

 

  (c)

the Transferee Lender shall become a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;

 

  (d)

the Transferee Lender shall become bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Agent and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender shall cease to be bound by them;

 

  (e)

any part of the Loan which the Transferee Lender advances after the Transfer Certificate’s effective date shall rank in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor’s title and any rights or equities of the Borrowers or any Security Party or an Approved Manager against the Transferor Lender had not existed;

 

  (f)

the Transferee Lender shall become entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.5 (Market Disruption Non Availability) and Clause 20 (Fees and Expenses), and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender shall cease to be entitled to them; and

 

  (g)

in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.

The rights and equities of the Borrowers or any Security Party or an Approved Manager referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.

 

26.8

Maintenance of register of Lenders. During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 26.4 (Effective Date of Transfer Certificate) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Agent and the Borrowers during normal banking hours, subject to receiving at least 3 Business Days prior notice.

 

26.9

Reliance on register of Lenders. The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.

 

26.10

Authorisation of Agent to sign Transfer Certificates. The Borrowers, the Security Agent and each Lender irrevocably authorise the Agent to sign Transfer Certificates on its behalf.

 

26.11

Registration fee. In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $2,500 from the Transferee Lender.

 

65


26.12

Sub-participation; subrogation assignment. A Lender may sub-participate all or any part of its rights and/or obligations under or in connection with the Finance Documents without the consent of the Borrowers, any Security Party, an Approved Manager, the Agent or the Security Agent (but with prior notice to the Borrowers and the Corporate Guarantor); and the Lenders may assign, in any manner and terms agreed by the Agent and the Security Agent, all or any part of those rights to an insurer or surety who has become subrogated to them.

 

26.13

Disclosure of information. The Borrowers irrevocably authorise each Creditor Party to give, divulge and reveal from time to time information and details relating to its accounts, the Ships, the Corporate Guarantor, the Finance Documents, the Loan and Commitment and any other agreement entered into by the Borrowers and/or the Corporate Guarantor or information provided by the Borrowers and/or the Corporate Guarantor in connection with the Finance Documents to:

 

  (a)

any public or internationally recognised authorities that are entitled to and have requested to obtain such information and to whom it is mandatory to provide such information;

 

  (b)

that Creditor Party’s head office, branches and affiliates and professional advisors;

 

  (c)

any other parties to the Finance Documents;

 

  (d)

a rating agency or their professional advisers;

 

  (e)

any person with whom they propose to enter (or contemplate entering) into contractual relations in relation to the Loan and/or Commitment; and

 

  (f)

any other person regarding the funding, refinancing, transfer, assignment, sale, sub-participation or operational arrangement or other transaction in relation thereto, including without limitation, for purposes in connection with a securitisation (or similar transaction) or any enforcement, preservation, assignment, transfer, sale or sub-participation of any of that Creditor Party’s rights and obligations.

In relation to paragraphs (b) to (f) (inclusive) above of this Clause 26.13 (Disclosure of information) the Creditor Parties undertake that a confidentiality agreement will be entered into between the Creditor Parties and such relevant persons.

 

26.14

Change of lending office. A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:

 

  (a)

the date on which the Agent receives the notice; and

 

  (b)

the date, if any, specified in the notice as the date on which the change will come into effect.

 

26.15

Notification. On receiving such a notice, the Agent shall notify the Borrowers and the Security Agent; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.

 

26.16

Securitisation. A Lender may include all or any part of its Contributions in a securitisation or similar transaction without the consent of the Borrowers or any Security Party or an Approved Manager. The Borrowers will (and shall procure that any Security Party and any Approved

Manager will) assist that Lender as necessary to achieve a successful securitisation (or similar transaction) Provided that the Borrowers shall not be required to bear any costs related to any such securitisation and need only provide such information which any third parties may reasonably request.

 

26.17

Security over Lenders’ rights. In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from the Borrowers or any Security Party or an Approved Manager, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

66


(a)

any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and

 

(b)

in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, except that no such charge, assignment or Security Interest shall:

 

  (i)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for that Lender as a party to any of the Finance Documents; or

 

  (ii)

require any payments to be made by the Borrowers or any Security Party or an Approved Manager or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.

 

27

VARIATIONS AND WAIVERS

 

27.1

Variations, waivers etc. by Majority Lenders. Subject to Clause 27.2 (Variations, waivers etc. requiring agreement of all Lenders), a document shall be effective to vary, waive, suspend or limit any provision of a Finance Document, or any Creditor Party’s rights or remedies under such a provision or the general law, only if the document is signed, or specifically agreed to by fax, by the Borrowers, by the Agent on behalf of the Majority Lenders, by the Agent and the Security Agent in their own rights, and, if the document relates to a Finance Document to which a Security Party is party, by that Security Party or the Approved Manager (as applicable).

 

27.2

Variations, waivers etc. requiring agreement of all Lenders. However, as regards the following, Clause 27.1 (Variations, waivers etc. by Majority Lenders) applies as if the words “by the Agent on behalf of the Majority Lenders” were replaced by the words “by or on behalf of every Lender”:

 

  (a)

a change in the Margin or in the definition of LIBOR;

 

  (b)

a change to the date for, the amount of, any payment of principal, interest, fees, or other sum payable under this Agreement;

 

  (c)

a change to any Lender’s Commitment;

 

  (d)

an extension of Availability Period;

 

  (e)

a change to the definition of “Majority Lenders” or “Finance Documents”;

 

  (f)

a change to the preamble or to Clauses 2 (Loan Facility), 3 (Position of the Lenders etc.), 4 (Drawdown), 5.1 (Payment of normal interest), 17 (Application of Receipts), 18 (Application of Earnings) or 30 (Law and Jurisdiction);

 

  (g)

a change to this Clause 27;

 

  (h)

any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; and

 

  (i)

any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender’s consent is required.

 

67


27.3 Exclusion of other or implied variations. Except for a document which satisfies the requirements of Clauses 27.1 (Variations, waivers etc. by Majority Lenders) and 27.2 (Variations, waivers etc. requiring agreement of all Lenders), no document, and no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:

 

  (a)

a provision of this Agreement or another Finance Document; or

 

  (b)

an Event of Default; or

 

  (c)

a breach by a Borrower or a Security Party or an Approved Manager of an obligation under a Finance Document or the general law; or

 

  (d)

any right or remedy conferred by any Finance Document or by the general law,

and there shall not be implied into any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable time.

 

27.4

Replacement of Screen Rate.

If a Screen Rate Replacement Event has occurred in relation to the Screen Rate, any amendment or waiver which relates to:

 

  (a)

providing for the use of a Replacement Benchmark; and

 

  (    )

 

  (i)

aligning any provision of any Finance Document to the use of that Replacement Benchmark ;

 

  (ii)

enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);

 

  (iii)

implementing market conventions applicable to that Replacement Benchmark;

 

  (iv)

providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or

 

  (v)

adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Borrower.

 

28

NOTICES

 

28.1

General. Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter or fax or email; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.

 

68


28.2

Addresses for communications. A notice shall be sent:

 

(a)   to the Borrowers:

  

c/o Navios Tankers Management Inc.

  

85 Akti Miaouli

  

Piraeus

  

Greece

  
  

Fax No: 30 210 453 1984

  

Attn: Vasiliki Papaefthymiou

 

(b)   to a Lender:

  

At the address below its name in Schedule 1 or (as the case may require) in the relevant Transfer Certificate.

  

 

(c)   to the Agent, Arranger and the Security Agent

  

Eurobank S.A.

  

83 Akti Miaouli & Flessa Street 5th floor

  

185 38 Piraeus

Greece

  
  

Attn:    Shipping Unit

  

Fax no: 210 458 7877

or to such other address as the relevant party may notify the Agent or, if the relevant party is the Agent or the Security Agent, the Borrowers, the Lenders and the Security Parties.

 

28.3

Effective date of notices. Subject to Clauses 28.4 (Service outside business hours) and 28.5 (Illegible notices):

 

  (a)

a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; and

 

  (b)

a notice which is sent by fax or email shall be deemed to be served, and shall take effect, 2 hours after its transmission is completed.

 

28.4

Service outside business hours. However, if under Clause 28.3 (Effective date of notices) a notice would be deemed to be served:

 

  (a)

on a day which is not a business day in the place of receipt; or

 

  (b)

on such a business day, but after 5 p.m. local time,

the notice shall (subject to Clause 28.5 (Illegible notices) be deemed to be served, and shall take effect, at 9 a.m. on the next day which is such a business day.

 

28.5

Illegible notices. Clauses 28.3 (Effective date of notices) and 28.4 (Service outside business hours) do not apply if the recipient of a notice notifies the sender within one hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.

 

28.6

Valid notices. A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:

 

  (a)

the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or

 

  (b)

in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.

 

69


28.7

English language. Any notice under or in connection with a Finance Document shall he in English.

 

28.8

Meaning of “notice”. In this Clause “notice” includes any demand, consent, authorisation, approval, instruction, waiver or other communication.

 

29

S UPPL E ME NT AL

 

29.1

Rights cumulative, non-exclusive. The rights and remedies which the Finance Documents give to each Creditor Party are:

 

  (a)

cumulative;

 

  (b)

may be exercised as often as appears expedient; and

 

  (c)

shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.

 

29.2

Severability of provisions. If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.

 

29.3

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

 

29.4

Counterparts. A Finance Document may be executed in any number of counterparts.

 

30

LAW AND JURISDICTION

 

30.1

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

 

30.2

Exclusive English jurisdiction. Subject to Clause 30.3 (Choice of forum for the exclusive benefit of the Creditor Parties), the courts of England shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement (or any non-contractual obligation arising out of or in connection with this Agreement).

 

30.3

Choice of forum for the exclusive benefit of the Creditor Parties. Clause 30.2 (Exclusive English jurisdiction) is for the exclusive benefit of the Creditor Parties, each of which reserves the right:

 

  (a)

to commence proceedings in relation to any matter which arises out of or in connection with this Agreement in the courts of any country other than England and which have or claim jurisdiction to that matter; and

 

  (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.

The Borrowers 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 Agreement.

 

30.4

Process agent. Each Borrower irrevocably appoints Hill Dickinson LLP at present of Broadgate Tower, 20 Primrose Street, London EC2A 2EW, England, 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 Agreement.

 

70


30.5

Creditor Party rights unaffected. Nothing in this Clause 30 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.

 

30.6

Meaning of “proceedings”. In this Clause 30, “proceedings” means proceedings of any kind, including an application for a provisional or protective measure.

 

71


EXECUTION PAGE

 

BORROWERS              
SIGNED by GEORGIOS PANAGAKIS    )           
for and on behalf of    )                /s/ GEORGIOS PANAGAKIS   
APHRODITE SHIPPING CORPORATION    )           
in the presence of:    )           

/s/ Victoria Liaou

             

Victoria Liaou

             

Piraeus, Greece

             
SIGNED by GEORGIOS PANAGAKIS    )           
for and on behalf of    )                /s/ GEORGIOS PANAGAKIS   
DIONE SHIPPING CORPORATION    )           
in the presence of:    )           

/s/ Victoria Liaou

             

Victoria Liaou

             

Piraeus, Greece

             
LENDERS                                   
SIGNED by STAVROS GIAKOS              
and by MARIA GRIPAIOU    )           
for and on behalf of    )   

/s/ STAVROS GIAKOS        

    

/s/ MARIA GRIPAIOU        

  
EUROBANK S.A.    )    STAVROS GIAKOS      MARIA GRIPAIOU   
in the presence of:    )           

/s/ Panagiotis Fokas

             

Panagiotis Fokas

             

Piraeus, Greece

             
ARRANGER              
SIGNED by STAVROS GIAKOS              
and by MARIA GRIPAIOU    )           
for and on behalf of    )   

/s/ STAVROS GIAKOS

    

/s/ MARIA GRIPAIOU

  
EUROBANK S.A.    )    STAVROS GIAKOS      MARIA GRIPAIOU   
in the presence of:    )           

/s/ Panagiotis Fokas

             

Panagiotis Fokas

             

Piraeus, Greece

             
AGENT              
SIGNED by STAVROS GIAKOS              
and by MARIA GRIPAIOU    )           
for and on behalf of    )   

/s/ STAVROS GIAKOS

    

/s/ MARIA GRIPAIOU

  
EUROBANK S.A.    )    STAVROS GIAKOS      MARIA GRIPAIOU   
in the presence of:    )           

/s/ Panagiotis Fokas

             

Panagiotis Fokas

             

Piraeus, Greece

             
SECURITY AGENT              
SIGNED by STAVROS GIAKOS              
and by MARIA GRIPAIOU    )           
for and on behalf of    )   

/s/ STAVROS GIAKOS

    

/s/ MARIA GRIPAIOU

  
EUROBANK S.A.    )    STAVROS GIAKOS      MARIA GRIPAIOU   
in the presence of:    )           

/s/ Panagiotis Fokas

             

Panagiotis Fokas

             

Piraeus, Greece

             

 

72

EX-4.4

Exhibit 4.4

Dated 26 June 2020

CERULEAN SHIPPING CORPORATION

CADMIUM SHIPPING CORPORATION

CELADON SHIPPING CORPORATION

BUFF SHIPPING CORPORATION

BRANDEIS SHIPPING CORPORATION

BOYSENBERRY SHIPPING CORPORATION and

BOLE SHIPPING CORPORATION

as joint and several Borrowers

and

THE BANKS AND FINANCIAL INSTITUTIONS

listed in Schedule 1

as Lenders

and

HAMBURG COMMERCIAL BANK AG

as Agent, Mandated Lead Arranger

and Security Trustee

LOAN AGREEMENT

relating to a senior secured term

loan facility of up to US$41,700,000

to provide finance secured on seven container vessels


Index

 

Clause        Page  

1

 

Intepretation

     1  

2

 

Facility

     21  

3

 

Position of the Lenders

     21  

4

 

Drawdown

     22  

5

 

Interest

     23  

6

 

Interest Periods

     25  

7

 

Default Interest

     26  

8

 

Repayment and Prepayment

     27  

9

 

Conditions Precedent

     30  

10

 

Representations and Warranties

     31  

11

 

General Undertakings

     35  

12

 

Corporate Undertakings

     39  

13

 

Insurance

     40  

14

 

Ship Covenants

     47  

15

 

Security Cover

     53  

16

 

Payments and Calculations

     55  

17

 

Application of Receipts

     57  

18

 

Application of Earnings

     58  

19

 

Events of Default

     60  

20

 

Fees and Expenses

     65  

21

 

Indemnities

     67  

22

 

No Set-Off or Tax Deduction

     70  

23

 

Illegality, etc.

     72  

24

 

Increased Costs

     73  

25

 

Set-Off

     75  

26

 

Transfers and Changes in Lending Offices

     75  

27

 

Variations and Waivers

     81  

28

 

Notices

     83  

29

 

Joint and Several Liability

     86  

30

 

Supplemental

     87  

31

 

Law and Jurisdiction

     87  

Schedules

  

Schedule 1 Lenders and Commitments

     89  

Schedule 2 Drawdown Notice

     90  

Schedule 3 Condition Precedent Documents

     92  

Part A

     92  

Part B

     93  

Schedule 4 Mandatory Cost Formula

     95  

Schedule 5 Transfer Certificate

     97  

Schedule 6 Power of Attorney

     101  

Schedule 7 Details of Ships

     102  

Execution

  

Execution Pages

     103  

 


THIS AGREEMENT is made on 2A} June 2020

PARTIES

CERULEAN SHIPPING CORPORATION, CADMIUM SHIPPING CORPORATION, CELADON SHIPPING CORPORATION, BUFF SHIPPING CORPORATION, BRANDEIS SHIPPING CORPORATION, BOYSENBERRY SHIPPING CORPORATION and BOLE SHIPPING CORPORATION, each a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960, as joint and several Borrowers;

 

(2)

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

 

(3)

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

 

(4)

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

 

(5)

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

BACKGROUND

The Lenders have agreed to make available to the Borrowers a senior secured term loan facility of up to US$41,700,000 in one advance in an amount of up to the lesser of (i) US$41,700,000 and (ii) 57.5 per cent. of the aggregate Initial Market Value of the Ships, for the purpose of partly financing the Initial Market Value of each Ship.

OPERATIVE PROVISIONS

IT IS AGREED as follows:

 

1

INTEPRETATION

 

1.1

Definitions

Subject to Clause 1.5, in this Agreement:

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

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

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

“Additional Minimum Liquidity” has the meaning given in Clause 11.19;

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

 

1


“Affected Lender” has the meaning given in Clause 5.7;

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

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

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

“Applicable Lender” has the meaning given in Clause 5.2;

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

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

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

“Approved Manager” means, in respect of a Ship, Navios Shipmanagement Inc., a corporation domesticated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960 and/or Navios Tankers Management Inc. a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960 and/or Kleimar NV of 5 Suikerrui, 2000 Antwerp, Belgium, or any other company which is a subsidiary or affiliate of Navios Maritime Holdings Inc. or of Angeliki Frangou or any other company which the Agent (acting on the instructions of the Majority Lenders) may approve from time to time as the commercial and/or technical manager of that Ship;

“Approved Manager’s Undertaking” means, in relation to a Ship, a letter of undertaking including (inter alia) an assignment of the Approved Manager’s rights, title and interest in the Insurances of that Ship executed or to be executed by the Approved Manager in favour of the Security Trustee in the Agreed Form agreeing certain matters in relation to the Approved Manager serving as manager and subordinating its rights against that Ship and the Borrower which is the owner thereof to the rights of the Creditor Parties under the Finance Documents and, in the plural, means all of them;

“Assignable Charter” means any time charterparty, consecutive voyage charter or contract of affreightment in respect of a Ship having a duration (or capable of exceeding a duration) equal or more than 12 months and any guarantee of the obligations of the charterer under such charter or any bareboat charter in respect of that Ship and any guarantee of the obligations of the charterer under such bareboat charter, entered or to be entered into by the Borrower which is the owner thereof and a charterer or, as the context may require, bareboat charterer and, in the plural, means all of them;

 

2


“Availability Period” means the period commencing on the date of this Agreement and ending on:

 

  (a)

31 July 2020 (or such later date as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers); or

 

  (b)

if earlier, the date on which the Total Commitments are fully borrowed, cancelled or terminated;

“Balloon Instalment” has the meaning given in Clause 8.1;

“Basel Ill” means, together:

 

  (a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

  (b)

the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement—Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

  (c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”;

“Borrower” means each of Borrower A, Borrower B, Borrower C, Borrower D, Borrower E, Borrower F and Borrower G and, in the plural, means all of them;

“Borrower A” means Cerulean Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Borrower B” means Cadmium Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Borrower C” means Celadon Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Borrower D” means Buff Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Borrower E” means Brandeis Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

 

3


“Borrower F” means Boysenberry Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Borrower G” means Bole Shipping Corporation, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

“Break Costs” has the meaning given in Clause 21.2;

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business:

 

  (a)

in Hamburg, Piraeus, Athens and London regarding the fixing of any interest rate which is required to be determined under this Agreement or any Finance Document;

 

  (b)

in Hamburg, New York and Piraeus in respect of any payment which is required to be made under a Finance Document; and

 

  (c)

in Hamburg, Athens and Piraeus regarding any other action to be taken under this Agreement or any other Finance Document;

“Cancellation Notice” has the meaning given in Clause 8.6;

“Change of Control” means, in relation to:

 

  (a)

a Borrower, a change in:

 

  (i)

the beneficial ownership of any of the shares in that Borrower; or

 

  (ii)

the legal ownership of any of those shares; or

 

  (b)

the Corporate Guarantor, a change which results in Mrs Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary) and/or Navios Maritime Holdings Inc. or any of its affiliates being the ultimate beneficial owner of, or having ultimate control of the voting rights attaching to, less than 20 per cent. of all the issued shares or units as the case may be in the Corporate Guarantor;

“Charterparty Assignment” means, in relation to an Assignable Charter, an assignment of the rights of the Borrower who is a party to that Assignable Charter under that Assignable Charter and any guarantee of such Assignable Charter executed or to be executed by that Borrower in favour of the Security Trustee in the Agreed Form and, in the plural, means all of them;

“Code” means the US Internal Revenue Code of 1986;

“Commitment” means, in relation to a Lender, the amount set opposite its name in Schedule 1, or, as the case may require, the amount specified in the relevant Transfer Certificate, as that amount may be reduced, cancelled or terminated in accordance with this Agreement (and “Total Commitments” means the aggregate of the Commitments of all the Lenders);

 

4


“Compliance Certificate” means a certificate in the form set out in Schedule 1 of the Corporate Guarantee (or in any other form which the Agent approves or requires) to be provided at the times and in the manner set out in Clause 11.20;

“Contractual Currency” has the meaning given in Clause 21.6;

“Contribution” means, in relation to a Lender, the part of the Loan which is owing to that Lender;

“Corporate Guarantee” means a guarantee of the obligations of the Borrowers under this Agreement and the other Finance Documents to which each Borrower is a party, in the Agreed Form;

“Corporate Guarantor” means Navios Maritime Acquisition Corporation, a corporation incorporated in the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH96960;

“Correction Rate” means, at any relevant time in relation to an Applicable Lender, the amount (expressed as a rate per annum) by which that Lender’s Cost of Funding exceeds LIBOR;

“Cost of Funding” means, in relation to a Lender, the rate per annum determined by that Lender to be the rate at which deposits in Dollars are offered to that Lender by leading banks in the Relevant Interbank Market at that Lender’s request at or about the Specified Time on the Quotation Date for an Interest Period and for a period equal to that Interest Period and for delivery on the first Business Day of it, or, if that Lender uses other ways to fund deposits in Dollars, such rate as determined by that Lender to be the Lender’s cost of funding deposits in Dollars for that Interest Period, such determination being conclusive and binding in the absence of manifest error;

“Creditor Party” means the Agent, the Security Trustee, the Mandated Lead Arranger or any Lender, whether as at the date of this Agreement or at any later time and, in the plural, means all of them;

“Deed of Release” means, in relation to each Ship, a deed releasing the Existing Security on that Ship and the obligations of the Borrower owning that Ship under the relevant Existing Loan Agreement in Agreed Form;

“Disruption Event” means either or both of:

 

  (a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

  (b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party:

 

  (I)

from performing its payment obligations under the Finance Documents; or

 

  (ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

 

5


and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted;

“Dollars” and “$” means the lawful currency for the time being of the United States of America;

“Drawdown Date” means the date requested by the Borrowers for the Advance to be borrowed, or (as the context requires) the date on which the Advance is actually borrowed;

“Drawdown Notice” means a notice in the form set out in Schedule 2 (or in any other form which the Agent approves or reasonably requires);

“Earnings” means, in relation to a Ship, all moneys whatsoever which are now, or later become, payable (actually or contingently) to the Borrower owning that Ship or the Security Trustee and which arise out of the use or operation of that Ship, including (but not limited to):

 

  (a)

except to the extent that they fall within paragraph (b);

 

  (i)

all freight, hire and passage moneys;

 

  (ii)

compensation payable to that Borrower or the Security Trustee in the event of requisition of a Ship for hire;

 

  (iii)

remuneration for salvage and towage services;

 

  (iv)

demurrage and detention moneys;

 

  (v)

damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and

 

  (vi)

all moneys which are at any time payable under any Insurances in respect of loss of hire; and

 

  (b)

if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Ship;

“Earnings Account” means, in relation to a Ship, an account in the name of the Borrower owning that Ship with the Account Bank designated “[name of relevant Borrower] - Earnings Account”, or any other account (with that or another office of the Account Bank) which replaces such account and is designated by the Agent as that Earnings Account for the purposes of this Agreement;

“Environmental Claim” means:

 

  (a)

any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or

 

  (b)

any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,

and “claim” means a claim for damages, compensation, fines, penalties or any other payment of any kind whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset;

 

6


“Environmental Incident” means, in relation to a Ship:

 

  (a)

any release of Environmentally Sensitive Material from that Ship; or

 

  (b)

any incident in which Environmentally Sensitive Material is released from a vessel other than that Ship and which involves a collision between that Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which that Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or that Ship and/or the Borrower which is the owner thereof and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

 

  (c)

any other incident in which Environmentally Sensitive Material is released otherwise than from that Ship and in connection with which that Ship is actually or potentially liable to be arrested and/or where the Borrower which is the owner thereof and/or any operator or manager of that Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action;

“Environmental Law” means any law, regulation, convention and agreement relating to pollution or protection of the environment, to the carriage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material;

“Environmentally Sensitive Material” means oil, oil products and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous;

“Event of Default” means any of the events or circumstances described in Clause 19.1;

“Existing Indebtedness” means, at any date in the outstanding Financial Indebtedness under the Existing Loan Agreement;

“Existing Indebtedness Grace Period” means, in relation to the Existing Indebtedness, the period commencing on the date of this Agreement and ending on the Drawdown Date;

“Existing Loan Agreement” means the loan agreement dated 8 June 2015 (as amended and supplemented from time to time) and made between, amongst others, (i) Navios Europe (II) Inc. as borrower and (ii) ABN AMRO Bank N.V. acting through its office at Coolsingel 93, 3012, AE Rotterdam, The Netherlands and Deutsche Bank AG Filiale Deutschlandgeschaft as lender, (iii) ABN AMRO Bank N.V. acting through its office at Coolsingel 93, 3012, AE Rotterdam, The Netherlands and Deutsche Bank AG Filiale Deutschlandgeschaft arrangers, (iv) ABN AMRO Bank N.V. as agent and security trustee, in respect of a secured loan facility in an amount of (originally) up to $135,000,000;

“Existing Security” means, in relation to the Existing Loan Agreement, any Security Interest created to secure the Existing Indebtedness (or any part thereof) arising under the Existing Loan Agreement;

“FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations;

 

7


  (b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;

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

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

“Final Repayment Date” means 31 May 2021;

“Finance Documents” means together:

 

  (a)

this Agreement;

 

  (b)

the Agency and Trust Agreement;

 

  (c)

the Account Pledges;

 

  (d)

the Corporate Guarantee;

 

  (e)

the Mortgages;

 

  (f)

the General Assignments;

 

  (g)

the Charterparty Assignments;

 

  (h)

the Approved Manager’s Undertakings; and

 

  (i)

any other document (whether creating a Security Interest or not) which is executed at any time by a Borrower, the Corporate Guarantor, the Approved Manager or any other person as security for, or to establish any form of subordination or priorities arrangement in relation to, any amount payable to the Lenders under this Agreement or any of the other documents referred to in this definition and, in the singular, means any of them;

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

 

  (a)

for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

 

  (b)

under any loan stock, bond, note or other security issued by the debtor;

 

  (c)

under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

8


  (d)

under a financial lease, a deferred purchase consideration arrangement (in each case, other than in respect of assets or services obtained on normal commercial terms in the ordinary course of business) or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (e)

under any foreign exchange transaction, any interest or currency swap, exchange or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or

 

  (f)

under receivables sold or discounted (other than any receivables to the extent that they are sold on a non-recourse basis); or

 

  (g)

under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within (a) to (f) if the references to the debtor referred to the other person;

“Financial Year” means, in relation to the Corporate Guarantor and the Group, each period of one year commencing on 1 January in respect of which consolidated accounts are or ought to be prepared;

“First Quarter” means the period commencing on Drawdown Date and ending on the date falling three months thereafter;

“Fourth Quarter” means the period commencing on the date falling after the Third Quarter and ending on the earlier of (a) the Final Repayment Date and (b) the date that the Loan has been repaid in full;

“General Assignment” means, in relation to a Ship, a general assignment of (inter olio) the Earnings, the Insurances and any Requisition Compensation relative to that Ship in the Agreed Form and, in the plural, means all of them;

“Group” means the Corporate Guarantor and all subsidiaries directly or indirectly owned by the Corporate Guarantor, including, but not limited to, the Shareholder and the relevant Borrower and “member of the Group” shall be construed accordingly;

“IACS” means the International Association of Classification Societies;

“Indenture” means the indenture dated as of 13 November 2013, as amended and supplemented by six supplemental indentures dated as of 8 January 2014, 20 February 2014, 31 March 2014, 28 May 2014, 4 December 2014 and 17 October 2015, respectively each entered into by the Corporate Guarantor and Navios Acquisition Finance (US) Inc. in respect of the 8.125% First Priority Ship Mortgage Notes due 2021;

“Indenture Guarantee” means a guarantee executed, or as the case may be, to be executed by the Borrower as security for the obligations and liability of the Corporate Guarantor under the Indenture;

“Initial Market Value” means, in relation to a Ship, the Market Value thereof calculated in accordance with the valuation(s) relative thereto referred to in paragraph 5 of Schedule 3, Part B;

“Instalment” has the meaning given in Clause 8.1;

 

9


“Insurances” means, in relation to a Ship:

 

  (a)

all policies and contracts of insurance (including, without limitation, any loss of hire insurance) and any reinsurance, policies or contracts, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, its Earnings or otherwise in relation to it whether before, on or after the date of this Agreement; and

 

  (b)

all rights (including, without limitation, any and all rights or claims which the Borrower owning that Ship may have under or in connection with any cut-through clause relative to any reinsurance contract relating to the aforesaid policies or contracts of insurance) and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement;

“Interest Period” means a period determined in accordance with Clause 6;

“Interpolated Screen Rate” means, in relation to an Interest Period, the rate which results from interpolating on a linear basis between:

 

  (a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than that Interest Period; and

 

  (b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds that Interest Period,

each as of the Specified Time on the Quotation Date for that Interest Period;

“ISM Code” means the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime Organisation as the same may be amended or supplemented from time to time (and the terms “safety management system”, “Safety Management Certificate” and “Document of Compliance” have the same meanings as are given to them in the ISM Code);

“ISPS Code” means the International Ship and Port Facility Security Code as adopted by the International Maritime Organisation, as the same may be amended or supplemented from time to time;

“ISSC” means a valid and current International Ship Security Certificate issued under the ISPS Code;

“Lender” means, subject to Clause 26.6, a bank or financial institution listed in Schedule 1 and acting through its branch indicated in Schedule 1 (or through another branch notified to the Agent under Clause26.15) or its transferee, successor or assign;

“LIBOR” means, for an Interest Period:

 

  (a)

the rate per annum equal to the offered quotation for deposits in Dollars for a period equal to, or as near as possible equal to, the relevant Interest Period which appears on the Screen Rate; or;

 

10


  (b)

(if no Screen Rate is available for that Interest Period), the applicable Interpolated Screen Rate for that Interest Period; or

 

  (c)

if no Screen Rate is available and it is not possible to calculate an Interpolated Screen Rate for that Interest Period, the rate per annum determined by the Agent to be the arithmetic mean (rounded upwards, if necessary, to the nearest fifth decimal point) of the rate(s) per annum notified to the Agent by each, or if there is only one Reference Bank, that Reference Bank as the rate at which deposits in Dollars are offered to that Reference Bank by leading banks in the Relevant Interbank Market at that Reference Bank’s request,

at or about the Specified Time on the Quotation Date for that Interest Period for a period equal to that Interest Period and for delivery on the first Business Day of it and, if any such rate is below zero, LIBOR will be deemed to be zero;

“Liquidity Account” means an account in the joint names of the Borrowers with the Account Bank designated “Bole Shipping Corporation et. al — Liquidity Account”, or any other account (with that or another office of the Account Bank) which replaces such account and is designated by the Agent as the Liquidity Account for the purposes of this Agreement;

“Loan” means the principal amount for the time being outstanding under this Agreement;

“LSW 1189” means the London Standard Wording for marine insurances which incorporates the German Direct Mortgage Clause;

“Major Casualty” means, in relation to a Ship, any casualty to that Ship in respect of which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $500,000 or the equivalent in any other currency;

“Majority Lenders” means:

 

  (a)

before the Advance is made, Lenders whose Commitments total 662/3 per cent. of the Total Commitments; and

 

  (b)

after the Advance is made, Lenders whose Contributions total 66 2/3 per cent. of the Loan;

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

“Mandatory Cost” means the percentage rate per annum calculated by the Agent in accordance with Schedule 4;

“Margin” means 3.75 per cent. per annum;

“Market Value” means, in relation to a Ship, the market value thereof determined in accordance with Clause 15.3;

“Material Adverse Change” means any event or series of events which, in the opinion of the Majority Lenders, is likely to have a Material Adverse Effect;

 

11


“Material Adverse Effect” means, in the reasonable opinion of the Majority Lenders, a material adverse effect on:

 

  (a)

the business, property, assets, liabilities, operations or condition (financial or otherwise) of a Borrower and/or any Security Party taken as a whole;

 

  (b)

the ability of a Borrower, the Approved Manager and/or any Security Party to (i) comply with or perform any of its obligations or (ii) discharge any of its liabilities, under any Finance Document as they fall due; or

 

  (c)

the validity, legality or enforceability of any Finance Document;

“Maximum Advance Amount” means an amount up to the lesser of (i) $41,700,000 and (ii) 57.5 per cent. of the aggregate Initial Market Value the Ships;

“Minimum Liquidity” has the meaning given in Clause 11.19;

“Mortgage” means, in relation to a Ship, the first preferred ship mortgage or, as the case may be, first priority ship mortgage and deed of covenants collateral thereto, on that Ship in the Agreed Form and, in the plural, means all of them;

“Mortgaged Ship” means a Ship which is subject to a Mortgage at the relevant time and, in the plural, means all of them;

“Negotiation Period” has the meaning given in Clause 5.10;

“Notifying Lender” has the meaning given in Clause 21.2, Clause 23.1 or Clause 24.1 as the context requires;

“Participating Member State” means any member state of the European Union that has the Euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union;

“Party” means a party to a Finance Document;

“Payment Currency” has the meaning given in Clause 21.6;

“Permitted Security Interests” means:

 

  (a)

Security Interests created by the Finance Documents;

 

  (b)

liens for unpaid master’s and crew’s wages in accordance with usual maritime practice;

 

  (c)

liens for salvage;

 

  (d)

liens arising by operation of law for not more than one month’s prepaid hire under any charter in relation to a Ship not prohibited by this Agreement;

 

  (e)

liens for master’s disbursements incurred in the ordinary course of trading and any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested by the relevant Borrower in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 14.13(d);

 

12


  (f)

any Security Interest created in favour of a plaintiff or defendant in any proceedings or arbitration as security for costs and expenses while a Borrower is actively prosecuting or defending such proceedings or arbitration in good faith;

 

  (g)

Security Interests arising by operation of law in respect of taxes which are not overdue for payment or in respect of taxes being contested in good faith by appropriate steps and in respect of which appropriate reserves have been made; and

 

  (h)

for the duration of the Existing Indebtedness Grace Period only, Security Interests created in respect of the Existing Indebtedness.

“Pertinent Document” means:

 

  (a)

any Finance Document;

 

  (b)

any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document;

 

  (c)

any other document contemplated by or referred to in any Finance Document; and

 

  (d)

any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c);

“Pertinent Jurisdiction” in relation to a company, means:

 

  (a)

England and Wales;

 

  (b)

the country under the laws of which the company is incorporated or formed;

 

  (c)

a country in which the company has the centre of its main interests or which the company’s central management and control is or has recently been exercised;

 

  (d)

a country in which the overall net income of the company is subject to corporation tax, income tax or any similar tax;

 

  (e)

a country in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; and

 

  (f)

a country the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company, whether as a main or territorial or ancillary proceedings, or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (b) or (c);

“Potential Event of Default” means an event or circumstance which, with the giving of any notice, the lapse of time, a reasonable determination of the Majority Lenders and/or the satisfaction of any other condition, would constitute an Event of Default;

“Prepayment Date” has the meaning given in Clause 15.2;

 

13


“Prepayment Notice” has the meaning given in Clause 8.5(b);

“Quotation Date” means, in relation to any Interest Period (or any other period for which an interest rate is to be determined under any provision of a Finance Document), the day on which quotations would ordinarily be given by leading banks in the Relevant Interbank Market for deposits in the currency in relation to which such rate is to be determined for delivery on the first day of that Interest Period or other period;

“Reference Banks” means, subject to Clause 26.18, together, the Hamburg branch of Hamburg Commercial Bank AG, the head office of any other bank which is a Lender at the relevant time (unless such Lender has advised the Agent in writing that it does not wish to be a Reference Bank) and any of their respective successors;

“Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board;

“Replacement Benchmark” means a benchmark rate which is:

 

  (a)

formally designated, nominated or recommended as the replacement for a Screen Rate by:

 

  (i)

the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

 

  (ii)

any Relevant Nominating Body,

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;

 

  (b)

in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or

 

  (c)

in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Screen Rate.

“Relevant Interbank Market” means the London interbank market;

“Relevant Person” has the meaning given in Clause 19.9;

“Repayment Date” means the date falling three months after the Drawdown Date and each of the two dates falling at three-monthly intervals thereafter and the Final Repayment Date;

“Requisition Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of “Total Loss”;

“Retention Account” means an account in the joint names of the Borrowers with the Account Bank designated “Bole Shipping Corporation et. al — Retention Account”, or any other account (with that or another office of the Account Bank) which replaces this account and is designated by the Agent as the Retention Account for the purposes of this Agreement;

 

14


“Screen Rate” means the London interbank offered rate administered by the ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for Dollars for the relevant period displayed on pages LIBOR01 or LIBOR02 of the Reuters screen (or any replacement Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Reuters. If such page or service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrowers;

“Screen Rate Replacement Event” means, in relation to a Screen Rate:

 

  (a)

the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders, and the Borrowers materially changed;

 

  (b)

 

  (i)

 

  (A)

the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

 

  (B)

information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (ii)

the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (iii)

the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or

 

  (iv)

the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or

 

  (c)

in the opinion of the Majority Lenders and the Borrowers, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

“Second Quarter” means the period commencing on the date falling after the First Quarter and ending on the date falling three months thereafter;

“Secured Liabilities” means all liabilities which the Borrowers, the Security Parties or any of them have, at the date of this Agreement or at any later time or times, under or in connection with any Finance Document or any judgment relating to any Finance Document; and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or

 

15


variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country;

“Security Cover Ratio” means, at any relevant time, the aggregate of (i) the aggregate of the Market Value of the Mortgaged Ships and (ii) the net realisable value of any additional security provided at that time under Clause 15, at that time expressed as a percentage of the Loan;

“Security Interest” means:

 

  (a)

a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind; and

 

  (b)

the rights of a plaintiff under an action in rem;

“Security Party” means the Corporate Guarantor and any other person (except a Creditor Party or the Approved Manager) who, as a surety or mortgagor, as a party to any subordination or priorities arrangement, or in any similar capacity, executes a document falling within the final paragraph of the definition of “Finance Documents”;

“Security Period” means the period commencing on the date of this Agreement and ending on the date on which the Agent notifies the Borrowers, the Security Parties and the other Creditor Parties that:

 

  (a)

all amounts which have become due for payment by a Borrower, the Approved Manager or any Security Party under the Finance Documents have been paid;

 

  (b)

no amount is owing or has accrued (without yet having become due for payment) under any Finance Document;

 

  (c)

neither a Borrower, the Approved Manager nor any Security Party has any future or contingent liability under Clauses 20, 21 or 22 or any other provision of this Agreement or another Finance Document; and

 

  (d)

the Agent, the Mandated Lead Arranger, the Security Trustee and the Majority Lenders do not consider that there is a significant risk that any payment or transaction under a Finance Document would be set aside, or would have to be reversed or adjusted, in any present or possible future bankruptcy of a Borrower, the Approved Manager or a Security Party or in any present or possible future proceeding relating to a Finance Document or any asset covered (or previously covered) by a Security Interest created by a Finance Document;

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

“Servicing Bank” means the Agent or the Security Trustee;

“Shareholder” means Aegean Sea Maritime Holdings Inc., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, the Marshall Islands MH96960;

 

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“Ship” means each of Ship A, Ship B, Ship C, Ship D Ship E, Ship F and Ship G and, in the plural, means all of them;

“Ship A” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship B” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship C” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship D” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship E” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship F” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Ship G” has the meaning ascribed thereto in Schedule 7 (Details of Ships);

“Specified Time” means 11.00 a.m. London time;

“Third Quarter” means the period commencing on the date falling after the Second Quarter and ending on the date falling three months thereafter;

“Top-up Fee” has the meaning ascribed thereto in Schedule 7 (Details of Ships and other definitions);

“Total Loss” means, in relation to a Ship:

 

  (a)

actual, constructive, compromised, agreed or arranged total loss of that Ship;

 

  (b)

any expropriation, confiscation, requisition or acquisition of that Ship, whether for full or part consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority unless it is within one month from the date of such occurrence redelivered to the full control of the Borrower owning that Ship excluding a requisition for hire a fixed period not exceeding 90 days without any right to an extension;

 

  (c)

any condemnation of that Ship by any tribunal or by any person or person claiming to be a tribunal; and

 

  (d)

any arrest, capture, seizure, confiscation or detention of that Ship (including any hijacking or theft) unless it is within the Relevant Period redelivered to the full control of the Borrower owning that Ship;

“Relevant Period” means:

(a) in the case of any arrest, capture, seizure, confiscation or detention of a Ship (including any hijacking or theft), other than piracy, within 90 days; and

(b) in the case of piracy, if the relevant underwriters confirm to the Agent in writing prior to the end of the 90-day period referred to in (i) above that the relevant Ship is subject to an approved piracy insurance cover, the earlier of 270 days after the date on which that Ship is captured by pirates and the date on which the piracy insurance cover expires;

 

17


“Total Loss Date” means, in relation to a Ship:

 

  (a)

in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;

 

  (b)

in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:

 

  (i)

30 days after the date on which a notice of abandonment is given to the insurers; and

 

  (ii)

the date of any compromise, arrangement or agreement made by or on behalf of the Borrower owning that Ship with that Ship’s insurers in which the insurers agree to treat the Ship as a total loss; and

 

  (c)

in the case of any other type of total loss, on the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred;

“Transfer Certificate” has the meaning given in Clause 26.2;

“Trust Property” has the meaning given in clause 3.1 of the Agency and Trust Agreement;

“Underlying Documents” means any Assignable Charters and, in the singular, means any of them;

“US” means the United States of America;

“US GAAP” means generally accepted accounting principles as from time to time in effect in the US; and

“US Tax Obligor” means:

 

  (a)

a Borrower which is resident for tax purposes in the US; or

 

  (b)

a Borrower or a Security Party some or all whose payments under the Finance Documents are from sources within the US for US federal income tax purposes.

 

1.2

Construction of certain terms

In this Agreement:

“administration notice” means a notice appointing an administrator, a notice of intended appointment and any other notice which is required by law (generally or in the case concerned) to be filed with the court or given to a person prior to, or in connection with, the appointment of an administrator;

“approved” means, for the purposes of Clause 13, approved in writing by the Agent at its discretion;

“asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;

 

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“company” includes any partnership, joint venture and unincorporated association;

“consent” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation;

“contingent liability” means a liability which is not certain to arise and/or the amount of which remains unascertained;

“document” includes a deed; also a letter or fax;

“excess risks” means, in relation to a Ship, the proportion of claims for general average, salvage and salvage charges not recoverable under the hull and machinery policies in respect of that Ship in consequence of its insured value being less than the value at which that Ship is assessed for the purpose of such claims;

“expense” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other tax;

“gross negligence” means a form of negligence which is distinct from ordinary negligence, in which the due diligence and care which are generally to be exercised have been disregarded to a particularly high degree, in which the plainest deliberations have not been made and that which should be most obvious to everybody has not been followed;

“law” includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;

“legal or administrative action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;

“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;

“months” shall be construed in accordance with Clause 1.3;

“obligatory insurances” means, in relation to a Ship, all insurances effected, or which the Borrower owning that Ship is obliged to effect in respect of that Ship, under Clause 13 or any other provision of this Agreement or another Finance Document;

“parent company” has the meaning given in Clause 1.4;

“person” includes any individual, any partnership, any company; any state, political subdivision of a state and local or municipal authority; and any international organisation;

“policy” in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;

“protection and indemnity risks” means the usual risks covered by a protection and indemnity association managed in London, including pollution risks and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 1 of the Institute Time Clauses (Hulls) (1/10/82) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision;

 

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“regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency (monetary or otherwise), department, central bank, regulatory, self-regulatory or other authority or organisation;

“subsidiary” has the meaning given in Clause 1.4;

“successor” includes any person who is entitled (by assignment, novation, merger or otherwise) to any person’s rights under this Agreement or any other Finance Document (or any interest in those rights) or who, as administrator, liquidator or otherwise, is entitled to exercise those rights; and in particular references to a successor include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation of it or any other person;

“tax” includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected penalty, interest or fine; and

“war risks” includes the risk of mines and all risks excluded by clause 29 of the International Hull Clauses (1/11/02 or 1/11/03), clause 24 of the Institute Time Clauses (Hulls)(1/11/95) or clause 23 of the Institute Time Clauses (Hulls) (1/10/83).

 

1.3

Meaning of “month”

A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:

 

  (a)

on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or

 

  (b)

on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day,

and “month” and “monthly” shall be construed accordingly.

 

1.4

Meaning of “subsidiary”

A company (S) is a subsidiary of another company (P) if a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P and any company of which S is a subsidiary is a parent company of S.

 

1.5

Geneihral Interpretation

In this Agreement:

 

(a)

references to, or to a provision of, a Finance Document or any other document are references to it as amended or supplemented, whether before the date of this Agreement or otherwise;

 

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(b)

references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Agreement or otherwise;

 

(c)

words denoting the singular number shall include the plural and vice versa; and

 

(d)

Clauses 1.1 to 1.5 apply unless the contrary intention appears.

 

1.6

Headings

In interpreting a Finance Document or any provision of a Finance Document, all clause, sub-clause and other headings in that and any other Finance Document shall be entirely disregarded.

 

2

FACILITY

 

2.1

Amount of facility

Subject to the other provisions of this Agreement, the Lenders shall make available to the Borrowers a senior secured term loan facility of up to $41,700,000 in one Advance.

 

2.2

Lenders’ participations in the Advance

Subject to the other provisions of this Agreement, each Lender shall participate in the Advance in the proportion which, as at the Drawdown Date, its Commitment bears to the Total Commitments.

 

2.3

Purpose of the Advance

The Borrowers undertake with each Creditor Party to use the Advance only for the purpose stated in the preamble to this Agreement.

 

3

POSITION OF THE LENDERS 3.1 Interests several

The rights of the Lenders under this Agreement are several.

 

3.2

Individual right of action

Each Lender shall be entitled to sue for any amount which has become due and payable by the Borrowers to it under this Agreement without joining the Agent, the Security Trustee or any other Lender as additional parties in the proceedings.

 

3.3

Proceedings requiring Majority Lender consent

Except as provided in Clause 3.2, no Lender may commence proceedings against the Borrowers, the Approved Manager or any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.

 

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3.4

Obligations several

The obligations of the Lenders under this Agreement are several; and a failure of a Lender to perform its obligations under this Agreement shall not result in:

 

(a)

the obligations of the other Lenders being increased; nor

 

(b)

a Borrower, the Approved Manager, any Security Party or any other Lender being discharged (in whole or in part) from its obligations under any Finance Document;

and in no circumstances shall a Lender have any responsibility for a failure of another Lender to perform its obligations under this Agreement.

 

4

DRAWDOWN

 

4.1

Request for the Advance

Subject to the following conditions, the Borrowers may request the Advance to be borrowed by ensuring that the Agent receives a completed Drawdown Notice not later than 11.00 a.m. (Hamburg time) three Business Days prior to the Drawdown Date.

 

4.2

Availability

The conditions referred to in Clause 4.1 are that:

 

(a)

a Drawdown Date has to be a Business Day during the Availability Period;

 

(b)

the Advance shall not exceed the Maximum Advance Amount;

 

(c)

any undrawn portion of the Total Commitments in respect of the Advance, upon the determination of the aggregate Initial Market Value of the Ships, shall be automatically cancelled as at the Drawdown Date; and

 

(d)

the amount of the Advance shall not exceed the Total Commitments.

 

4.3

Notification to Lenders of receipt of a Drawdown Notice

The Agent shall promptly notify the Lenders that it has received the Drawdown Notice and shall inform each Lender of:

 

(a)

the amount of the Advance and the Drawdown Date;

 

(b)

the amount of that Lender’s participation in the Advance; and

 

(c)

the duration of the first Interest Period in respect of the Advance.

 

4.4

Drawdown Notice irrevocable

The Drawdown Notice must be signed by a duly authorised signatory of the Borrowers; and once served, the Drawdown Notice cannot be revoked without the prior consent of the Agent, acting on the authority of the Lenders.

 

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4.5

Lenders to make available Contributions

Subject to the provisions of this Agreement, each Lender shall, on and with value on the Drawdown Date, make available to the Agent for the account of the Borrowers the amount due from that Lender on the Drawdown Date under Clause 2.2.

 

4.6

Disbursement of Advance

Subject to the provisions of this Agreement, the Agent shall on the Drawdown Date pay to the Borrowers the amounts which the Agent receives from the Lenders under Clause 4.5 and that payment to the Borrowers shall be made:

 

(a)

to the account which the Borrowers specify in the Drawdown Notice; and

 

(b)

in like funds as the Agent received the payments from the Lenders.

The payment by the Agent under this Clause 4.6 shall constitute the making of the Advance and the Borrowers shall at that time become indebted, as principal and direct obligors, to each Lender in an amount equal to that Lender’s participation in the Advance.

 

5

INTEREST

 

5.1

Payment of normal interest

Subject to the provisions of this Agreement, interest on the Advance in respect of each Interest Period shall be paid by the Borrowers on the last day of that Interest Period.

 

5.2

Normal rate of interest

Subject to the provisions of this Agreement, the rate of interest on the Advance in respect of an Interest Period shall be the aggregate of (i) the Margin, (ii) the Mandatory Cost (if any), (Hi) LIBOR for that Interest Period, (iv) the relevant Top-up Fee and (v) if a Lender (the “Applicable Lender”) notifies the Agent at least 5 Business Days before the start of that Interest Period that its Cost of Funding exceeds LIBOR (including the amount of such excess) on the Quotation Date for that Interest Period, additionally in respect of that Applicable Lender’s Contribution in the relevant Advance, the Correction Rate applicable to the Applicable Lender for that Interest Period.

 

5.3

Payment of accrued interest

In the case of an Interest Period of longer than three months (subject to the prior agreement of the Agent in accordance with Clause 6.2(b)), accrued interest shall be paid every three months during that Interest Period and on the last day of that Interest Period.

 

5.4

Notification of Interest Periods and rates of normal interest

The Agent shall notify the Borrowers and each Lender of:

 

(a)

each rate of interest; and

 

(b)

the duration of each Interest Period,

as soon as reasonably practicable after each is determined.

 

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5.5

Obligation of Reference Banks to quote

A Reference Bank which is a Lender shall use all reasonable efforts to supply the quotation required of it for the purposes of fixing a rate of interest under this Agreement unless that Reference Bank ceases to be a Lender pursuant to Clause 26.18.

 

5.6

Absence of quotations by Reference Banks

If any Reference Bank fails to supply a quotation, the Agent shall determine the relevant LIBOR on the basis of the quotations supplied by the other Reference Bank(s) but if two or more of the Reference Banks fail (or, if at any time there is only one Reference Bank, that Reference Bank fails) to provide a quotation, the relevant rate of interest shall be set in accordance with the following provisions of this Clause 5.

 

5.7

Market disruption

The following provisions of this Clause 5 apply if:

 

(a)

no rate is quoted on the Screen Rate, it is not possible to calculate an Interpolated Screen Rate for that Interest Period and two or more of the Reference Banks do not (or, if at any time there is only one Reference Bank, that Reference Bank does not), before 1.00 p.m. (London time) on the Quotation Date for an Interest Period, provide a quotation to the Agent in order to fix LIBOR; or

 

(b)

at least three Business Days before the start of an Interest Period, the Agent is notified by a Lender (the “Affected Lender”) that for any reason it is unable to obtain Dollars in the Relevant Interbank Market in order to fund its Contribution (or any part of it) during the Interest Period.

 

5.8

Notification of market disruption

The Agent shall promptly notify the Borrowers and each of the Lenders stating the circumstances falling within Clause 5.7 which have caused its notice to be given.

 

5.9

Suspension of drawdown

If the Agent’s notice under Clause 5.8 is served before the Advance is made:

 

(a)

In a case falling within Clause 5.7(a), the Lender’s obligation to make the Advance; and

 

(b)

In a case falling within Clause 5.7(b), the Affected Lender’s obligation to participate in the Advance,

shall be suspended while the circumstances referred to in the Agent’s notice continue.

 

5.10

Negotiation of alternative rate of interest

 

(a)

If the Agent’s notice under Clause 5.8 is served after the Advance is borrowed, the Borrowers, the Agent, the Lenders (subject to Clause 27.5) or (as the case may be) the Affected Lender shall use reasonable endeavours to agree, within 30 days after the date on which the Agent serves its notice under Clause 5.8 (the “Negotiation Period”), an alternative interest rate or (as the case may be) an alternative basis for the Lenders or (as the case may be) the Affected Lender to fund or continue to fund their or its Contribution during the Interest Period concerned.

 

24


(b)

During the Negotiation Period the Agent shall, with the agreement of each Lender or (as the case may be) the Affected Lender, set an interest period and interest rate representing the Cost of Funding of the Lenders or (as the case may be) the Affected Lender in Dollars, in each case as determined by the relevant Lender, or in any available currency of their or its Contribution plus the Margin, the relevant Top-Up Fee and the Mandatory Cost (if any).

 

5.11

Application of agreed alternative rate of interest

Any alternative interest rate or an alternative basis which is agreed during the Negotiation Period shall take effect in accordance with the terms agreed.

 

5.12

Alternative rate of interest in absence of agreement

If an alternative interest rate or alternative basis is not agreed within the Negotiation Period, and the relevant circumstances are continuing at the end of the Negotiation Period, then the procedure provided for in Clause 5.10(b) shall be repeated at the end of the interest period set by the Agent pursuant to that Clause.

 

5.13

Notice of prepayment

It the Borrowers do not agree with an interest rate set by the Agent under Clause 5.12, the Borrowers may give the Agent not less than 5 Business Days’ notice of their intention to prepay the Loan at the end of the interest period set by the Agent.

 

5.14

Prepayment; termination of Commitments

A notice under Clause 5.13 shall be irrevocable; the Agent shall promptly notify the Lenders or (as the case may require) the Affected Lender of the Borrowers’ notice of intended prepayment; and:

 

(a)

on the date on which the Agent serves that notice, the Total Commitments or (as the case may require) the Commitment of the Affected Lender shall be cancelled; and

 

(b)

on the last Business Day of the interest period set by the Agent, the Borrowers shall prepay (without premium or penalty) the Loan or, as the case may be, the Affected Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the Margin, the relevant Top-up Fee and the Mandatory Cost (if any).

 

5.15

Application of prepayment

The provisions of Clause 8 shall apply in relation to the prepayment.

 

6

INTEREST PERIODS

 

6.1

Commencement of Interest Periods

The first Interest Period applicable to the Advance shall commence on the Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.

 

6.2

Duration of normal Interest Periods

Subject to Clauses 6.3 and 6.4, each Interest Period in respect of the Advance shall be:

 

(a)

3 months; or

 

25


(b)

such other period (as proposed by the Borrowers to the Agent not later than 11:00 a.m. (Hamburg time) 5 Business Days before the commencement of the Interest Period in respect of the Advance) as the Agent may, with the authorisation of the Majority Lenders, agree with the Borrowers (failing which the Interest Period shall be three months).

 

6.3

Duration of Interest Periods for Instalments

In respect of an amount due to be repaid under Clause 8 on a particular Repayment Date, an Interest Period shall end on that Repayment Date.

 

6.4

Non-availability of matching deposits for Interest Period selected

If, after the Borrowers have proposed and the Lenders have agreed an Interest Period longer than three months, any Lender notifies the Agent by 11.00 a.m. (Hamburg time) on the third Business Day before the commencement of the Interest Period that it is not satisfied that deposits in Dollars for a period equal to the Interest Period will be available to it in the Relevant Interbank Market when the Interest Period commences, the Interest Period shall be of three months.

 

7

DEFAULT INTEREST

 

7.1

Payment of default interest on overdue amounts

The Borrowers shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by the Borrowers under any Finance Document which the Agent, the Security Trustee or the other designated payee does not receive on or before the relevant date, that is:

 

(a)

the date on which the Finance Documents provide that such amount is due for payment; or

 

(b)

if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or

 

(c)

if such amount has become immediately due and payable under Clause 19.4, the date on which it became immediately due and payable.

 

7.2

Default rate of interest

Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 4.00 per cent. above:

 

(a)

in the case of an overdue amount of principal, the higher of the rates set out at Clauses 7.3(a) and 7.3(b); or

 

(b)

in the case of any other overdue amount, the rate set out at Clause 7.3(b).

 

7.3

Calculation of default rate of interest

The rates referred to in Clause 7.2 are:

 

(a)

the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period applicable to it);

 

26


(b)

the aggregate of the Margin, the relevant Top-up Fee any Correction Rate and the Mandatory Cost (if any) plus, in respect of successive periods of any duration (including at call) up to three months which the Agent may select from time to time:

 

  (i)

LIBOR; or

 

  (H)

if the Agent (after consultation with the Reference Banks) determines that Dollar deposits for any such period are not being made available to any Reference Bank by leading banks in the Relevant Interbank Market in the ordinary course of business, a rate from time to time determined by the Agent by reference to the cost of funds to the Reference Banks from such other sources as the Agent (after consultation with the Reference Banks) may from time to time determine.

 

7.4

Notification of interest periods and default rates

The Agent shall promptly notify the Lenders and the Borrowers of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph 7.3(b) of that Clause; but this shall not be taken to imply that the Borrowers are liable to pay such interest only with effect from the date of the Agent’s notification.

 

7.5

Payment of accrued default interest

Subject to the other provisions of this Agreement, any interest due under this Clause shall be paid on the last day of the period by reference to which it was determined; and the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due.

 

7.6

Compounding of default interest

Any such interest which is not paid at the end of the period by reference to which it was determined shall be compounded every 3 months and shall be payable on demand.

 

8

REPAYMENT AND PREPAYMENT

 

8.1

Amount of Instalments

The Borrowers shall repay the Advance by:

 

  (i)

3 instalments, each of the first and second instalment shall be in the amount of $5,000,000 and the third instalment shall be in the amount of $10,000,000 (each an “Instalment” and, together, the “Instalments”); and

a balloon instalment in the amount of $21,700,000 (the “Balloon Instalment”),

Provided that, if the amount advanced is less than $41,700,000, the aggregate amount of the Instalments and the Balloon Instalment shall be reduced by an amount equal to the undrawn amount on a pro rota basis Provided further that any amount prepaid by the Borrowers pursuant to Clause 8.8 as a result of a sale of Ship shall be used towards reducing any outstanding Instalments or part thereof or, in the event that all Instalments have been repaid, the Balloon Instalment.

 

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8.2

Repayment Dates

The first Instalment in respect of the Advance shall be repaid on the first Repayment Date falling after the Drawdown Date, each subsequent Instalment shall be repaid at three-monthly intervals thereafter and the Balloon Instalment, on the Final Repayment Date.

 

8.3

Final Repayment Date

On the Final Repayment Date, the Borrowers shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.

 

8.4

Voluntary prepayment

Subject to the following conditions, the Borrowers may prepay the whole or any part of the Loan on the last day of an Interest Period or on such other date agreed between the Borrowers and the Agent.

 

8.5

Conditions for voluntary prepayment

The conditions referred to in Clause 8.4 are that:

 

  (a)

a partial prepayment shall be $500,000 or a higher integral multiple thereof (or such other amount acceptable to the Agent in its sole discretion);

 

  (b)

the Agent has received from the Borrowers at least 3 Business Days’ prior irrevocable written notice (each, a “Prepayment Notice”) specifying the amount to be prepaid and the date on which the prepayment is to be made;

 

  (c)

the Borrowers have provided evidence satisfactory to the Agent that any consent required by any Borrower or any Security Party in connection with the prepayment has been obtained and remains in force, and that any regulation relevant to this Agreement which affects any Borrower or any Security Party has been complied with; and

 

  (d)

the Borrowers are in compliance with Clause 8.10 on or prior to the date of prepayment.

 

8.6

Optional facility cancellation

The Borrowers shall be entitled, upon giving to the Agent not less than 5 Business Days’ prior written notice, to cancel, in whole or in part, and, if in part, by an aggregate amount not less than $500,000 or a higher integral multiple thereof (or such other amount acceptable to the Agent in its sole discretion), the undrawn balance of the Total Commitments (the “Cancellation Notice”) which notice shall be irrevocable. Upon such cancellation taking effect on expiry of a Cancellation Notice the several obligations of the Lenders to make their respective Commitments available in relation to the portion of the Total Commitments to which such Cancellation Notice relates shall terminate.

 

8.7

Cancellation Notice or Prepayment Notice

The Agent shall notify the Lenders promptly upon receiving a Cancellation Notice or Prepayment Notice, and shall provide, in the case of a Prepayment Notice, any Lender which so requests with a copy of any document delivered by the Borrowers under Clause 8.5(c).

 

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8.8

Mandatory prepayment

The Borrowers shall be obliged to prepay the Relevant Amount if a Ship:

 

(a)

is sold, on or before the date on which the sale is completed by delivery of the Ship to the buyer; or

 

(b)

becomes a Total Loss, on the earlier of the date falling 90 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss.

In this Clause 8.8:

“Relevant Amount’s means:

 

  (i)

in relation to a sale of a Ship, an amount equal to the higher of: (A) the net sale proceeds of the Ship being sold; and (B) an amount (if any) which, after the application of the prepayment to be made pursuant to this Clause 8.8, results in the Security Cover Ratio being 140 per cent.;

 

  (ii)

in relation to a Total Loss of a Ship, an amount equal to the higher of: (A) the Relevant Fraction of the Loan on the date on which the relevant Ship becomes a Total Loss; and (B) an amount (if any) which, after the application of the prepayment to be made pursuant to this Clause 8.8, results in the Security Cover Ratio being 140 per cent.; or

 

  (Hi)

if the relevant Ship is the last Ship subject to a Mortgage, the whole of the Loan.

“Relevant Fraction” means a fraction of which the numerator is the Market Value of the Ship, which has become a Total Loss and the denominator is the aggregate Market Value of all Mortgaged Ships at the relevant time.

 

8.9

Effect of Prepayment Notice and Cancellation Notice

Neither a Prepayment Notice nor a Cancellation Notice may be withdrawn or amended without the consent of the Agent, given with the authorisation of the Majority Lenders, and:

 

(a)

in the case of a Prepayment Notice, the amount specified in that Prepayment Notice shall become due and payable by the Borrowers on the date for prepayment specified in that Prepayment Notice; and

 

(b)

in the case of a Cancellation Notice, the amount cancelled shall be permanently cancelled and may not be borrowed.

 

8.10

Amounts payable on prepayment

A prepayment shall be made together with accrued interest (and any other amount payable under Clause 21 or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under Clause 21.2) but without premium or penalty.

 

8.11

Application of partial prepayment or cancellation

Each partial prepayment shall be applied:

 

(a)

if made pursuant to Clauses 5.13, 23.3 or 24.6, pro rata against the Instalments and the Balloon Instalment; and

 

29


(b)

if made pursuant to Clauses 8.4, 8.8 and 15.2 against the Advance being prepaid in order of maturity of the Instalments and the Balloon Instalment.

 

8.12

No reborrowing

No amount prepaid or cancelled may be (re)borrowed.

 

9

CONDITIONS PRECEDENT

 

9.1

Documents, fees and no default

Each Lender’s obligation to contribute to the Advance is subject to the following conditions precedent:

 

(a)

that, on or before the date of this Agreement, the Agent receives the documents described in Part A of Schedule 3 in form and substance satisfactory to the Agent and its lawyers; and

 

(b)

that, on the Drawdown Dale, the Agent receives:

 

  (i)

the documents and conditions described in Part B of Schedule 3 in form and substance satisfactory to the Agent and its lawyers;

 

  (ii)

any fee payable pursuant to Clause 20.1; and

payment of any expenses payable pursuant to Clause 20.2 which are due and payable on the Drawdown Date;

 

(c)

that both at the date of the Drawdown Notice and at the Drawdown Date:

 

  (i)

no Event of Default or Potential Event of Default has occurred or would result from the borrowing of the relevant Advance;

 

  (ii)

the representations and warranties in Clause 10 and those of the Borrowers, the Approved Manager or any Security Party which are set out in the other Finance Documents would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing;

 

  (iii)

none of the circumstances contemplated by Clause 5.7 has occurred and is continuing; and

 

  (iv)

there has been no Material Adverse Change; and

 

(d)

that, if the Security Cover Ratio were applied immediately following the making of the Advance, the Borrowers would not be obliged to provide additional security or prepay part of the Loan under that Clause; and

 

(e)

that the Agent has received, and found to be acceptable to it, any further opinions, consents, agreements and documents in connection with the Finance Documents which the Agent may, with the authorisation of the Majority Lenders, request by notice to the Borrowers prior to the Drawdown Date.

 

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9.2

Waiver of conditions precedent

If the Majority Lenders, at their discretion, permit the Advance to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrowers shall ensure that those conditions are satisfied within 5 Business Days after the Drawdown Date (or such longer period as the Agent may, with the authorisation of the Majority Lenders, specify).

 

10

REPRESENTATIONS AND WARRANTIES

 

10.1

General

Each Borrower represents and warrants to each Creditor Party as follows.

 

10.2

Status

Each Borrower is duly incorporated, validly existing and in good standing under the laws of the Republic of the Marshall Islands.

 

10.3

Share capital and ownership

 

(a)

Each of Borrower A, Borrower B, Borrower C, Borrower D, Borrower E, Borrower F and Borrower G is authorised to issue five hundred (500) registered shares with a par value of $1.00 per share, all of which shares have been issued in registered form and are fully paid and are held, free of any Security Interest or other claim, by the Shareholder; and

 

(b)

all the shares of the Shareholder are held, free of any Security Interest or other claim, by the Corporate Guarantor.

 

10.4

Corporate power

Each Borrower has the corporate capacity, and has taken all corporate action and obtained all consents necessary for it:

 

(a)

to execute the Underlying Documents to which it is a party and to maintain the relevant Ship in its ownership under the applicable Approved Flag;

 

(b)

to execute the Finance Documents to which that Borrower is a party; and

 

(c)

to borrow under this Agreement and to make all the payments contemplated by, and to comply with, those Finance Documents to which that Borrower is a party.

 

10.5

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.

 

10.6

Legal validity; effective Security Interests

The Finance Documents to which each Borrower is a party, do now or, as the case may be, will, upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents):

 

(a)

constitute that Borrower’s legal, valid and binding obligations enforceable against that Borrower in accordance with their respective terms (having the requisite corporate benefit which is legally and economically sufficient); and

 

31


(b)

create legal, valid and binding Security Interests (having the priority specified in the relevant Finance Document) enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate,

subject to any relevant insolvency laws affecting creditors’ rights generally.

 

10.7

No third party Security Interests

Without limiting the generality of Clause 10.5, at the time of the execution and delivery of each Finance Document to which each Borrower is a party:

 

(a)

that Borrower will have the right to create all the Security Interests which that Finance Document purports to create; and

 

(b)

no third party will have any Security Interest (except for Permitted Security Interests) or any other interest, right or claim over, in or in relation to any asset to which any such Security Interest, by its terms, relates.

 

10.8

No conflicts

The execution by each Borrower, the Approved Manager and each other Security Party of each Finance Document and each Underlying Document to which it is a party, and the borrowing by that Borrower (together with the other Borrowers) of the Loan (or any part thereof), and its compliance with each Finance Document and each Underlying Document to which it is a party:

 

(a)

will not involve or lead to a contravention of:

 

  (i)

any law or regulation; or

 

  (ii)

the constitutional documents of that Borrower the Approved Manager or other Security Party; or

 

  (iii)

any contractual or other obligation or restriction which is binding on that Borrower the Approved Manager or other Security Party or any of its assets, and

 

(b)

will not have a Material Adverse Effect; and

 

(c)

is for the corporate benefit of that Borrower or each other Security Party.

 

10.9

No withholding taxes

All payments which each Borrower is liable to make under the Finance Documents to which it is a party may be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction.

 

10.10

No default

No Event of Default or Potential Event of Default has occurred.

 

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10.11

Information

All information which has been provided in writing by or on behalf of the Borrowers, the Approved Manager or any Security Party to any Creditor Party in connection with any Finance Document satisfied the requirements of Clause 11.5; all audited and unaudited accounts and financial statements which have been so provided satisfied the requirements of Clause 11.7 and are true, correct and not misleading and present fairly and accurately the financial position of the Borrowers, the Corporate Guarantor or the Group (as the case may be); and there has been no change in the financial position or state of affairs of a Borrower, the Corporate Guarantor or the Group (or any member thereof) from that disclosed in the latest of those accounts which is likely to have a Material Adverse Effect.

 

10.12

No litigation

No legal or administrative action involving a Borrower, the Approved Manager or any Security Party (including action relating to any alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or taken or, to that Borrower’s knowledge, is likely to be commenced or taken which would, in either case, be likely to have a Material Adverse Effect.

 

10.13

Validity and completeness of Underlying Documents

Each Underlying Document constitutes valid, binding and enforceable obligations of the parties thereto in accordance with its terms and:

 

  (a)

each of the copies of that Underlying Document delivered to the Agent before the date of this Agreement is a true and complete copy; and

 

  (b)

no amendments or additions to that Underlying Document have been agreed nor has any party which is the party to that Underlying Document, waived any of their respective rights thereunder.

 

10.14

Compliance with certain undertakings

At the date of this Agreement, the Borrowers are in compliance with Clauses 11.2, 11.4, 11.9, 11.13, 13, 14.3 and 14.10 and none of the events listed in Clause 19.1(g) has occurred in respect of either of the Borrowers or any Security Party.

 

10.15

Taxes paid

Each Borrower has paid all taxes applicable to, or imposed on or in relation to that Borrower, its business or the Ship owned by it.

 

10.16

ISM Code and ISPS Code compliance

All requirements of the ISM Code and the ISPS Code as they relate to the Borrowers, the Corporate Guarantor, the Approved Manager and the Ships have been complied with.

 

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10.17

No Money laundering

Each Borrower:

 

(a)

will not, and will procure that neither the Approved Manager nor a Security Party, to the extent applicable, will, in connection with this Agreement or any of the other Finance Documents, contravene or permit any subsidiary to contravene, any law, official requirement or other regulatory measure or procedure implemented to combat “money laundering” (as defined in Article 1 of the Directive 2015/849/EC of the European Parliament and of the Council of the European Communities) and comparable United States Federal and state laws. Each Borrower shall further submit any documents and declarations on request, if such documents or declarations are required by any Creditor Party to comply with its domestic money laundering and/or legal identification requirements; and

 

(b)

confirms that it is the beneficiary within the meaning of the German Anti Money Laundering Act (Gesetz uber das Aufspuren von Gewinnen aus schweren Straftaten (Geldwaschegesetz)), acting for its own account and not for or on behalf of any other person for each part of the Loan made or to be made available to it under this Agreement. That is to say, it acts for its own account and not for or on behalf of anyone else.

Each Borrower will promptly inform the Agent by written notice, if it is not or ceases to be the beneficiary and will provide in writing the name and address of the beneficiary.

The Agent shall promptly notify the Lenders of any written notice it receives under this Clause 10.16.

 

10.18

No immunity

No Borrower nor any of its assets is entitled to immunity on grounds of sovereignty or otherwise from any legal action or proceeding (including, without limitation, suit, attachment prior to judgement, execution or other enforcement).

 

10.19

Choice of law

The choice of the laws of England to govern this Agreement and those other Finance Documents which are expressed to be governed by the laws of England, the laws of Germany to govern the Account Pledges and the laws of the applicable Approved Flag State to govern the Mortgages, constitutes a valid choice of law and the submission by the Borrowers or, as the case may be, the relevant Security Parties thereunder to the non-exclusive jurisdiction of the Courts of England and, in the case of the Account Pledges, Germany or, in the case of the Mortgages, the applicable Approved Flag State is a valid submission and does not contravene the laws of England or, in the case of the Account Pledges, Germany or, in the case of the Mortgages, the applicable Approved Flag State or the laws of any other Pertinent Jurisdiction, will be applied by the courts of any Pertinent Jurisdiction if this Agreement or those other Finance Documents or any claim thereunder comes under their jurisdiction upon proof of the relevant provisions of the laws of England or, in the case of the Account Pledges, Germany or, in the case of the Mortgages, the applicable Approved Flag State.

 

10.20

Pari passu ranking

The obligations of the Borrowers and each Security Party under the Finance Documents to which it is a party are direct, general and unconditional obligations and rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except for obligations mandatorily preferred by law applying to companies generally.

 

34


10.21

Repetition

The representations and warranties in this Clause 10 shall be deemed to be repeated by the Borrowers:

 

(a)

on the date of service of the Drawdown Notice;

 

(b)

on the Drawdown Date; and

 

(c)

with the exception of Clauses 10.8 and 10.13, on the first day of each Interest Period and on the date of any Compliance Certificate issued pursuant to Clause 11.20,

as if made with reference to the facts and circumstances existing on each such day.

 

11

GENERAL UNDERTAKINGS

 

11.1

General

Each Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 11 at all times during the Security Period except as the Agent, acting with the authorisation of the Majority Lenders, may otherwise permit in writing.

 

11.2

Title and negative pledge

Each Borrower will:

 

(a)

hold the legal title to, and own the entire beneficial interest in its Ship, her Insurances and Earnings, free from all Security Interests and other interests and rights of every kind, except for those created by the Finance Documents and the effect of assignments contained in the Finance Documents and except for Permitted Security Interests; and

 

(b)

not create or permit to arise any Security Interest (except for Permitted Security Interests) over any other asset, present or future.

 

11.3

No disposal of assets

Subject to Clause 8.8 no Borrower will transfer, lease or otherwise dispose of:

 

(a)

all or a substantial part of its assets, whether by one transaction or a number of transactions, whether related or not; or

 

(b)

any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation,

but paragraph (a) does not apply to any charter of a Ship.

 

11.4

No other liabilities or obligations to be incurred

No Borrower will enter into any other investments, any sale or leaseback agreements, any off-balance sheet transaction or incur any other liability or obligation (including, without limitation, any Financial Indebtedness or any obligations under a guarantee) except:

 

(a)

liabilities and obligations under the Finance Documents and the Underlying Documents to which it is or, as the case may be, will be a party and under the relevant Indenture Guarantee; and

 

(b)

liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Ship owned by it.

 

35


11.5

Information provided to be accurate

All financial and other information, including but not limited to factual information, exhibits and reports, which is provided in writing by or on behalf of a Borrower under or in connection with any Finance Document will be true, correct and not misleading and will not omit any material fact or consideration.

 

11.6

Provision of financial statements

Each Borrower will send or procure that there are sent to the Agent:

 

(a)

as soon as possible, but in no event later than 180 days after the end of each Financial Year of the Corporate Guarantor, the consolidated audited annual financial statements of the Group for that Financial Year (commencing with the financial statements for the Financial Year which ended on 31 December 2020); and

 

(b)

as soon as possible, but in no event later than 90 days after the end of the 6-month period ending on 30 June in each Financial Year of the Corporate Guarantor, the semi-annual consolidated unaudited financial statements of the Group, for that 6-month period (commencing with the financial statements for the 6-month period ending on 30 June 2020), duly certified as to their correctness by an officer of the Corporate Guarantor; and

 

(c)

promptly after each request by the Agent, such further financial or other information in respect of that Borrower, a Ship, the Corporate Guarantor, the other Security Parties and the Group (including, without limitation, any information regarding any sale and purchase agreements, investment brochures, shipbuilding contracts, charter agreements and operational expenditures for the Ships) as may be requested by the Agent.

 

11.7

Form of financial statements

All accounts delivered under Clause 11.6 will:

 

(a)

be prepared in accordance with all applicable laws and US GAAP and, in the case of any audited financial statements, be certified by an independent and reputable auditor having requisite experience selected and appointed by the relevant Security Party;

 

(b)

fairly represent the financial condition of the Corporate Guarantor and the Group at the date of those accounts and of their profit for the period to which those accounts relate; and

 

(c)

fully disclose or provide for all significant liabilities of the Corporate Guarantor and the Group and each of its/their subsidiaries.

 

11.8

Shareholder and creditor notices

Each Borrower will send the Agent copies of any relevant press releases and, promptly upon its request, copies of all communications which are despatched to that Borrower’s shareholders or creditors or any class of them.

 

11.9

Consents

Each Borrower will maintain in force and promptly obtain or renew, and will promptly send certified copies to the Agent of, all consents required:

 

(a)

for that Borrower to perform its obligations under any Finance Document or any Underlying Document to which it is a party;

 

36


(b)

for the validity or enforceability of any Finance Document or any Underlying Document to which it is a party;

 

(c)

for that Borrower to continue to own and operate the Ship owned by it, and that Borrower will comply with the terms of all such consents.

 

11.10

Maintenance of Security Interests

Each Borrower will:

 

(a)

at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and

 

(b)

without limiting the generality of paragraph (a), at its own cost, promptly register, file, record or enrol any Finance Document 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, give any notice or take any other step which, in the opinion of the Majority Lenders, is or has become necessary or desirable for any Finance Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which it creates.

 

11.11

Notification of litigation

Each Borrower will provide the Agent with details of any legal or administrative action involving that Borrower, the Ship owned by it, the Earnings or the Insurances in respect of that Ship, any Security Party or the Approved Manager, as soon as such action is instituted or it becomes apparent to that Borrower 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 any Finance Document, and each Borrower shall procure that all reasonable measures are taken to defend any such legal or administrative action.

 

11.12

No amendment to Underlying Documents

No Borrower will waive or fail to enforce, the Underlying Documents to which it is a party or any of its provisions and shall promptly notify the Agent of any amendment or supplement to any Underlying Document.

 

11.13

Principal place of business

Each Borrower will maintain its place of business, and keep its corporate documents and records, at the address stated in Clause 28.2(a); and no Borrower will establish, or do anything as a result of which it would be deemed to have, a place of business in the United Kingdom or the United States.

 

11.14

Confirmation of no default

Each Borrower will, within two Business Days after service by the Agent of a written request, serve on the Agent a notice which is signed by the officer(s) of that Borrower and which:

 

(a)

states that no Event of Default or Potential Event of Default has occurred; or

 

37


(b)

states that no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material details are given.

The Agent may serve requests under this Clause 11.14 from time to time but only if asked to do so by a Lender or Lenders having Contributions exceeding 10 per cent. of the Loan or (if no Advances have been made) Commitments exceeding 10 per cent. of the Total Commitments; and this Clause 11.14 does not affect the Borrowers’ obligations under Clause 11.15.

 

11.15

Notification of default

Each Borrower will notify the Agent as soon as that Borrower 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 keep the Agent fully up-to-date with all developments.

 

11.16

Provision of further information

Each Borrower will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating:

 

(a)

to that Borrower, the Ship owned by it, the Earnings or the Insurances; or

 

(b)

to any other matter relevant to, or to any provision of, a Finance Document,

which may be requested by the Agent, the Security Trustee or any Lender at any time.

 

11.17

Provision of copies and translation of documents

Each Borrower will supply the Agent with a sufficient number of copies of the documents referred to above to provide one copy for each Creditor Party; and if the Agent so requires in respect of any of those documents, the Borrowers will provide a certified English translation prepared by a translator approved by the Agent.

 

11.18

“Know your customer” checks

If:

 

(a)

the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

 

(b)

any change in the composition of the shareholders of the Borrowers or any Security Party after the date of this Agreement; or

 

(c)

a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,

 

38


obliges the Agent or any Lender (or, in the case of paragraph (c), any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrowers shall promptly upon the request of the Agent or the Lender concerned supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case of the event described in paragraph (c), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned or, in the case of the event described in paragraph (c), any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

 

11.19

Minimum Liquidity and Additional Minimum Liquidity

The Borrowers shall maintain in the Liquidity Account credit balances in an aggregate amount of not less than:

 

(a)

$550,000 in respect of each Mortgaged Ship (amounting to $3,850,000 in aggregate) (“Minimum Liquidity”) commencing from the Drawdown Date and at all times thereafter throughout the remainder of the Security Period; and

 

(b)

in addition to the amount required to be maintained under paragraph (a) of this Clause 11.19, an additional amount of $250,000 In respect of Ship B and Ship C (amounting to $500,000 in aggregate) (“Additional Minimum Liquidity”) commencing from the Drawdown Date and at all times thereafter up to and including the date such Ship’s next special survey/dry-dock is scheduled, at which time, the Additional Minimum Liquidity applicable to the relevant Ship shall be released to or to the order of the Borrower which is the owner thereof for such purpose, Provided that no Event of Default or Potential Event of Default has occurred or is continuing at that time or will occur as a result of the release of the relevant part of the Additional Minimum Liquidity

 

11.20

Compliance Certificate

 

(a)

The Borrowers shall supply to the Agent, a Compliance Certificate together with each set of financial statements delivered pursuant to paragraph (a) of Clause 11.6 (commencing with the financial statements of the Corporate Guarantor to be provided for the period ending on 31 December 2020).

 

(b)

Each Compliance Certificate shall be duly signed by the chief financial officer of the Corporate Guarantor, evidencing (inter alio) the Borrowers’ compliance (or not, as the case may be) with the provisions of Clauses 15.1 and 11.19.

 

12

CORPORATE UNDERTAKINGS

 

12.1

General

Each Borrower also undertakes with each Creditor Party to comply with the following provisions of this Clause 12 at all times during the Security Period except as the Agent, acting with the authorisation of the Majority Lenders, may otherwise permit in writing.

 

12.2

Maintenance of status

Each Borrower will maintain its separate corporate existence and remain in good standing under the laws of the Republic of the Marshall Islands.

 

39


12.3

Negative undertakings

No Borrower will:

 

(a)

change the nature of its business or carry on any business other than the ownership, chartering and operation of the Ship owned by it;

 

(b)

pay any dividend or make any other form of distribution or effect any form of redemption, purchase or return of share capital if an Event of Default has occurred and is continuing at the relevant time or an Event of Default will result from the payment of a dividend or the making of any other form of distribution;

 

(c)

provide any form of credit or financial assistance to:

a person who is directly or indirectly interested in that Borrower’s share or loan capital; or

 

  (ii)

any company in or with which such a person is directly or indirectly interested or connected,

or enter Into any transaction with or involving such a person or company on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at arms’ length;

 

(d)

open or maintain any account with any bank or financial institution except accounts with the Agent, the Account Bank and the Security Trustee for the purposes of the Finance Documents;

 

(e)

issue, allot or grant any person a right to any shares in its capital or repurchase or reduce its issued share capital;

 

(f)

acquire any shares or other securities other than short term debt obligations or Treasury bills issued by the US, the UK or a Participating Member State and certificates of deposit issued by major North American or European banks, or enter into any transaction in a derivative;

 

(g)

enter into any form of amalgamation, merger or de-merger, acquisition, divesture, split-up or any form of reconstruction or reorganisation.

 

12.4

Corporate Guarantor’s Subsidiaries

The Borrowers shall provide the Agent with a list of the Borrowers’ and the Corporate Guarantor’s (direct and indirect) subsidiaries at the date of this Agreement (together with information requested by the Agent pursuant to Clause 11.6(c) in respect of such subsidiaries) and shall promptly update this list from time to time to advise the Agent of any amendments to the information included in the original list delivered to the Agent, unless such information is included in the financial statement or periodic public filings of the Corporate Guarantor.

 

13

INSURANCE

 

13.

1 General

Each Borrower also undertakes with each Creditor Party, on and from the Drawdown Date, to comply with the following provisions of this Clause 13, except as the Agent may, with the authority of the Majority Lenders, otherwise permit in writing.

 

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13.2

Maintenance of obligatory insurances

Each Borrower shall keep the Ship owned by it insured at the expense of that Borrower against:

 

(a)

fire and usual marine risks (including hull and machinery and excess risks);

 

(b)

war risks (including, without limitation, protection and indemnity war risks with a separate limit not less than hull value of the relevant Ship);

 

(c)

protection and indemnity risks (including, without limitation, protection and indemnity war risks in excess of the amount for war risks (hull) and oil pollution liability risks) in each case in the highest amount available in the international insurance market; and

 

(d)

any other risks the insurance of which the Security Trustee (acting on the instructions of the Majority Lenders), having regard to practices, recommendations and other circumstances prevailing at the relevant time, may from time to time require by notice to that Borrower.

 

13.3

Terms of obligatory insurances

Each Borrower shall effect such insurances in such amounts in such currency and upon such terms and conditions (including, without limitation, any LSW 1189 or, in the opinion of the Security Trustee, comparable mortgage clause) as shall from time to time be approved in writing by the Security Trustee in its sole discretion, but in any event as follows:

 

(a)

in Dollars;

 

(b)

in the case of fire and usual marine risks and war risks, on an agreed value basis in an amount equal to at least the higher of (i) an amount which is equal to 120 per cent. of the aggregate of (A) the Loan multiplied by a fraction whose: (1) nominator is the Market Value of the Ship owned by that Owner; and (2) denominator is the Market Value of all Mortgaged Ships and (B) the principal amount secured by any equal or prior ranking Security Interest on that Ship and (ii) the Market Value of that Ship;

 

(c)

in the case of oil pollution liability risks, for an amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry (with the International Group of Protection and Indemnity Clubs) and the international marine insurance market (currently $1,000,000,000 for any one accident or occurrence);

 

(d)

in relation to protection and indemnity risks in respect of the full value and tonnage of that Ship;

 

(e)

in relation to war risks insurance, extended to cover piracy and terrorism where excluded under the fire and usual marine risks insurance;

 

(f)

on approved terms and conditions;

 

(g)

such other risks of whatever nature and howsoever arising in respect of which insurance would be maintained by a prudent owner of a vessel similar to that Ship; and

 

(h)

through approved brokers and with approved insurance companies and/or underwriters which have a Standard & Poor’s rating of at least BBB- or a comparable rating by any other rating agency acceptable to the Security Trustee (acting on the instructions of the Majority Lenders) or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations which are members of the International Group of Protection and Indemnity Clubs.

 

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13.4

Further protections for the Creditor Parties

In addition to the terms set out in Clause 13.3, each Borrower shall and shall procure that:

 

(a)

it and any and all third parties who are named assured or co-assured under any obligatory insurance shall assign their interest in any and all obligatory insurances and other Insurances if so required by the Agent;

 

(b)

whenever the Security Trustee requires, the obligatory insurances name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation they may have under any applicable law against the Security Trustee but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;

 

(c)

the interest of the Security Trustee as assignee and as loss payee shall be duly endorsed on all slips, cover notes, policies, certificates of entry or other instruments of insurance in respect of the obligatory insurances;

 

(d)

the obligatory insurances shall name the Security Trustee as sole loss payee with such directions for payment as the Security Trustee may specify;

 

(e)

the obligatory insurances shall provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set-off, counterclaim or deductions or condition whatsoever;

 

(f)

the obligatory insurances shall provide that the insurers shall waive, to the fullest extent permitted by English law, their entitlement (if any) (whether by statute, common law, equity, or otherwise) to be subrogated to the rights and remedies of the Security Trustee in respect of any rights or interests (secured or not) held by or available to the Security Trustee in respect of the Secured Liabilities, until the Secured Liabilities shall have been fully repaid and discharged, except that the insurers shall not be restricted by the terms of this paragraph (f) from making personal claims against persons (other than the Borrowers or any Creditor Party) in circumstances where the insurers have fully discharged their liabilities and obligations under the relevant obligatory insurances;

 

(g)

the obligatory insurances shall provide that the obligatory insurances shall be primary without right of contribution from other insurances effected by the Security Trustee or any other Creditor Party;

 

(h)

the obligatory insurances shall provide that the Security Trustee may make proof of loss if that Borrower fails to do so; and

 

(i)

the obligatory insurances shall provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Security Trustee, or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, charge or lapse shall only be effective against the Security Trustee 14 days (or 7 days in the case of war risks) after receipt by the Security Trustee of prior written notice from the insurers of such cancellation, change or lapse.

 

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13.5

Renewal of obligatory insurances

Each Borrower shall:

 

(a)

at least 14 days before the expiry of any obligatory insurance effected by it:

 

  (i)

notify the Security Trustee of the brokers, underwriters, insurance companies and any protection and indemnity or war risks association through or with whom that Borrower proposes to renew that obligatory insurance and of the proposed terms and conditions of renewal; and

 

  (ii)

seek the Security Trustee’s approval to the matters referred to in paragraph (i);

 

(b)

at least 7 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Security Trustee’s approval pursuant to paragraph (a); and

 

(c)

procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Security Trustee in writing of the terms and conditions of the renewal.

 

13.6

Copies of policies; letters of undertaking

Each Borrower shall ensure that all approved brokers provide the Security Trustee with pro forma copies of all cover notes and policies relating to the obligatory insurances which they are to effect or renew and of a letter or letters of undertaking in a form required by the Security Trustee and including undertakings by the approved brokers that:

 

(a)

they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 13.4;

 

(b)

they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with the said loss payable clause;

 

(c)

they will advise the Security Trustee immediately of any material change to the terms of the obligatory insurances;

 

(d)

they will notify the Security Trustee, not less than 14 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that Borrower or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Security Trustee of the terms of the instructions; and

 

(e)

they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Security Trustee.

 

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13.7

Copies of certificates of entry; letters of undertaking

Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by that Borrower is entered provides the Security Trustee with:

 

(a)

a certified copy of the certificate of entry for that Ship;

 

(b)

a letter or letters of undertaking in such form as may be required by the Security Trustee;

 

(c)

where required to be issued under the terms of insurance/indemnity provided by that Borrower’s protection and indemnity association, a certified copy of each United States of America voyage quarterly declaration (or other similar document or documents) made by that Borrower in accordance with the requirements of such protection and indemnity association; and

 

(d)

a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority or, as the case may be, protection and indemnity associations in relation to that Ship (if applicable).

 

13.8

Deposit of original policies

Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the approved brokers through which the insurances are effected or renewed.

 

13.9

Payment of premiums

Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all relevant receipts when so required by the Security Trustee.

 

13.10

Guarantees

Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.

 

13.11

Compliance with terms of insurances

Each Borrower shall not do or omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular it shall:

 

(a)

take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 13.6(c)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Security Trustee has not given its prior approval;

 

(b)

not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances;

 

(c)

make (and promptly supply copies to the Agent) of all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which that Ship is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation) and, if applicable, shall procure that the Approved Manager complies with this requirement; and

 

44


(d)

not employ that Ship, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.

 

13.12

Alteration to terms of insurances

Each Borrower shall neither make nor agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.

 

13.13

Settlement of claims

No Borrower shall settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Security Trustee to collect or recover any moneys which at any time become payable in respect of the obligatory insurances and shall do all things necessary to ensure such collection or recovery is made.

 

13.14

Provision of copies of communications

Each Borrower shall provide the Security Trustee, when so requested, copies of all written communications between that Borrower and:

 

(a)

the approved brokers;

 

(b)

the approved protection and indemnity and/or war risks associations; and

 

(c)

the approved insurance companies and/or underwriters, which relate directly or indirectly to:

 

  (i)

that Borrower’s obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and

 

  (ii)

any credit arrangements made between that Borrower and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances.

 

13.15

Provision of information and further undertakings

In addition, each Borrower shall promptly provide the Security Trustee (or any persons which it may designate) with any information which the Security Trustee (or any such designated person) requests for the purpose of:

 

(a)

obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or

 

(b)

effecting, maintaining or renewing any such insurances as are referred to in Clause 13.16 or dealing with or considering any matters relating to any such insurances,

 

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and that Borrower shall:

 

  (I)

do all things necessary and provide the Agent and the Security Trustee with all documents and information to enable the Security Trustee to collect or recover any moneys in respect of the Insurances which are payable to the Security Trustee pursuant to the Finance Documents; and

 

  (ii)

promptly provide the Agent with full information regarding any Major Casualty in consequence whereof the Ship owned by that Borrower has become or may become a Total Loss and agree to any settlement of such casualty or other accident or damage to that Ship only with the Agent’s prior written consent,

and that Borrower shall, forthwith upon demand, indemnify the Security Trustee in respect of all fees and other expenses incurred by or for the account of the Security Trustee in connection with any such report as is referred to in paragraph (a).

 

13.16

Mortgagee’s interest and additional perils insurances

The Security Trustee shall be entitled from time to time to effect, maintain and renew all or any of the following insurances in such amounts, on such terms, through such insurers and generally in such manner as the Majority Lenders may from time to time consider appropriate:

 

(a)

a mortgagee’s interest insurance providing for the indemnification of the Creditor Parties for any losses under or in connection with any Finance Document (in an amount which is equal to 120 per cent. of the aggregate of (A) the Loan multiplied by a fraction whose: (1) nominator is the Market Value of the Ship owned by that Owner; and (2) denominator is the Market Value of all Mortgaged Ships and (B) the principal amount secured by any equal or prior ranking Security Interest on that Ship) which directly or indirectly result from loss of or damage to a Ship or a liability of that Ship or of the Borrower owning that Ship, being a loss or damage which is prima facie covered by an obligatory insurance but in respect of which there is a nonpayment (or reduced payment) by the underwriters by reason of, or on the basis of an allegation concerning:

any act or omission on the part of that Borrower, of any operator, charterer, manager or sub-manager of that Ship or of any officer, employee or agent of that Borrower or of any such person, including any breach of warranty or condition or any nondisclosure relating to such obligatory insurance;

 

  (ii)

any act or omission, whether deliberate, negligent or accidental, or any knowledge or privity of that Borrower, any other person referred to in paragraph (i) above, or of any officer, employee or agent of that Borrower or of such a person, including the casting away or damaging of that Ship and/or that Ship being unseaworthy; and/or

 

  (iii)

any other matter capable of being insured against under a mortgagee’s interest marine insurance policy whether or not similar to the foregoing; and

 

(b)

a mortgagee’s interest additional perils insurance providing for the indemnification of the Creditor Parties against, among other things, any possible losses or other consequences of any Environmental Claim, including the risk of expropriation, arrest or any form of detention of a Ship, the imposition of any Security Interest over that Ship and/or any other matter capable of being insured against under a mortgagee’s interest additional perils policy whether or not similar to the foregoing, and in an amount which is equal to 110 per cent. of the aggregate of (A) the Loan multiplied by a fraction whose: (1) nominator is the Market Value of the Ship owned by that Owner; and (2) denominator is the Market Value of all Mortgaged Ships and (B) the principal amount secured by any equal or prior ranking Security Interest on that Ship, and the Borrowers shall upon demand fully indemnify the Security Trustee in respect of all premiums and other expenses which are incurred in connection with or with a view to effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter arising out of any such insurance.

 

46


13.17

Review of insurance requirements

The Security Trustee shall be entitled to review the requirements of this Clause 13 from time to time in order to take account of any changes in circumstances after the date of this Agreement which are, in the opinion of the Agent (acting on the instructions of the Majority Lenders), significant and capable of affecting the Borrowers, each Ship and its Insurances (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to which the Borrower owning that Ship may be subject) and the Borrowers shall upon demand fully indemnify the Agent in respect of all fees and other expenses incurred by or for the account of the Agent in appointing an independent marine insurance broker or adviser to conduct such review.

 

13.18

Modification of insurance requirements

The Security Trustee shall notify the Borrowers of any proposed modification under Clause 13.17 to the requirements of this Clause 13 which the Security Trustee reasonably considers appropriate in the circumstances, and such modification shall take effect on and from the date it is notified in writing to the Borrowers as an amendment to this Clause 13 and shall bind the Borrowers accordingly.

 

13.19

Compliance with mortgagee’s instructions

The Security Trustee shall be entitled (without prejudice to or limitation of any other rights which it may have or acquire under any Finance Document) to require a Ship to remain at any safe port or to proceed to and remain at any safe port designated by the Security Trustee until the Borrower owning that Ship implements any amendments to the terms of the obligatory insurances and any operational changes required as a result of a notice served under Clause 13.18.

 

14

SHIP COVENANTS

 

14.1

General

Each Borrower also undertakes with each Creditor Party on and from the Drawdown Date to comply with the following provisions of this Clause 14 at all times during the Security Period except as the Agent, acting with the authorisation of the Majority Lenders, may otherwise permit in writing.

 

14.2

Ship’s name and registration

Each Borrower shall keep the Ship owned by it registered in its name under an Approved Flag; shall not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and shall not change the name or port of registry of that Ship.

 

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14.3

Repair and classification

Each Borrower shall, and shall procure that the Approved Manager shall, keep the Ship owned by that Borrower in a good and safe condition and state of repair, sea and cargo worthy in all respects:

 

(a)

consistent with first-class ship ownership and management practice;

 

(b)

so as to maintain the highest class free of overdue recommendations and conditions, with a classification society which is a member of IACS (other than the China Classification Society and the Russian Maritime Registry of Shipping) and acceptable to the Agent; and

 

(c)

so as to comply with all laws and regulations applicable to vessels registered at ports in the applicable Approved Flag State or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code,

and the Agent shall be given power of attorney in the form attached as Schedule 6 to act on behalf of that Borrower in order to, inspect the class records and any files held by the classification society and to require the classification society to provide the Agent or any of its nominees with any information, document or file, it might request and the classification society shall be fully entitled to rely hereon without any further inquiry.

 

14.4

Classification society undertaking

Each Borrower shall instruct the classification society referred to in Clause 14.3 (and procure that the classification society undertakes with the Security Trustee) in relation to its Ship:

 

(a)

to send to the Security Trustee, following receipt of a written request from the Security Trustee, certified true copies of all original class records and any other related records held by the classification society in relation to the Ship owned by that Borrower;

 

(b)

to allow the Security Trustee (or its agents), at any time and from time to time, to inspect the original class and related records of that Ship at the offices of the classification society and to take copies of them;

 

(c)

to notify the Security Trustee immediately in writing if the classification society:

receives notification from that Borrower or any person that that Ship’s classification society is to be changed; or

 

  (ii)

becomes aware of any facts or matters which may result in or have resulted in a change, suspension, discontinuance, withdrawal or expiry of that Ship’s class under the rules or terms and conditions of that Borrower’s or that Ship’s membership of the classification society;

 

(d)

following receipt of a written request from the Security Trustee:

 

  (i)

to confirm that that Borrower is not in default of any of its contractual obligations or liabilities to the classification society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the classification society; or

 

  (ii)

if that Borrower is in default of any of its contractual obligations or liabilities to the classification society, to specify to the Security Trustee in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by the classification society.

 

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14.5

Modification

No Borrower shall make any modification or repairs to, or replacement of, its Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value.

 

14.6

Removal of parts

No Borrower shall remove any material part of its Ship, or any item of equipment installed on that Ship unless the part or item so removed is forthwith replaced by a suitable part or item which is in the same condition as or better condition than the part or item removed, is free from any Security Interest or any right in favour of any person other than the Security Trustee and becomes on installation on that Ship the property of that Borrower and subject to the security constituted by the relevant Mortgage Provided that a Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by it.

 

14.7

Surveys

Each Borrower shall submit the Ship owned by it regularly to all periodical or other surveys which may be required for classification purposes and, if so required by the Security Trustee provide the Security Trustee, with copies of all survey reports.

 

14.8

Inspection

Each Borrower shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose) to board the Ship owned by that Borrower at all reasonable times to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections at the Borrower’s expense (which if no Event of Default has occurred and is continuing shall be limited to once in each calendar year).

 

14.9

Prevention of and release from arrest

Each Borrower shall promptly discharge:

 

(a)

all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it, the Earnings or the Insurances;

 

(b)

all taxes, dues and other amounts charged in respect of that Ship, the Earnings or the Insurances; and

 

(c)

all other outgoings whatsoever in respect of that Ship, the Earnings or the Insurances,

and, forthwith upon receiving notice of the arrest of that Ship, or of its detention in exercise or purported exercise of any lien or claim, that Borrower shall procure its release by providing bail or otherwise as the circumstances may require.

 

49


14.10

Compliance with laws etc.

Each Borrower shall:

 

(a)

comply, or procure compliance with the ISM Code, the ISPS Code, all Environmental Laws and all other laws or regulations relating to the Ship owned by it, its ownership, operation and management or to the business of that Borrower;

 

(b)

not employ the Ship owned by it nor allow its employment in any manner contrary to any law or regulation in any relevant jurisdiction including but not limited to the ISM Code and the ISPS Code; and

 

(c)

in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit that Ship to enter or trade to any zone which is declared a war zone by any government or by the Ship’s war risks insurers unless the prior written consent of the Security Trustee has been given and that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Trustee may require.

 

14.11

Provision of information

Each Borrower shall promptly provide the Security Trustee with any information which it requests regarding:

 

(a)

the Ship owned by it, its employment, position and engagements;

 

(b)

the Earnings and payments and amounts due to the master and crew of that Ship;

 

(c)

any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made in respect of that Ship;

 

(d)

any towages and salvages; and

 

(e)

its compliance, the Approved Manager’s compliance and the compliance of that Ship with the ISM Code and the ISPS Code,

and, upon the Security Trustee’s request, provide copies of any current charter relating to that Ship, of any current charter guarantee and copies of that Borrower’s or the Approved Manager’s Document of Compliance, Safety Management Certificate and the ISSC.

 

14.12

Notification of certain events

Each Borrower shall:

 

(a)

before entering into:

 

  (i)

any demise charter for any period in respect of its Ship; or

 

  (ii)

any other Assignable Charter,

notify the Agent and provide copies of any draft charter relating to its Ship and, if applicable, any draft charter guarantee and that Borrower shall be entitled to enter into such charter without the consent of the Creditor Parties Provided that:

 

  (A)

that Borrower executes in favour of the Security Trustee a specific assignment of all its rights, title and interest in and to such charter and any charter guarantee in the form of a Charterparty Assignment;

 

50


  (B)

the charterer and any charter guarantor receive a notice (1) of the specific assignment of such charter and charter guarantee and (2) that the Mortgage over that Ship has been registered prior to the entry into such charter;

 

  (C)

in the case where such charter is a demise charter the charterer undertakes to the Security Trustee (1) to comply with all of that Borrower’s undertakings with regard to the employment, insurances, operation, repairs and maintenance of its Ship contained in this Agreement, the Mortgage and the General Assignment in relation to that Ship and (2) to provide an assignment of its interest in the insurances of the Ship in the Agreed Form;

 

  (D)

the relevant Borrower provides certified true and complete copies of the charter relating to its Ship and of any current charter guarantee, if any, promptly after its execution;

 

  (E)

the Agent’s receipt of a copy of the charter and its failure or neglect to act, delay or acquiescence in connection with the relevant Borrower’s entering into such charter shall not in any way constitute an acceptance by the Agent of whether or not the Earnings under the charter are sufficient to meet the debt service requirements under this Agreement nor shall it in any way affect the Agent’s or the Security Trustee’s entitlement to exercise its rights under the Finance Documents pursuant to Clause 19 upon the occurrence of an Event of Default arising as a result of an act or omission of the charterer; and

 

  (F)

the Borrower delivers to the Agent such other documents equivalent to those referred to at paragraphs 2, 3, 4, 5, 7, 8 and 9 of Schedule 3, Part A as the Agent may require; and

 

(b)

immediately notify the Security Trustee by letter, of:

 

  (i)

its entry into any agreement or arrangement for the postponement of any date on which any Earnings are due, the reduction of the amount of any Earnings or otherwise for the release or adverse alteration of any right of that Borrower to any Earnings;

 

  (ii)

its entry into any time or consecutive voyage charter in respect of that Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 12 months;

 

  (iii)

any casualty which is or is likely to be or to become a Major Casualty;

 

  (iv)

any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;

 

  (v)

any requirement, overdue condition or recommendation made by any insurer or classification society or by any competent authority which is not complied with in accordance with its terms;

 

  (vi)

any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;

 

  (vii)

any unscheduled dry docking of that Ship;

 

  (viii)

any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident;

 

51


  (ix)

any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, the Approved Manager or otherwise in connection with that Ship;

 

  (x)

its intention to de-activate or lay up its Ship; or

 

  (xi)

any other matter, event or incident, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,

and that Borrower shall keep the Security Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of that Borrower’s, the Approved Manager’s or any other person’s response to any of those events or matters.

 

14.13

Restrictions on chartering, appointment of managers etc.

No Borrower shall, in relation to the Ship owned by it:

 

(a)

enter into any charter in relation to that Ship under which more than two months’ hire (or the equivalent) is payable in advance;

 

(b)

charter that Ship otherwise than on bona fide arm’s length terms at the time when that Ship is fixed;

 

(c)

appoint a manager of that Ship other than the Approved Manager; or

 

(d)

put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $500,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.

 

14.14

Notice of Mortgage

Each Borrower shall keep the Mortgage relative to its Ship registered against that Ship as a valid first preferred or, as the case may be, priority mortgage, carry on board that Ship a certified copy of that Mortgage and place and maintain in a conspicuous place in the navigation room and the Master’s cabin of that Ship a framed printed notice stating that that Ship is mortgaged by that Borrower to the Security Trustee.

 

14.15

Sharing of Earnings

No Borrower shall enter into any agreement or arrangement for the sharing of any Earnings (other than (i) any profit sharing agreement with a charterer which takes effect above an agreed minimum charter hire rate payable to the relevant Borrower under a charter to which that Borrower is a party and (ii) any pool agreement, in either case, on bona fide arm’s length terms).

 

14.16

ISPS Code

Each Borrower shall comply with the ISPS Code and in particular, without limitation, shall:

 

(a)

procure that the Ship owned by it and the company responsible for that Ship’s compliance with the ISPS Code comply with the ISPS Code; and

 

52


(b)

maintain for that Ship an ISSC; and

 

(c)

notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC.

 

15

SECURITY COVER

 

15.1

Minimum required security cover

Clause 15.2 applies if the Agent notifies the Borrowers that the Security Cover Ratio is below 140 per cent.

 

15.2

Prepayment; provision of additional security

If the Agent serves a notice on the Borrowers under Clause 15.1, the Borrowers shall prepay such part at least of the Loan as will eliminate the shortfall on or before the date falling 14 Business Days after the date on which the Agent’s notice is served under Clause 15.1 (the “Prepayment Date”) unless at least five calendar days before the Prepayment Date the Borrowers have provided, or ensured that a third party has provided, additional security which, in the reasonable opinion of the Majority Lenders, has a net realisable value at least equal to the shortfall and is documented in such terms as the Agent may, with the authorisation of the Majority Lenders, approve or require.

 

15.3

Valuation of Ships

The Market Value of a Ship:

 

(a)

for the purposes of the Initial Market Value, is that shown in one valuation addressed to the Agent issued by one Approved Broker to be nominated and appointed by the Agent and addressed to the Agent. If the Borrowers do not agree with such valuation, the Borrowers can nominate another Approved Broker to provide a second valuation addressed to the Agent and appointed by the Agent, in which case the Initial Market Value is that shown by taking the arithmetic average of such two valuations. If the difference between these two valuations is greater than 15 per cent. paragraph (d) of this Clause 15.3 shall be applicable; and

 

(b)

at any other date, is that shown in one valuation addressed to the Agent to be issued by an Approved Broker, nominated and appointed by the Borrowers and addressed to the Agent (the “First Valuation”) unless the Agent obtains a second valuation issued by an Approved Broker nominated and appointed by the Agent (the “Second Valuation”) in which case the Market Value of the relevant Ship at the relevant date is that shown:

 

  (i)

if the difference between the First Valuation and the Second Valuation is less than 10 per cent., by the First Valuation; and

 

  (ii)

if the difference between the First Valuation and the Second Valuation is greater than 10 per cent. but less than 15 per cent. or less, by taking the arithmetic average of such two valuations,

 

(c)

each valuation issued pursuant to paragraphs (a) and (b) of this Clause 15.3 to be prepared:

 

  (A)

as at a date not more than 30 days previously;

 

53


  (B)

with or without physical inspection of that Ship (as the Agent may require); and

 

  (C)

on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment; and

 

(d)

if the difference between 2 valuations in respect of a Ship obtained at any one time, in each case, pursuant to this Clause 15.3 is greater than 15 per cent. a valuation shall be commissioned from a third Approved Broker selected and appointed by the Agent. Such valuation to be conducted in accordance with this Clause 15.3 and the Market Value of that Ship in such circumstances shall be the arithmetic average of all three valuations.

 

15.4

Value of additional vessel security

The net realisable value of any additional security which is provided under Clause 15.2 and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the requirements of Clause 15.3.

 

15.5

Valuations binding

Any valuation under Clause 15.2, 15.3 or 15.4 shall be binding and conclusive as regards the Borrowers, as shall be any valuation which the Majority Lenders make of any additional security which does not consist of or include a Security Interest.

 

15.6

Provision of information

The Borrowers shall promptly provide the Agent and any Approved Broker or expert acting under Clause 15.3 or 15.4 with any information which the Agent or that Approved Broker or expert may request for the purposes of the valuation; and, if the Borrowers fail to provide the information by the date specified in the request, the valuation may be made on any basis and assumptions which that Approved Broker or the Majority Lenders (or the expert appointed by them) consider prudent.

 

15.7

Payment of valuation expenses

Without prejudice to the generality of the Borrowers’ obligations under Clauses 20.2, 20.3 and 21.3, the Borrowers shall, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker or expert instructed by the Agent under this Clause and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause.

 

15.8

Frequency of valuations

The Borrowers shall provide the Agent with a valuation of each Ship, dated as of December, on the date on which the Agent receives any financial statements in accordance with Clauses 11.6(a) for the period ending on the dates referred to above in respect of which the Market Value of each Ship will be determined and the Compliance Certificate in accordance with Clause 11.20.

 

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16

PAYMENTS AND CALCULATIONS

 

16.

1 Currency and method of payments

All payments to be made by the Lenders or by any Borrower under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:

 

(a)

by not later than 11.00 a.m. (New York City time) on the due date;

 

(b)

in same day Dollar funds settled through the New York Clearing House Interbank Payments System (or in such other Dollar funds and/or settled in such other manner as the Agent shall specify as being customary at the time for the settlement of international transactions of the type contemplated by this Agreement);

 

(c)

in the case of an amount payable by a Lender to the Agent or by any Borrower to the Agent or any Lender, to the account of the Agent at J.P. Morgan Chase Bank (SWIFT Code CHASUS33) (Account No. 001 1331 808 in favour of Hamburg Commercial Bank AG, SWIFT Code HSHNDEHH; Reference “Cerulean Shipping Corporation et al”) or to such other account with such other bank as the Agent may from time to time notify to the Borrowers and the other Creditor Parties; and

 

(d)

in the case of an amount payable to the Security Trustee, to such account as it may from time to time notify to the Borrowers and the other Creditor Parties.

 

16.2

Payment on non-Business Day

If any payment by any Borrower under a Finance Document would otherwise fall due on a day which is not a Business Day:

 

(a)

the due date shall be extended to the next succeeding Business Day; or

 

(b)

if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day,

and interest shall be payable during any extension under paragraph (a) at the rate payable on the original due date.

 

16.3

Basis for calculation of periodic payments

All interest and commitment fee and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.

 

16.4

Distribution of payments to Creditor Parties

Subject to Clauses 16.5, 16.6 and 16.7:

 

(a)

any amount received by the Agent under a Finance Document for distribution or remittance to a Lender or the Security Trustee shall be made available by the Agent to that Lender or, as the case may be, the Security Trustee by payment, with funds having the same value as the funds received, to such account as the Lender or the Security Trustee may have notified to the Agent not less than five Business Days previously; and

 

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(b)

amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it.

 

16.5

Permitted deductions by Agent

Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent may, before making an amount available to a Lender, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand.

 

16.6

Agent only obliged to pay when monies received

Notwithstanding any other provision of this Agreement or any other Finance Document, the Agent shall not be obliged to make available to any Borrower or any Lender any sum which the Agent is expecting to receive for remittance or distribution to that Borrower or that Lender until the Agent has satisfied itself that it has received that sum.

 

16.7

Refund to Agent of monies not received

If and to the extent that the Agent makes available a sum to a Borrower or a Lender, without first having received that sum, that Borrower or (as the case may be) the Lender concerned shall, on demand:

 

(a)

refund the sum in full to the Agent; and

 

(b)

pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding or other loss, liability or expense incurred by the Agent as a result of making the sum available before receiving it.

 

16.8

Agent may assume receipt

Clause 16.7 shall not affect any claim which the Agent has under the law of restitution, and applies irrespective of whether the Agent had any form of notice that it had not received the sum which it made available.

 

16.9

Creditor Party accounts

Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.

 

16.10

Agent’s memorandum account

The Agent shall maintain a memorandum account showing the amounts advanced by the Lenders and all other sums owing to the Agent, the Security Trustee and each Lender from the Borrowers and each Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrowers and any Security Party.

 

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16.11

Accounts prima facie evidence

If any accounts maintained under Clauses 16.9 and 16.10 show an amount to be owing by a Borrower or a Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.

 

17

APPLICATION OF RECEIPTS

 

17.1

Normal order of application

Except as any Finance Document may otherwise provide, any sums which are received or recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:

 

(a)

FIRST: in or towards satisfaction of any amounts then due and payable under the Finance Documents in the following order and proportions:

 

  (i)

firstly, in or towards satisfaction pro rata of all amounts then due and payable to the Creditor Parties under the Finance Documents (including, but without limitation, all amounts payable by any Borrower under Clauses 20, 21 and 22 of this Agreement or by any Borrower or any Security Party under any corresponding or similar provision in any other Finance Document) other than those amounts referred to at paragraphs (ii) and (iii);

 

  (ii)

secondly, in or towards satisfaction pro rata of any and all amounts of interest or default interest payable to the Creditor Parties under the Finance Documents; and

 

  (iii)

thirdly, in or towards satisfaction of the Loan; and

 

(b)

SECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Agent, by notice to the Borrowers (or any of them), the Security Parties and the other Creditor Parties, states in its opinion will either or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards satisfaction of them in accordance with the provisions of Clause 17.1(a); and

 

(c)

THIRDLY: any surplus shall be paid to the Borrowers or to any other person appearing to be entitled to it.

 

17.2

Application by any covered bond Lender

If and to the extent that any Lender includes the Loan and/or a Mortgage in its covered bond register, any enforcement proceeds recovered under the Finance Documents and attributable to it under the relevant Finance Document shall, notwithstanding the provisions of Clause 17.1(a), be applied by it first to the part of the Loan that corresponds to that Lender’s Contribution registered in its covered bond register and thereafter in the following order:

 

(a)

firstly, in or towards satisfaction of the amounts set out under Clause 17.1(a)(i);

 

(b)

secondly, in or towards satisfaction of the amounts set out under Clause 17.1(a)(ii); and

 

(c)

thirdly, in or towards satisfaction of any part of the Loan that corresponds to any unregistered part of that Lender’s contribution.

 

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17.3

Variation of order of application

The Agent may, with the authorisation of the Majority Lenders, by notice to the Borrowers, the Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 17.1 (but not, for the avoidance of doubt, that set out in Clause 17.2) either as regards a specified sum or sums or as regards sums in a specified category or categories.

 

17.4

Notice of variation of order of application

The Agent may give notices under Clause 17.3 from time to time; and such a notice may be stated to apply not only to sums which may be received or recovered in the future, but also to any sum which has been received or recovered on or after the third Business Day before the date on which the notice is served.

 

17.5

Appropriation rights overridden

This Clause 17 and any notice which the Agent gives under Clause 17.3 shall override any right of appropriation possessed, and any appropriation made, by any Borrower or either Security Party.

 

18

APPLICATION OF EARNINGS

 

18.

1 Payment of Earnings

Each Borrower undertakes with each Creditor Party that, throughout the Security Period (and subject only to the provisions of the General Assignment to which it is a party):

 

(a)

it shall maintain the Accounts with the Account Bank;

 

(b)

it shall ensure that all Earnings of the Ship owned by it are paid to the Earnings Account for that Ship; and

 

(c)

all Minimum Liquidity and Additional Minimum Liquidity amounts required pursuant to Clause 11.19 shall be maintained in the Liquidity Account.

 

18.2

Monthly retentions

The Borrowers undertake with each Creditor Party to ensure that, on and from the date falling one month after the Drawdown Date and at monthly intervals thereafter during the Security Period, there are transferred to the Retention Account out of the Earnings received in the relevant Earnings Account during the preceding month the relevant fraction of the aggregate amount of interest which is payable on the next due date for payment of interest under this Agreement, and the Borrowers irrevocably authorise the Agent to make those transfers (in its sole discretion and without any obligation) if the Borrowers fail to do so.

The “relevant fraction”, in relation to paragraph (b), is a fraction of which the numerator is 1 and the denominator the number of months comprised in the then current Interest Period (or if the current Interest Period ends after the next due date for payment of interest under this Agreement, the number of months from the later of the commencement of the current Interest Period or the last due date for payment of interest to the next due date for payment of interest under this Agreement).

 

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18.3

Shortfall in Earnings

If the aggregate Earnings received in each Earnings Account are insufficient at any time for the required amount to be transferred to the Retention Account under Clause 18.2, the Borrowers shall immediately pay the amount of the insufficiency into the Retention Account.

 

18.4

Application of retentions

Until an Event of Default or a Potential Event of Default occurs, the Agent shall, to the extent there are sufficient funds standing to the credit of the Retention Account, on each Repayment Date and on each due date for the payment of interest under this Agreement distribute to the Lenders in accordance with Clause 16.4 so much of the then balance on the Retention Account as equals the amount of interest in respect of the Loan payable on that interest payment date, in discharge of the Borrowers’ liability for that Instalment or that interest.

 

18.5

Interest accrued on the Accounts

Any credit balance on each Account shall bear interest at the rate from time to time offered by the Agent to its customers for Dollar deposits of similar amounts and for periods similar to those for which such balances appear to the Agent likely to remain on that Account.

18.6 Release of accrued interest

Interest accruing under Clause 18.5 shall be credited to the relevant Account and may be released to the relevant Borrower pursuant to Clause 18.10.

 

18.7

Location of Accounts

Each Borrower shall promptly:

 

(a)

comply with any requirement of the Agent as to the location or re-location of the Accounts (or any of them); and

 

(b)

execute any documents which the Agent specifies to create or maintain in favour of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Accounts.

 

18.8

Debits for fees, expenses etc.

The Agent shall be entitled (but not obliged) from time to time to debit any Earnings Account without prior notice in order to discharge any amount due and payable under Clauses 20 or 21 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clauses 20 or 21.

 

18.9

Borrowers’ obligations unaffected

The provisions of this Clause 18 (as distinct from a distribution effected under Clause 18.4) do not affect:

 

(a)

the liability of the Borrowers to make payments of principal and interest on the due dates; or

 

(b)

any other liability or obligation of the Borrowers or any Security Party under any Finance Document.

 

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18.10

Restriction on withdrawal

During the Security Period no sum may be withdrawn by a Borrower from the Liquidity Account or Retention Account (other than interest pursuant to Clause 18.6, provided that no Event of Default or Potential Event of Default has occurred which is continuing), without the prior written consent of the Agent.

The Borrowers may, in any calendar month, after having transferred and/or after having taken into account all amounts due or which will become due to be transferred to the Retention Account in such calendar month in accordance with Clause 18.2, withdraw any surplus (a “Surplus”) from the Earnings Accounts (or any of them) as they may think fit for purposes permitted by this Agreement and the other Finance Documents Provided always no Event of Default or Potential Event of Default has occurred which is continuing in which case any Surplus shall remain on the relevant Earnings Account and the Borrowers may only withdraw the Surplus (or any part thereof) with the prior written consent of the Agent (acting upon the instructions of the Majority Lenders) in order to satisfy the documented and properly incurred operating expenses of the Ships (or any of them).

 

19

EVENTS OF DEFAULT

 

19.1

Events of Default

An Event of Default occurs if:

 

(a)

any Borrower or any Security Party fails to pay when due or (if so payable) on demand any sum payable under a Finance Document or under any document relating to a Finance Document unless:

 

  (i)

its failure to pay is caused by administrative or technical error or a Disruption Event; and

 

  (ii)

payment is made within 3 Business Days; or

 

(b)

any breach occurs of Clause 9.2, 11.2, 11.3, 11.18, 11.19, 11.20, 12.2, 12.3 or 15.2; or

 

(c)

any breach by any Borrower, the Approved Manager or any Security Party occurs of any provision of a Finance Document (other than a breach covered by paragraphs (a) or (b)) which, in the reasonable opinion of the Majority Lenders, is capable of remedy, and such default continues unremedied 30 Business Days (or any other grace period agreed by the Agent) after written notice from the Agent requesting action to remedy the same; or

 

(d)

(subject to any applicable grace period specified in the Finance Documents) any material breach by any Borrower, the Approved Manager or any Security Party occurs of any provision of a Finance Document (other than a breach falling within paragraphs (a), (b) or (c)); or

 

(e)

any representation, warranty or statement made or repeated by, or by an officer of, a Borrower, the Approved Manager or a Security Party in a Finance Document or in a Drawdown Notice or any other notice or document relating to a Finance Document is untrue or misleading in any material respect when it is made or repeated; or

 

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any of the following occurs in relation to any Financial Indebtedness of a Relevant Person:

 

  (i)

any Financial Indebtedness of a Relevant Person is not paid when due unless the Relevant Person is contesting its obligation to pay the relevant amount in good faith and on substantial grounds and by appropriate proceedings and adequate reserves have been set aside for its payment if such proceedings fail; or

 

  (ii)

any Financial Indebtedness of a Relevant Person which in the case of any Relevant Person other than any Borrower exceeds $15,000,000 (or the equivalent in any other currency in aggregate), becomes due and payable or capable of being declared due and payable prior to its stated maturity date as a consequence of any event of default; or

 

  (iii)

any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of a Relevant Person which in the case of any Relevant Person other than any Borrower exceeds $15,000,000 (or the equivalent in any other currency in aggregate) ceases to be available or becomes capable of being terminated as a result of any event of default, or cash cover is required, or becomes capable of being required, in respect of such a facility as a result of any event of default; or

 

  (iv)

any Security Interest securing any Financial Indebtedness of a Relevant Person, which in the case of any Relevant Person other than any Borrower exceeds an amount of $15,000,000 (or the equivalent in any other currency in aggregate), becomes enforceable; or

 

(g)

any of the following occurs in relation to a Relevant Person:

 

  (i)

a Relevant Person becomes, in the reasonable opinion of the Majority Lenders, unable to pay its debts as they fall due; or

 

  (H)

any assets of a Relevant Person are subject to any form of execution, attachment, arrest, sequestration or distress or any form of freezing order which in the case of any Relevant Person other than any Borrower exceeds $15,000,000 (or the equivalent in any other currency in aggregate), and such execution, attachment, arrest, sequestration, distress or freezing order is not withdrawn within thirty (30) Business Days; or

 

  (Hi)

any administrative or other receiver is appointed over any asset of a Relevant Person; or

 

  (iv)

an administrator is appointed (whether by the court or otherwise) in respect of a Relevant Person; or

 

  (v)

any formal declaration of bankruptcy or any formal statement to the effect that a Relevant Person is insolvent or likely to become insolvent is made by a Relevant Person or by the directors or officers of a Relevant Person or, in any proceedings, by a lawyer acting for a Relevant Person; or

 

  (vi)

a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is made in relation to a Relevant Person or a winding up resolution is passed by a Relevant Person; or

 

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  (vii)

a resolution is passed, an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by (aa) a Relevant Person, (bb) the shareholders, directors or officers of a Relevant Person, (cc) a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person, or (dd) a government minister or public or regulatory authority of a Pertinent Jurisdiction for or with a view to the winding up of that or another Relevant Person or the appointment of a provisional liquidator or administrator in respect of that or another Relevant Person, or that or another Relevant Person ceasing or suspending business operations or payments to creditors, save that this paragraph does not apply to a fully solvent winding up of a Relevant Person other than any Borrower or the Corporate Guarantor or the Shareholder which is, or is to be, effected for the purposes of an amalgamation or reconstruction previously approved by the Majority Lenders and effected not later than three months after the commencement of the winding up; or

 

  (viii)

an administration notice is given or filed, an application or petition to a court is made or presented or any other step is taken by a creditor of a Relevant Person (other than a holder of Security Interests which together relate to all or substantially all of the assets of a Relevant Person) for the winding up of a Relevant Person or the appointment of a provisional liquidator or administrator in respect of a Relevant Person in any Pertinent Jurisdiction, unless the proposed winding up, appointment of a provisional liquidator or administration is being contested in good faith, on substantial grounds and not with a view to some other insolvency law procedure being implemented instead and either (aa) the application or petition is dismissed or withdrawn within 60 days of being made or presented, or (bb) within 60 days of the administration notice being given or filed, or the other relevant steps being taken, other action is taken which will ensure that there will be no administration and (in both cases (aa) or (bb)) the Relevant Person will continue to carry on business in the ordinary way and without being the subject of any actual, interim or pending insolvency law procedure; or

 

  (ix)

a Relevant Person or its directors or officers take any steps (whether by making or presenting an application or petition to a court, or submitting or presenting a document setting out a proposal or proposed terms, or otherwise) with a view to obtaining, in relation to that or another Relevant Person, any form of moratorium, suspension or deferral of payments, reorganisation of debt (or certain debt) or arrangement with all or a substantial proportion (by number or value) of creditors or of any class of them or any such moratorium, suspension or deferral of payments, reorganisation or arrangement is effected by court order, by the filing of documents with a court, by means of a contract or in any other way at all; or

 

  (x)

any meeting of the shareholders or directors, or of any committee of the board or senior management, of a Relevant Person is held or summoned for the purpose of considering a resolution or proposal to authorise or take any action of a type described in paragraphs (iv) to (ix) or a step preparatory to such action, or (with or without such a meeting) the shareholders, directors or such a committee resolve or agree that such an action or step should be taken or should be taken if certain conditions materialise or fail to materialise; or

 

  (xi)

in a Pertinent Jurisdiction other than England, any event occurs, any proceedings are opened or commenced or any step is taken which, in the reasonable opinion of the Majority Lenders is similar to any of the foregoing; or

 

62


(h)

any Borrower ceases or suspends carrying on its business or a part of its business which, in the reasonable opinion of the Majority Lenders, is material in the context of this Agreement; or

 

(I)

it becomes unlawful in any Pertinent Jurisdiction or impossible:

 

  (i)

for any Borrower, the Approved Manager or any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders consider material under a Finance Document; or

 

  (ii)

for the Agent, the Security Trustee or the Lenders to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or

 

(j)

any official consent necessary to enable any Borrower to own, operate or charter the Ship owned by it or to enable any Borrower, the Approved Manager or any Security Party to comply with any provision which the Majority Lenders reasonably consider material of a Finance Document or any Underlying Document is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent is not fulfilled unless such revocation is validly contested in good faith by the Borrower, the Approved Manager or, as the case may be, that Security Party; or

 

(k)

it appears to the Majority Lenders that, without their prior consent, either (i) a Change of Control has occurred or probably has occurred after the date of this Agreement, (ii) the Corporate Guarantor ceases being the direct legal and beneficial owner of the shares in the Shareholder and the voting rights attaching to those shares or (iii) the Shareholder ceases being the direct legal and beneficial owner of the shares in the relevant Borrower and of the voting rights attaching to those shares; or

any provision which the Majority Lenders reasonably consider material of a Finance Document proves to have been or becomes invalid or unenforceable, or a Security Interest created by a Finance Document proves to have been or becomes invalid or unenforceable or such a Security Interest proves to have ranked after, or loses its priority to, another Security Interest or any other third party claim or interest (excluding any Permitted Security Interests); or

 

(m)

the security constituted by a Finance Document is in any way imperilled or in jeopardy; or

 

(n)

any Borrower, the Approved Manager or any Security Party or any other person (other than a Creditor Party) repudiates any of the Finance Documents to which that Borrower, the Approved Manager or that Security Party or person is a party or evidences an intention to do so; or

 

(o)

any other event occurs or any other circumstances arise or develop including, without limitation:

 

    

a change in the financial position, state of affairs or prospects of any Borrower, the Corporate Guarantor or any other Security Party; or

 

  (ii)

the commencement of legal or administrative action involving a Borrower, a Ship, either of the Approved Manager or any Security Party; or

 

  (Hi)

the withdrawal of any material license or governmental or regulatory approval in respect of a Ship, a Borrower, the Approved Manager or any Borrower’s or Approved Manager’s business (unless such withdrawal can be contested with the effect of suspension and is in fact so contested in good faith by the Borrowers or the Approved Manager),

 

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which in the reasonable opinion of the Lenders constitutes a Material Adverse Change.

 

19.2

Actions following an Event of Default

On, or at any time after, the occurrence of an Event of Default:

 

(a)

the Agent may, and if so instructed by the Majority Lenders, the Agent shall:

 

    

serve on the Borrowers a notice stating that all or part of the Commitments and of the other obligations of each Lender to the Borrowers under this Agreement are cancelled; and/or

 

  (ii)

serve on the Borrowers a notice stating that all or part of the Loan together with accrued interest and all other amounts accrued or owing under this Agreement are immediately due and payable or are due and payable on demand; and/or

 

  (iii)

take any other action which, as a result of the Event of Default or any notice served under paragraph (i) or (ii), the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law; and/or

 

(b)

the Security Trustee may, and if so instructed by the Agent, acting with the authorisation of the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event of Default or any notice served under paragraph (a)(i) or (a)(ii), the Security Trustee, the Agent, the Mandated Lead Arranger and/or the Lenders are entitled to take under any Finance Document or any applicable law.

 

19.3

Termination of Commitments

On the service of a notice under Clause 19.2(a)(i), the Commitments and all other obligations of each Lender to the Borrowers under this Agreement shall be cancelled.

 

19.4

Acceleration of Loan

On the service of a notice under Clause 19.2(a)(ii), all or, as the case may be, the part of the Loan specified in the notice together with accrued interest and all other amounts accrued or owing from the Borrowers or any Security Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.

 

19.5

Multiple notices; action without notice

The Agent may serve notices under Clauses 19.2(a)(i) or 19.2(a)(ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 19.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.

 

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19.6

Notification of Creditor Parties and Security Parties

The Agent shall send to each Lender, the Security Trustee, the Approved Manager and each Security Party a copy or the text of any notice which the Agent serves on the Borrowers under Clause 19.2; but the notice shall become effective when it is served on the Borrowers, and no failure or delay by the Agent to send a copy or the text of the notice to any other person shall invalidate the notice or provide any Borrower, the Approved Manager or any Security Party with any form of claim or defence.

 

19.7

Creditor Party rights unimpaired

Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1.

 

19.8

Exclusion of Creditor Party liability

No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to a Borrower or a Security Party:

 

(a)

for any loss caused by an exercise of rights under, or enforcement of a Security Interest created by, a Finance Document or by any failure or delay to exercise such a right or to enforce such a Security Interest; or

 

(b)

as mortgagee in possession or otherwise, for any income or principal amount which might have been produced by or realised from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset,

except that this does not exempt a Creditor Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by gross negligence, the dishonesty or the wilful misconduct of such Creditor Party’s own officers and employees or (as the case may be) such receiver’s or manager’s own partners or employees.

 

19.9

Relevant Persons

In this Clause 19, a “Relevant Person” means a Borrower or any Security Party.

 

19.10

Interpretation

In Clause 19.1(f) references to an event of default or a termination event include any event, howsoever described, which is similar to an event of default in a facility agreement or a termination event in a finance lease; and in Clause 19.1(g) “petition” includes an application.

 

20

FEES AND EXPENSES

 

20.1

Fees

The Borrowers shall pay to the Agent:

 

(a)

on the earlier of (i) the Drawdown Date and (ii) the last day of the Availability Period a nonrefundable structuring fee in the amount equal to 2.00 per cent. of the amount of the loan actually being drawn down; and

 

(b)

a non-refundable commitment fee, at the rate of 1.00 per cent. per annum on the undrawn or uncancelled amount of the Total Commitments, payable quarterly in arrears for distribution among the Lenders pro rata to their Commitments, during the period from (and including) the date of this Agreement to the earlier of (i) the Drawdown Date and (ii) the last day of the Availability Period.

 

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20.2

Costs of negotiation, preparation etc.

The Borrowers shall pay to the Agent on its demand the amount of all legal and other expenses incurred by the Agent or the Security Trustee in connection with the negotiation, preparation, execution or registration of any Finance Document or any related document or with any transaction contemplated by a Finance Document or a related document.

 

20.3

Costs of variations, amendments, enforcement etc.

The Borrowers shall pay to the Agent, on the Agent’s demand, for the account of the Creditor Party concerned, the amount of all legal and other expenses incurred by a Creditor Party in connection with:

 

(a)

any amendment or supplement (or any proposal for such an amendment or supplement) requested (or, in the case of a proposal, made) by or on behalf of the Borrowers and relating to a Finance Document or any other Pertinent Document;

 

(b)

any consent, waiver or suspension of rights by the Lenders, the Majority Lenders or the Creditor Party concerned or any proposal for any of the foregoing requested (or, in the case of a proposal, made) by or on behalf of the Borrowers under or in connection with a Finance Document or any other Pertinent Document;

 

(c)

the valuation of any security provided or offered under and pursuant to Clause 15 or any other matter relating to such security;

 

(d)

any step taken by the Creditor Party concerned with a view to the preservation, protection, exercise or enforcement of any rights or Security Interest created by a Finance Document or for any similar purpose including, without limitation, any proceedings to recover or retain proceeds of enforcement or any other proceedings following enforcement proceedings until the date all outstanding indebtedness to the Creditor Parties under the Finance Documents and any other Pertinent Document is repaid in full; or

 

(e)

any amendment or supplement (or any proposal for such an amendment or supplement) in connection with a Finance Document or any other Pertinent Document required as contemplated in Clause 27.5.

There shall be recoverable under paragraph (d) the full amount of all legal expenses, whether or not such as would be allowed under rules of court or any taxation or other procedure carried out under such rules.

 

20.4

Documentary taxes

The Borrowers shall promptly pay any tax payable on or by reference to any Finance Document, and shall, on the Agent’s demand, fully indemnify each Creditor Party against any claims, expenses, liabilities and losses resulting from any failure or delay by the Borrowers to pay such a tax.

 

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20.5

Certification of amounts

A notice which is signed by two officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 20 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima fade evidence that the amount, or aggregate amount, is due.

 

21

INDEMNITIES

 

21.1

Indemnities regarding borrowing and repayment of Loan

The Borrowers shall fully indemnify the Agent and each Lender on the Agent’s demand and the Security Trustee on its demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by that Creditor Party, or which that Creditor Party reasonably and with due diligence estimates that it will incur, as a result of or in connection with:

 

  (a)

the Advance not being borrowed on the date specified in the relevant Drawdown Notice for any reason other than a default by the Lender claiming the indemnity after the relevant Drawdown Notice has been served in accordance with the provisions of this Agreement;

 

  (b)

the receipt or recovery of all or any part of the Loan or an overdue sum otherwise than on the last day of an Interest Period or other relevant period;

 

  (c)

any failure (for whatever reason) by the Borrowers (or any of them) to make payment of any amount due under a Finance Document on the due date or, if so payable, on demand (after giving credit for any default interest paid by the Borrowers on the amount concerned under Clause 7) including but not limited to any costs and expenses of enforcing any Security Interests created by the Finance Documents and any claims, liabilities and losses which may be brought against, or incurred by, a Creditor Party when enforcing any Security Interests created by the Finance Documents; and

 

  (d)

the occurrence and/or continuance of an Event of Default or a Potential Event of Default and/or the acceleration of repayment of the Loan under Clause 19,

and in respect of any tax (other than tax on its overall net income and a FATCA Deduction) for which a Creditor Party is liable in connection with any amount paid or payable to that Creditor Party (whether for its own account or otherwise) under any Finance Document.

 

21.2

Break Costs

If a Lender (the “Notifying Lender”) notifies the Agent that as a consequence of receipt or recovery of all or any part of the Loan (a “Payment”) on a day other than the last day of an Interest Period applicable to the sum received or recovered the Notifying Lender has or will, with effect from a specified date, incur Break Costs:

 

(a)

the Agent shall promptly notify the Borrowers of a notice it receives from a Notifying Lender under this Clause 21.2;

 

(b)

the Borrowers shall, within five Business Days of the Agent’s demand, pay to the Agent for the account of the Notifying Lender the amount of such Break Costs; and

 

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(c)

the Notifying Lender shall, as soon as reasonably practicable, following a request by the Borrowers, provide a certificate confirming the amount of the Notifying Lender’s Break Costs for the Interest Period in which they accrue, such certificate to be, in the absence of manifest error, conclusive and binding on the Borrowers.

In this Clause 21.2, “Break Costs” means, in relation to a Payment the amount (if any) by which:

 

    

the interest which the Notifying Lender, should have received in accordance with Clause 5 in respect of the sum received or recovered from the date of receipt or recovery of such Payment to the last day of the then current Interest Period applicable to the sum received or recovered had such Payment been made on the last day of such Interest Period;

exceeds

 

  (ii)

the amount which the Notifying Lender, would be able to obtain by placing an amount equal to such Payment on deposit with a leading bank in the Relevant Interbank Market for a period commencing on the Business Day following receipt or recovery of such Payment (as the case may be) and ending on the last day of the then current Interest Period applicable to the sum received or recovered.

 

21.3

Other breakage costs

Without limiting its generality, Clause 21.1 covers any claim, expense, liability or loss, including (without limitation) (i) a loss of a prospective profit, incurred by a Lender in borrowing, liquidating or re-employing deposits from third parties acquired, contracted for or arranged to fund, effect or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount) other than claims, expenses, liabilities and losses which are shown to have been directly and mainly caused by the gross negligence or wilful misconduct of the officers or employees of the Creditor Party concerned and (ii) any applicable legal fees.

 

21.4

Miscellaneous indemnities

The Borrowers shall fully indemnify each Creditor Party severally on their respective demands, without prejudice to any of their other rights under any of the Finance Documents, in respect of all claims, expenses, liabilities and losses which may be made or brought against or sustained or incurred by a Creditor Party, in any country, as a result of or in connection with:

 

(a)

any action taken, or omitted or neglected to be taken, under or in connection with any Finance Document by the Agent, the Security Trustee or any other Creditor Party or by any receiver appointed under a Finance Document;

 

(b)

investigating any event which the Creditor Party concerned reasonably believes constitutes an Event of Default or Potential Event of Default; or

 

(c)

acting or relying on any notice, request or instruction which the Creditor Party concerned reasonably believes to be genuine, correct and appropriately authorised,

other than claims, expenses, liabilities and losses which are shown to have been directly and mainly caused by the dishonesty, gross negligence or wilful misconduct of the officers or employees of the Creditor Party concerned.

 

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21.5

Environmental Indemnity

Without prejudice to the generality of Clause 21.4, this Clause 21.5 covers any claims, demands, proceedings, liabilities, taxes, losses, liabilities or expenses of every kind which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code or the ISPS Code, any Environmental Law.

 

21.6

Currency indemnity

If any sum due from a Borrower or any Security Party to a Creditor Party under a Finance Document or under any order, award or judgment relating to a Finance Document (a “Sum”) has to be converted from the currency in which the Finance Document provided for the Sum to be paid (the “Contractual Currency”) into another currency (the “Payment Currency”) for the purpose of:

 

(a)

making, filing or lodging any claim or proof against a Borrower or any Security Party, whether in its liquidation, any arrangement involving it or otherwise; or

 

(b)

obtaining an order, judgment or award from any court or other tribunal in relation to any litigation or arbitration proceedings; or

 

(c)

enforcing any such order, judgment or award,

the Borrowers shall as an independent obligation, within three Business Days of demand, indemnify the Creditor Party to whom that Sum is due against any cost, loss or liability arising when the payment actually received by that Creditor Party is converted at the available rate of exchange back into the Contractual Currency including any discrepancy between (A) the rate of exchange actually used to convert the Sum from the Payment Currency into the Contractual Currency and (B) the available rate of exchange.

In this Clause 21.6, the “available rate of exchange” means the rate at which the Creditor Party concerned is able at the opening of business (London time) on the Business Day after it receives the Sum to purchase the Contractual Currency with the Payment Currency.

Each Borrower waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency other than that in which it is expressed to be payable.

If any Creditor Party receives any Sum in a currency other than the Contractual Currency, the Borrowers shall indemnify in full the Creditor Party concerned against any cost, loss or liability arising directly or indirectly from any conversion of such Sum to the Contractual Currency.

This Clause 21.6 creates a separate liability of that Borrower which is distinct from its other liabilities under the Finance Documents and which shall not be merged in any judgment or order relating to those other liabilities.

 

21.7

Certification of amounts

A notice which is signed by two officers of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates (without necessarily specifying a detailed breakdown) the matters in respect of which the amount, or aggregate amount, is due shall be prima fade evidence that the amount, or aggregate amount, is due.

 

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21.8

Sums deemed due to a Lender

For the purposes of this Clause 21, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.

 

22

NO SET-OFF OR TAX DEDUCTION 22.1 No deductions

All amounts due from the Borrowers under a Finance Document shall be paid:

 

  (a)

without any form of set-off, counter-claim, cross-claim or condition; and

 

  (b)

free and clear of any tax deduction except a tax deduction which a Borrower is required by law to make.

 

22.2

Grossing-up for taxes

If, at any time, a Borrower is required by law, regulation or regulatory requirement to make a tax deduction from any payment due under a Finance Document:

 

  (a)

that Borrower shall notify the Agent as soon as it becomes aware of the requirement;

 

  (b)

the amount due in respect of the payment shall be increased by the amount necessary to ensure that, after the making of such tax deduction, each Creditor Party receives on the due date for such payment (and retains free from any liability relating to the tax deduction) a net amount which is equal to the full amount which it would have received had no such tax deduction been required to be made; and

 

  (c)

that Borrower shall pay the full amount of the tax required to be deducted to the appropriate taxation authority promptly in accordance with the relevant law, regulation or regulatory requirement, and in any event before any fine or penalty arises.

 

22.3

Indemnity and evidence of payment of taxes

The Borrowers shall fully indemnify each Creditor Party on the Agent’s demand in respect of all claims, expenses, liabilities and losses incurred by any Creditor Party by reason of any failure of the Borrowers (or any of them) to make any tax deduction or by reason of any increased payment not being made on the due date for such payment in accordance with Clause 22.2. Within 30 days after making any tax deduction, the Borrowers or, as the case may be, the relevant Borrower shall deliver to the Agent any receipts, certificates or other documentary evidence satisfactory to the Agent that the tax had been paid to the appropriate taxation authority.

 

22.4

Exclusion of tax on overall net income

In this Clause 22 “tax deduction” means any deduction or withholding from any payment due under a Finance Document for or on account of any present or future tax except:

 

  (a)

tax on a Creditor Party’s overall net income; and

 

  (b)

a FATCA Deduction.

 

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22.5

FATCA Information

 

(a)

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

  (i)

confirm to that other Party whether it is:

 

  (A)

a FATCA Exempt Party; or

 

  (B)

not a FATCA Exempt Party; and

 

  (ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party’s compliance with FATCA; and

 

  (iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation or exchange of information regime.

 

(b)

If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

 

(c)

Paragraph (a) above shall not oblige any Creditor Party to do anything and sub-paragraph (Hi) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:

 

  (i)

any law or regulation;

 

  (ii)

any fiduciary duty; or

 

  (iii)

any duty of confidentiality.

 

(d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (H) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

 

(e)

If a Lender knows or has reason to know that a Borrower is a US Tax Obligor, or where the Agent reasonably believes that its obligations under FATCA require it, each Lender shall, within ten Business Days of:

 

  (i)

where the Lender knows or has reason to know that a Borrower is a US Tax Obligor and the relevant Lender is a Party as at the date of this Agreement, the date of this Agreement;

 

  (H)

where the Lender knows or has reason to know that a Borrower is a US Tax Obligor and the relevant Lender became a Party after the date of this Agreement, the date on which the relevant Transfer Certificate became effective; or

 

  (-i)

the date of a request from the Agent,

 

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supply to the Agent:

 

  (iv)

a withholding certificate on US Internal Revenue Service Form W-8 or Form W-9 (or any successor form) (as applicable); or

 

  (v)

any withholding statement and other documentation, authorisations and waivers as the Agent may require to certify or establish the status of such Lender under FATCA.

The Agent shall provide any withholding certificate, withholding statement, documentation, authorisations and waivers it receives from a Lender pursuant to this paragraph (e) to the Borrowers, to the extent required for compliance with FATCA or any other law or regulation, and shall be entitled to rely on any such withholding certificate, withholding statement, documentation, authorisations and waivers provided without further verification. The Agent shall not be liable for any action taken by it under or in connection with this paragraph (e).

 

(f)

Each Lender agrees that if any withholding certificate, withholding statement, documentation, authorisations and waivers provided to the Agent pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, it shall promptly update such withholding certificate, withholding statement, documentation, authorisations and waivers or promptly notify the Agent in writing of its legal inability to do so. The Agent shall provide any such updated withholding certificate, withholding statement, documentation, authorisations and waivers to the Borrowers, to the extent required for compliance with FATCA or any other law or regulation. The Agent shall not be liable for any action taken by it under or in connection with this paragraph (f).

 

22.6

FATCA Deduction

 

(a)

Each Party may make any FATCA Deduction as it reasonably determines it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

 

(b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Borrower and the Agent and the Agent shall notify the other Creditor Parties.

 

23

ILLEGALITY, ETC.

 

23.1

Illegality

This Clause 23 applies if a Lender (the “Notifying Lender”) notifies the Agent that it has become, or will with effect from a specified date, become:

 

(a)

unlawful or prohibited as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or

 

(b)

contrary to, or inconsistent with, any regulation,

for the Notifying Lender to perform, maintain or give effect to any of its obligations under this Agreement in the manner contemplated by this Agreement or to fund or maintain the Loan.

 

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23.2

Notification of illegality

The Agent shall promptly notify the Borrowers, the Security Parties, the Security Trustee and the other Lenders of the notice under Clause 23.1 which the Agent receives from the Notifying Lender.

 

23.3

Prepayment; termination of Commitment

On the Agent notifying the Borrowers under Clause 23.2, the Notifying Lender’s Commitment shall be immediately cancelled; and thereupon or, if later, on the date specified in the Notifying Lender’s notice under Clause 23.1 as the date on which the notified event would become effective the Borrowers shall prepay the Notifying Lender’s Contribution on the last day of the then current Interest Period in accordance with Clauses 8.10 and 8.11.

 

24

INCREASED COSTS 24.1 Increased costs

This Clause 24 applies if a Lender (the “Notifying Lender”) notifies the Agent that the Notifying Lender considers that as a result of:

 

(a)

the introduction or alteration after the date of this Agreement of a law or an alteration after the date of this Agreement in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Agreement of a tax on the Lender’s overall net income); or

 

(b)

complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Notifying Lender allocates capital resources to its obligations under this Agreement) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Agreement; or

 

(c)

the implementation or application of or compliance with the “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (the “Basel II Accord”) or any other law or regulation implementing the Basel II Accord or any of the approaches provided for and allowed to be used by banks under or in connection with the Basel II Accord, in each case when compared to the cost of complying with such regulations as determined by the Agent (or parent company of it) on the date of this Agreement (whether such implementation, application or compliance is by a government, regulator, supervisory authority, the Notifying Lender or its holding company); or

 

(d)

the implementation or application of or compliance with Basel III or any law or regulation which implements or applies Basel III (regardless of the date on which it is enacted, adopted or issued and regardless of whether any such implementation, application or compliance is by a government, regulator, the Notifying Lender or any of its affiliates),

the Notifying Lender (or a parent company of it) has incurred or will incur an “increased cost”.

 

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24.2

Meaning of “increased cost”

In this Clause 24, “increased cost” means, in relation to a Notifying Lender:

 

(a)

an additional or increased cost incurred as a result of, or in connection with, the Notifying Lender having entered into, or being a party to, this Agreement or a Transfer Certificate, of funding or maintaining its Commitment or Contribution or performing its obligations under this Agreement, or of having outstanding all or any part of its Contribution or other unpaid sums;

 

(b)

a reduction in the amount of any payment to the Notifying Lender under this Agreement or in the effective return which such a payment represents to the Notifying Lender or on its capital;

 

(c)

an additional or increased cost of funding all or maintaining all or any of the advances comprised in a class of advances formed by or including the Notifying Lender’s Contribution or (as the case may require) the proportion of that cost attributable to the Contribution; or

 

(d)

a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Notifying Lender under this Agreement,

but not an item attributable to a change in the rate of tax on the overall net income of the Notifying Lender (or a parent company of it) or an item covered by the indemnity for tax in Clause 21.1 or by Clause 22 or a FATCA Deduction required to be made by a Party.

For the purposes of this Clause 24.2 the Notifying Lender may in good faith allocate or spread costs and/or losses among its assets and liabilities (or any class of its assets and liabilities) on such basis as it considers appropriate.

 

24.3

Notification to Borrowers of claim for increased costs

The Agent shall promptly notify the Borrowers and the Security Parties of the notice which the Agent received from the Notifying Lender under Clause 24.1.

 

24.4

Payment of increased costs

The Borrowers shall pay to the Agent within 5 Business Days after the Agent’s demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrowers that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.

 

24.5

Notice of prepayment

If the Borrowers are not willing to continue to compensate the Notifying Lender for the increased cost under Clause 24.4, the Borrowers may give the Agent not less than 14 days’ notice of their intention to prepay the Notifying Lender’s Contribution at the end of an Interest Period.

 

24.6

Prepayment; termination of Commitment

A notice under Clause 24.5 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrowers’ notice of intended prepayment; and:

 

(a)

on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall be cancelled; and

 

(b)

on the date specified in its notice of intended prepayment, the Borrowers shall prepay (without premium or penalty) the Notifying Lender’s Contribution, together with accrued interest thereon at the applicable rate plus the Margin, the relevant Top-up Fee and the Mandatory Cost (if any).

 

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24.7

Application of prepayment

Clause 8 shall apply in relation to the prepayment.

 

25

SET-OFF

 

25.1

Application of credit balances

Each Creditor Party may without prior notice to the Borrowers but with prior notice to the Agent:

 

(a)

apply any balance (whether or not then due) which at any time stands to the credit of any account in the name of a Borrower at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from that Borrower to that Creditor Party under any of the Finance Documents; and

 

(b)

for that purpose:

break, or alter the maturity of, all or any part of a deposit of that Borrower;

 

  (ii)

convert or translate all or any part of a deposit or other credit balance into Dollars; and

 

  (iii)

enter into any other transaction or make any entry with regard to the credit balance which the Creditor Party concerned considers appropriate.

 

25.2

Existing rights unaffected

No Creditor Party shall be obliged to exercise any of its rights under Clause 25.1; 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 a Creditor Party is entitled (whether under the general law or any document).

 

25.3

Sums deemed due to a Lender

For the purposes of this Clause 25, a sum payable by the Borrowers to the Agent or the Security Trustee for distribution to, or for the account of, a Lender shall be treated as a sum due to that Lender; and each Lender’s proportion of a sum so payable for distribution to, or for the account of, the Lenders shall be treated as a sum due to such Lender.

 

25.4

No Security Interest

This Clause 25 gives the Creditor Parties a contractual right of set-off only, and does not create any equitable charge or other Security Interest over any credit balance of any Borrower.

 

26

TRANSFERS AND CHANGES IN LENDING OFFICES

 

26.1

Transfer by Borrowers

No Borrower may assign or transfer any of its rights, liabilities or obligations under any Finance Document.

 

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26.2

Transfer by a Lender

Subject to Clause 26.4, a Lender (the “Transferor Lender”) may at any time, without the consent of the Borrowers or any Security Party but after consultation with the Borrowers, cause:

 

(a)

its rights in respect of all or part of its Contribution; or

 

(b)

its obligations in respect of all or part of its Commitment; or

 

(c)

a combination of (a) and (b); or

 

(d)

all or part of its credit risk under this Agreement and the other Finance Documents,

to be syndicated to or, (in the case of its rights) assigned, pledged or transferred to, or (in the case of its obligations) pledged or assumed by, any other bank or financial institution or to a trust, fund or other entity, provided such other entity is regularly engaged in, or established for the purpose of, making, purchasing or investing in loans, securities or other financial assets (a “Transferee Lender”) by delivering to the Agent a completed certificate in the form set out in Schedule 5 with any modifications approved or required by the Agent (a “Transfer Certificate”) executed by the Transferor Lender and the Transferee Lender.

However, any rights and obligations of the Transferor Lender in its capacity as Agent or Security Trustee will have to be dealt with separately in accordance with the Agency and Trust Agreement.

All costs and expenses relating to a transfer effected pursuant to this Clause 26.2 shall be borne by the Transferee Lender.

 

26.3

Transfer Certificate, delivery and notification

As soon as reasonably practicable after a Transfer Certificate is delivered to the Agent, it shall (unless it has reason to believe that the Transfer Certificate may be defective):

 

(a)

sign the Transfer Certificate on behalf of itself, the Borrowers, the Security Parties, the Security Trustee and each of the other Lenders;

 

(b)

on behalf of the Transferee Lender, send to each Borrower and each Security Party letters or faxes notifying them of the Transfer Certificate and attaching a copy of it; and

 

(c)

send to the Transferee Lender copies of the letters or faxes sent under paragraph (b) above.

 

26.4

Effective Date of Transfer Certificate

A Transfer Certificate becomes effective on the date, if any, specified in the Transfer Certificate as its effective date Provided that it is signed by the Agent under Clause 26.3 on or before that date.

 

26.5

No transfer without Transfer Certificate

Except as provided in Clause 26.17, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, any Borrower, any Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.

 

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26.6

Lender re-organisation

However, if a Lender enters into any merger, de-merger or other reorganisation as a result of which all its rights or obligations vest in another person (the “successor”), the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender only upon receipt by the Agent of a notice to this effect and evidence that all rights and obligations have automatically and by operation of law vested in the successor by virtue of the merger, de-merger or other reorganisation, without the need for the execution and delivery of a Transfer Certificate; the Agent shall in that event inform the Borrowers and the Security Trustee accordingly.

 

26.7

Effect of Transfer Certificate

A Transfer Certificate takes effect in accordance with English law as follows:

 

(a)

to the extent specified in the Transfer Certificate, all rights and interests (present, future or contingent) which the Transferor Lender has under or by virtue of the Finance Documents are assigned to the Transferee Lender absolutely, free of any defects in the Transferor Lender’s title and of any rights or equities which any Borrower or any Security Party had against the Transferor Lender;

 

(b)

the Transferor Lender’s Commitment is discharged to the extent specified in the Transfer Certificate;

 

(c)

the Transferee Lender becomes a Lender with the Contribution previously held by the Transferor Lender and a Commitment of an amount specified in the Transfer Certificate;

 

(d)

the Transferee Lender becomes bound by all the provisions of the Finance Documents which are applicable to the Lenders generally, including those about pro-rata sharing and the exclusion of liability on the part of, and the indemnification of, the Agent and the Security Trustee and, to the extent that the Transferee Lender becomes bound by those provisions (other than those relating to exclusion of liability), the Transferor Lender ceases to be bound by them;

 

(e)

any part of the Loan which the Transferee Lender advances after the Transfer Certificate’s effective date ranks in point of priority and security in the same way as it would have ranked had it been advanced by the transferor, assuming that any defects in the transferor’s title and any rights or equities of any Borrower or any Security Party against the Transferor Lender had not existed;

 

(f)

the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.7 and Clause 20, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and

 

(g)

in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount.

 

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The rights and equities of any Borrower or any Security Party referred to above include, but are not limited to, any right of set off and any other kind of cross-claim.

 

26.8

Maintenance of register of Lenders

During the Security Period the Agent shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 26.4) of the Transfer Certificate; and the Agent shall make the register available for inspection by any Lender, the Security Trustee and the Borrowers during normal banking hours, subject to receiving at least three Business Days’ prior notice.

 

26.9

Reliance on register of Lenders

The entries on that register shall, in the absence of manifest error, be conclusive in determining the identities of the Lenders and the amounts of their Commitments and Contributions and the effective dates of Transfer Certificates and may be relied upon by the Agent and the other parties to the Finance Documents for all purposes relating to the Finance Documents.

 

26.10

Authorisation of Agent to sign Transfer Certificates

Each Borrower, the Security Trustee and each Lender irrevocably authorises the Agent to sign Transfer Certificates on its behalf. The Borrower and each Security Party irrevocably agree to the transfer procedures set out in this Clause 26 and to the extent the cooperation of the Borrowers and/or any Security Party shall be required to effect any such transfer, the Borrowers and such Security Party shall take all necessary steps to afford such cooperation Provided that this shall not result in any additional costs to the Borrowers or such Security Party.

 

26.11

Sub-participation; subrogation assignment

A Lender may sub-participate or include in a securitisation or similar transaction all or any part of its rights and/or obligations under or in connection with the Finance Documents without the Borrowers’ prior consent and without serving a notice thereon; the Lenders may assign without the Borrowers’ prior consent but after consultation with the Borrowers, in any manner and terms agreed by the Majority Lenders, the Agent and the Security Trustee, all or any part of those rights to an insurer or surety who has become subrogated to them.

 

26.12

Sub-division, split, modification or re-tranching

Any Lender may, in its sole discretion, sub-divide, split, sever, modify or re-tranche its Contribution into one or more parts subject to the overall cost of its Contribution to the Borrowers remaining unchanged, if such changes are necessary in order to achieve a successful execution of a securitisation, syndication or any other capital market exit in respect of its Contribution (or any applicable part thereof).

 

78


26.13

Disclosure of information

A Lender may, without the prior consent of the Borrowers, the Corporate Guarantor or any other Security Party, disclose to a potential Transferee Lender or sub participant as well as,

where relevant, to rating agencies, trustees and accountants, any financial or other information which that Lender has received in relation to the Loan, the Borrowers (or any of them), the Corporate Guarantor and any other Security Party or their affairs and collateral or security provided under or in connection with any Finance Document, their financial circumstances and any other information whatsoever, as that Lender may deem reasonably necessary or appropriate in connection with the potential syndication, the assessment of the credit risk and the ongoing monitoring of the Loan by any potential Transferee Lender and that Lender shall be released from its obligation of secrecy and from banking confidentiality.

This permission is given for the purposes of giving relief from banking secrecy and confidentiality requirements. It is not intended as and is no declaration of consent in accordance with the DS_GVO (DS-GVO refers to Datenschutz-Grundverordnung, the German term for General Data Protection Regulation) (EU Regulation 2016/679, General Data Protection Regulation).

In the event any such potential Transferee Lender, sub-participant, rating agency, trustee or accountant is not already bound by any legal obligation of secrecy or banking confidentiality, the Lender concerned may only give, disclose or reveal such information as the Corporate Guarantor is entitled to disclose by rules and regulations of the SEC and any US Stock Exchange applicable to the Corporate Guarantor and shall require such other party to sign a confidentiality agreement. The Borrowers shall, and shall procure that the Corporate Guarantor and any other Security Party shall:

 

(a)

provide the Creditor Parties (or any of them) with all information deemed, reasonably, necessary by the Creditor Parties (or any of them) for the purposes of any transfer, syndication or sub-participation to be effected pursuant to this Clause 26;

 

(b)

procure that the directors and officers of each Borrower, the Corporate Guarantor or any other Security Party, are available to participate in any meeting with any Transferee Lender or any rating agency at such times and places as the Creditor Parties may reasonably request following prior notice (to be served on the Borrowers reasonably in advance) to that Borrower, the Corporate Guarantor or that Security Party; and

 

(c)

permit any Transferee Lender to board the Ship at all reasonable times and locations to inspect its condition in accordance with Clause 14.8.

 

26.14

Confidentiality

Any publicity regarding the Loan or any of the terms thereof shall be agreed in advance by the Corporate Guarantor and the Agent (acting on the instructions of the Majority Lenders) unless otherwise required in connection with the Corporate Guarantor’s reporting obligations under or in connection with the rules and regulations of the SEC and any US Stock Exchange applicable to the Corporate Guarantor.

 

26.15

Change of lending office

A Lender may change its lending office by giving notice to the Agent and the change shall become effective on the later of:

 

(a)

the date on which the Agent receives the notice; and

 

(b)

the date, if any, specified in the notice as the date on which the change will come into effect.

 

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26.16

Notification

On receiving such a notice, the Agent shall notify the Borrowers and the Security Trustee; and, until the Agent receives such a notice, it shall be entitled to assume that a Lender is acting through the lending office of which the Agent last had notice.

 

26.17

Security over Lenders’ rights

In addition to the other rights provided to Lenders under this Clause 26, each Lender may without consulting with or obtaining consent from, any Borrower or any Security Party, at any time charge, assign or otherwise create a Security Interest in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:

 

(a)

any charge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and

 

(b)

in the case of any Lender which is a fund, any charge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities;

except that no such charge, assignment or Security Interest shall:

 

  (i)

release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security Interest for the Lender as a party to any of the Finance Documents; or

 

    

require any payments to be made by any Borrower or any Security Party or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents.

 

26.18

Replacement of a Reference Bank

If any Reference Bank ceases to be a Lender or is unable on a continuing basis to supply quotations for the purposes of Clause 5 then, unless the Borrowers, the Agent and the Majority Lenders otherwise agree, the Agent, acting on the instructions of the Majority Lenders, and after consulting with the Borrowers, shall appoint another bank (whether or not a Lender) to be a replacement Reference Bank; and, when that appointment comes into effect, the first-mentioned Reference Bank’s appointment shall cease to be effective.

 

26.19

Securitisation

Each Borrower shall, and the Borrowers shall procure that each Security Party will, assist the Agent and/or any Lender in achieving a successful securitisation (or similar transaction) in respect of the Loan and the Finance Documents and such Security Party’s reasonable costs for providing such assistance shall be met by the relevant Lender.

 

26.20

No additional costs

If a Transferor Lender assigns or transfers any of its rights or obligations under the Finance Documents and as a result of circumstances existing at the date the assignment or transfer occurs, a Borrower or a Security Party would be obliged to make a payment to the Transferee Lender under Clause 22.2 or under that clause as incorporated by reference or in full in any other Finance Document, then the Transferee Lender is only entitled to receive payment under that clause to the same extent as the Transferor Lender would have been if the assignment or transfer had not occurred.

 

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27

VARIATIONS AND WAIVERS 27.1 Required consents

 

(a)

Subject to Clause 27.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Borrowers and any such amendment or waiver will be binding on all Creditor Parties and the Borrowers.

 

(b)

Any instructions given by the Majority Lenders will be binding on all the Creditor Parties.

 

(c)

The Agent may effect, on behalf of any Creditor Party, any amendment or waiver permitted by this Clause.

 

27.2

Exceptions

 

(a)

An amendment or waiver that has the effect of changing or which relates to:

 

  (i)

the definition of “Majority Lenders” or “Finance Documents” in Clause 1.1 (Definitions);

 

  (ii)

an extension to the date of payment of any amount under the Finance Documents;

 

  (iii)

a reduction in the Margin, the Top-up Fee or a reduction in the amount of any payment of principal, interest fees, commission or other amount payable under any of the Finance Documents;

 

  (iv)

an increase in or an extension of any Lender’s Commitment;

 

  (v)

any provision which expressly requires the consent of all the Lenders;

 

  (vi)

Clause 3 (Position of the Lenders), Clause 11.5 (Information provided to be accurate), Clause 11.6 (Provision of financial statements), Clause 11.7 (Form of financial statements), Clause 11.16 (Provision of further information), Clause 26 (Transfers and Changes in Lending Offices) or this Clause 27.2;

 

  (vii)

any release of any Security Interest, guarantee, indemnities or subordination arrangement created by any Finance Document;

 

  (viii)

any change of the currency in which the Loan is provided or any amount is payable under any of the Finance Documents;

 

  (ix)

an extension of the Availability Period; or

 

  (x)

a change in Clauses 16.4 (Distribution of payment to Creditor Parties) or 22 (Grossing-up),

may not be effected without the prior written consent of all Lenders.

 

81


(b)

An amendment or waiver which relates to the rights or obligations of the Agent, the Arranger or the Security Trustee may not be effected without the consent of the Agent, the Arranger or the Security Trustee, as the case may be.

 

27.3

Exclusion of other or implied variations

Except for a document which satisfies the requirements of Clauses 27.1 and 27.2, no document, and, subject to Clause 27.4, no act, course of conduct, failure or neglect to act, delay or acquiescence on the part of the Creditor Parties or any of them (or any person acting on behalf of any of them) shall result in the Creditor Parties or any of them (or any person acting on behalf of any of them) being taken to have varied, waived, suspended or limited, or being precluded (permanently or temporarily) from enforcing, relying on or exercising:

 

(a)

a provision of this Agreement or another Finance Document; or

 

(b)

an Event of Default; or

 

(c)

a breach by a Borrower, the Approved Manager or a Security Party of an obligation under a Finance Document or the general law; or

 

(d)

any right or remedy conferred by any Finance Document or by the general law,

and there shall not be implied into any Finance Document any term or condition requiring any such provision to be enforced, or such right or remedy to be exercised, within a certain or reasonable time.

 

27.4

Deemed consent

With respect to any amendment, variation, waiver, suspension or limit requested by any Party and which requires the approval of all the Lenders or the Majority Lenders (as the case may be), other than an amendment or supplement (or any proposal for such an amendment or supplement) in connection with a Finance Document or any other Pertinent Document required as contemplated in Clause 27.5, the Agent shall provide each Lender with written notice of such request accompanied by such detailed background information as may be reasonably necessary (in the opinion of the Agent) to determine whether to approve such action. A Lender shall be deemed to have approved such action if such Lender fails to object to such action by written notice to the Agent within 10 days of that Lender’s receipt of the Agent’s notice or such other time as the Agent may state in the relevant notice as being the time available for approval of such action.

 

273

Replacement of Screen Rate

 

  (a)

Subject to paragraph (b) of Clause 27.2, if a Screen Rate Replacement Event has occurred in relation to the Screen Rate for dollars, any amendment or waiver which relates to:

 

  (i)

providing for the use of a Replacement Benchmark in relation to (or in addition to) that currency in place of that Screen Rate; and

 

  (A)

aligning any provision of any Finance Document to the use of that Replacement Benchmark;

 

82


  (B)

enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);

 

  (C)

implementing market conventions applicable to that Replacement Benchmark;

 

  (D)

providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or

 

  (E)

adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Borrowers.

 

  (b)

If any Lender fails to respond to a request for an amendment or waiver described in paragraph (a) above within 5 Business Days (or such longer time period in relation to any request which the Borrowers and the Agent may agree) of that request being made:

 

  01

its Commitment shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage of Total Commitments has been obtained to approve that request; and

 

  (ii)

its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.

 

28

NOTICES

 

28.1

General

Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter or fax; and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.

 

28.2

Addresses for communications

A notice by letter or fax shall be sent:

 

(a)   to the Borrowers:

   c/o Navios Shipmanagement Inc.
   85 Akti Miaouli
   Piraeus 185 38
   Fax No: +30 210 4172070

 

83


for the attention of:    Vassiliki Papaefthymiou

(b)   to a Lender:

   At the address below its name in Schedule
   1 or (as the case may require) in the
   relevant Transfer Certificate.

(c)   to the Agent and Security Trustee:

  

for general matters:

   Hamburg Commercial Bank AG
   BU Asset Based Finance / Shipping
   Gerhart-Hauptmann-Platz 50
   20095 Hamburg
   Germany
   Fax No: +302104295323
   Attn: Mr Loukas Lagaras / Mr Solon Merikas

for credit administrative matters:

   Hamburg Commercial Bank AG
   BU Business Operations
   Loan & Collateral Operations
   Gerhart-Hauptmann-Platz 50
   20095 Hamburg
   Germany
   Fax No: +49 40 3333 34167

or to such other address as the relevant Party may notify the Agent or, if the relevant Party is the Agent or the Security Trustee, the Borrowers, the Lenders and the Security Parties.

 

28.3

Effective date of notices

Subject to Clauses 28.4 and 28.5:

 

  (a)

a notice which is delivered personally or posted shall be deemed to be served, and shall take effect, at the time when it is delivered; and

 

  (b)

a notice which is sent by fax shall be deemed to be served, and shall take effect, two hours after its transmission is completed.

 

28.4

Service outside business hours

However, if under Clause 28.3 a notice would be deemed to be served:

 

  (a)

on a day which is not a business day in the place of receipt; or

 

  (b)

on such a business day, but after 5 p.m. local time,

the notice shall (subject to Clause 28.5) be deemed to be served, and shall take effect, at 9 a.m. on the next day which is such a business day.

 

28.5

Illegible notices

Clauses 28.3 and 28.4 do not apply if the recipient of a notice notifies the sender within one hour after the time at which the notice would otherwise be deemed to be served that the notice has been received in a form which is illegible in a material respect.

 

84


28.6

Valid notices

A notice under or in connection with a Finance Document shall not be invalid by reason that its contents or the manner of serving it do not comply with the requirements of this Agreement or, where appropriate, any other Finance Document under which it is served if:

 

(a)

the failure to serve it in accordance with the requirements of this Agreement or other Finance Document, as the case may be, has not caused any party to suffer any significant loss or prejudice; or

 

(b)

in the case of incorrect and/or incomplete contents, it should have been reasonably clear to the party on which the notice was served what the correct or missing particulars should have been.

 

28.7

Electronic communication

Any communication from the Agent or the other Creditor Parties made by electronic means will be sent unsecured and without electronic signature, however, the Borrowers may request the Agent and the other Creditor Parties at any time in writing to change the method of electronic communication from unsecured to secured electronic mail communication.

The Borrowers hereby acknowledge and accept the risks associated with the use of unsecured electronic mail communication including, without limitation, risk of delay, loss of data, confidentiality breach, forgery, falsification and malicious software. The Agent and the other Creditor Parties shall not be liable in any way for any loss or damage or any other disadvantage suffered by the Borrowers resulting from such unsecured electronic mail communication.

If the Borrowers (or any of them) or any other Security Party wish to cease all electronic communication, they shall give written notice to the Agent and the other Creditor Parties accordingly after receipt of which notice the Parties shall cease all electronic communication.

For as long as electronic communication is an accepted form of communication, the Parties shall:

 

(a)

notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

 

(b)

notify each other of any change to their respective addresses or any other such information supplied to them; and

in case electronic communication is sent to recipients with the domain <domain with ending>, the parties shall without undue delay inform each other if there are changes to the said domain or if electronic communication shall thereafter be sent to individual e-mail addresses.

 

28.8

English language

Any notice under or in connection with a Finance Document shall be in English.

 

28.9

Meaning of “notice”

In this Clause 28, “notice” includes any demand, consent, authorisation, approval, instruction, waiver or other communication.

 

85


29

JOINT AND SEVERAL LIABILITY

 

29.1

General

All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be several and, if and to the extent consistent with Clause 29.2, joint.

 

29.2

No impairment of Borrower’s obligations

The liabilities and obligations of a Borrower shall not be impaired by:

 

(a)

this Agreement being or later becoming void, unenforceable or illegal as regards the other Borrowers;

 

(b)

any Lender or the Security Trustee entering into any rescheduling, refinancing or other arrangement of any kind with the other Borrowers;

 

(c)

any Lender or the Security Trustee releasing the other Borrowers or any Security Interest created by a Finance Document; or

 

(d)

any combination of the foregoing.

 

29.3

Principal debtors

Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and no Borrower shall in any circumstances be construed to be a surety for the obligations of the other Borrowers under this Agreement.

 

29.4

Subordination

Subject to Clause 29.5, during the Security Period, no Borrower shall:

 

(a)

claim any amount which may be due to it from the other Borrowers whether in respect of a payment made, or matter arising out of, this Agreement or any Finance Document, or any matter unconnected with this Agreement or any Finance Document; or

 

(b)

take or enforce any form of security from the other Borrowers for such an amount, or in any other way seek to have recourse in respect of such an amount against any asset of the other Borrowers; or

 

(c)

set off such an amount against any sum due from it to the other Borrowers; or

 

(d)

prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Borrowers or other Security Party; or

 

(e)

exercise or assert any combination of the foregoing.

 

29.5

Borrowers’ required action

If during the Security Period, the Agent, by notice to a Borrower, requires it to take any action referred to in paragraphs (a) to (d) of Clause 29.4, in relation to the other Borrowers, that Borrower shall take that action as soon as practicable after receiving the Agent’s notice.

 

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30

SUPPLEMENTAL

 

30.1

Rights cumulative, non-exclusive

The rights and remedies which the Finance Documents give to each Creditor Party are:

 

(a)

cumulative;

 

(b)

may be exercised as often as appears expedient; and

 

(c)

shall not, unless a Finance Document explicitly and specifically states so, be taken to exclude or limit any right or remedy conferred by any law.

 

30.2

Severability of provisions

If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal, that shall not affect the validity, enforceability or legality of the other provisions of that Finance Document or of the provisions of any other Finance Document.

 

30.3

Counterparts

A Finance Document may be executed in any number of counterparts.

 

30.4

Third party rights

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

 

30.5

Benefit and binding effect

The terms of this Agreement shall be binding upon, and shall enure to the benefit of, the Parties and their respective (including subsequent) successors and permitted assigns and transferees.

 

30.6

Electronic disclosure

 

(a)

The Borrowers hereby recognise as binding any relevant documents (whether signed or not) to fulfil the disclosure of the financial circumstances in accordance with Sec. 18 of the German Banking Act (KWG) that were or are, after the date of this Agreement, submitted to Hamburg Commercial Bank AG electronically or on data carriers through the Borrower, any Security Party or any third party and declares such documents as complete and correct.

 

(b)

Any documents submitted to Hamburg Commercial Bank AG electronically or on data carriers in accordance with Sec. 18 of the German Banking Act (KWG) have the same legal significance as any signed documents in paper form.

 

31

LAW AND JURISDICTION

 

31.1

English law

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

 

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31.2

Exclusive English jurisdiction

Subject to Clause 31.3, the courts of England shall have exclusive jurisdiction to settle any Dispute.

 

31.3

Choice of forum for the exclusive benefit of the Creditor Parties

Clause 31.2 is for the exclusive benefit of the Creditor Parties, each of which reserves the right:

 

(a)

to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and

 

(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.

No Borrower shall commence any proceedings in any country other than England in relation to a Dispute.

 

31.4

Process agent

Each Borrower Irrevocably appoints Hill Dickinson LLP at their office for the time being, presently at The Broadgate Tower, 20 Primrose Street, London EC2A 2EW, England 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 a Dispute.

 

31.5

Creditor Party rights unaffected

Nothing in this Clause 31 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.

 

31.6

Meaning of “proceedings” and “Dispute”

In this Clause 31, “proceedings” means proceedings of any kind, including an application for a provisional or protective measure and a “Dispute” means any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement) or any non-contractual obligation arising out of or in connection with this Agreement.

THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.

 

88


EXECUTION PAGE

 

BORROWERS         
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
CERULEAN SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
CADMIUM SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
CELADON SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
BUFF SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
BRANDEIS SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      
SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of    (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
BOYSENBERRY SHIPPING CORPORATION    )   
in the presence of:    /s/ Aikaterina Dimitriou    )   
   Aikaterina Dimitriou      
   Athens, Greece      

 

89


SIGNED by STRATIGOULA SAKELLARIA    )   
for and on behalf of (attorney-in-fact)    )    /s/ STRATIGOULA SAKELLARIA
BOLE SHIPPING CORPORATION    )   
in the presence of:    )   
   /s/ Aikaterina Dimitriou      
   Aikaterina Dimitriou      
   Athens, Greece      
LENDERS      
SIGNED by UELINA UANTIA    )   
for and on behalf of    )    /s/ UELINA UANTIA
HAMBURG COMMERCIAL BANK AG    )   
in the presence of:    )   
   /s/ Aikaterina Dimitriou      
   Aikaterina Dimitriou      
   Athens, Greece      
AGENT      
SIGNED by UELINA UANTIA    )   
for and on behalf of    )    /s/ UELINA UANTIA
HAMBURG COMMERCIAL BANK AG    )   
in the presence of:    )   
   /s/ Aikaterina Dimitriou      
   Aikaterina Dimitriou      
   Athens, Greece      
MANDATED LEAD ARRANGER      
SIGNED by UELINA UANTIA    )   
for and on behalf of    )    /s/ UELINA UANTIA
HAMBURG COMMERCIAL BANK AG    )   
in the presence of:    )   
   /s/ Aikaterina Dimitriou      
   Aikaterina Dimitriou      
   Athens, Greece      
SECURITY TRUSTEE      
SIGNED by UELINA UANTIA    )   
for and on behalf of    )    /s/ UELINA UANTIA
HAMBURG COMMERCIAL BANK AG    )   
in the presence of:    )   
   /s/ Aikaterina Dimitriou      
   Aikaterina Dimitriou      
   Athens, Greece      

 

90

EX-4.5

Exhibit 4.5

 

 

1.  

Shipbroker

 

N/A

  

2.  Place and date

3.  

Owners/Place of business (Cl. 1)

GREAT RHODES LIMITED

 

Trust Company Complex, Ajeltake Road, Ajeltake Island,

Majuro, Marshall Islands MH96960

  

4.  Bareboat Charterers/Place of business

(Cl. 1) RHODES SHIPPING CORPORATION

 

Trust Company Complex, Ajeltake Road, Ajeltake

Island, Majuro, Marshall Islands MH96960

5.  

Vessel’s name, call sign and flag (Cl. 1 and 3)

NAVE CASSIOPEIA

D5CT4

Liberia

6.  

Type of Vessel

Crude Oil Tanker

  

7.  GT/NT

42,341

22,064

8.  

When/Where built

2012

SUNGDONG S.B. & MARINE ENG’G CO., LTD.

  

9.  Total DWT (abt.) in metric tons on summer freeboard 74,711

10.  

Classification Society (Cl. 3)

American Bureau of Shipping

  

11.  Date of last special survey by the Vessel’s classification society

19 August 2017

12  

Further particulars of Vessel (also indicate minimum number of months’ validity of class certificates agreed acc. to Cl. 3)

IMO No.: 9589932

Length: 221.04 metres

Breadth: 32.24 metres

Depth: 20.90 metres

13.  

Port or Place of delivery (Cl. 3)

The place of delivery specified under the MOA (as defined in Clause 59 (Definitions)

  

14.  Time for delivery (Cl. 4)

    See Clause 34 (Delivery of Vessel)

  

15.  Cancelling date (Cl. 5)

See Clause 33

(Cancellation)

16.  

Port or Place of redelivery (Cl. 15)

See Clause 40 (Termination, Redelivery and Total Loss)

  

17.  No. of months’ validity of trading and class certificates upon redelivery (Cl. 15)

 

See Clause 40 (Termination, Redelivery and Total Loss)

18.   Running days’ notice if other than stated in Cl. 4 N/A   

19.  Frequency of dry-docking (Cl. 10(g))

In accordance with Classification Society and Flag State requirements

20.  

Trading limits (Cl. 6)

Worldwide within International Navigating Limits

21.  

Charter period (Cl. 2)

See Clause 32 (Charter Period)

  

22.  Charter hire (Cl. 11)

See Clause 36 (Charterhire, Advance Charterhire and Deposit)

23.   New class and other safety requirements (state percentage of Vessel’s insurance value acc. to Box 29)(Cl. 10(a)(ii)) N/A
24.  

Rate of interest payable acc. to Cl. 11 (f) and, if applicable, acc.

to PART IV

See Clause 36.11 - neither Clause 11(f) nor Part IV applies

  

25.  Currency and method of payment (Cl. 11)

US Dollars (See also Clause 36 (Charterhire, Advance Charterhire and Deposit))

26.  

Place of payment; also state beneficiary and bank account (Cl. 11)

See Clause 36 (Charterhire, Advance Charterhire and Deposit)

  

27.  Bank Corporateguarantee/bond (sum and place) (Cl.

  

24)  (optional)

See Clause 24

28.  

Mortgage(s), if any (state whether 12(a) or (b) applies; if 12(b) applies state date of Financial Instrument and name of Mortgagee(s)/Place of business) (Cl. 12)

See Clause 35 (Quiet Enjoyment); neither Clause 12(a) nor (b) applies

  

29.  Insurance (hull and machinery and war risks) (state value
acc. to Cl. 13(f) or, if applicable, acc. to Cl. 14(k)) (also state if Cl. 14 applies)

 

See Clause 38 (Insurance); Clause 14 does not apply

30.  

Additional insurance cover, if any, for Owners’ account limited to (Cl. 13(b) or, if applicable, Cl. 14(g))

 

See Clause 38 (Insurance)

  

31.  Additional insurance cover, if any, for Charterers’ account limited to (Cl. 13(b) or, if applicable, Cl. 14(g))

 

See Clause 38 (Insurance)

32.  

Latent defects (only to be filled in if period other than stated in Cl. 3)

N/A

  

33.  Brokerage commission and to whom payable (Cl. 27) N/A


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


34.  

Grace period (state number of clear banking days) (Cl. 28)

See Clause 44 (Termination Events)

   35.  

Dispute Resolution (state 30(a), 30(b) or 30(c); if 30(c) agreed Place of Arbitration must be stated (Cl. 30)

See Clause 30(a)

36.   War cancellation (indicate countries agreed) (Cl. 26(f)) N/A  
37.  

Newbuilding Vessel (indicate with “yes” or “no” whether PART III applies) (optional)

 

No, Part III does not apply

   38.  

Name and place of Builders (only to be filled in if PART III applies)

N/A

39.   Vessel’s Yard Building No. (only to be filled in if PART III applies) N/A    40.  

Date of Building Contract (only to be filled in if PART III

applies)

N/A

41.  

Liquidated damages and costs shall accrue to (state party acc. to Cl. 1)

a)  N/A

b)  N/A

c)  N/A

42.  

Hire/Purchase agreement (indicate with “yes” or “no” whether PART IV applies) (optional)

No, Part IV does not apply

   43.  

Bareboat Charter Registry (indicate with “yes” or “no” whether PART V applies) (optional)

No, Part V does not apply

44.  

Flag and Country of the Bareboat Charter Registry (only to be filled in if PART V applies)

N/A

   45.  

Country of the Underlying Registry (only to be filled in if PART V applies)

N/A

46.   Number of additional clauses covering special provisions, if agreed Clause 32 (Charter Period) to Clause 59 (Definitions)  

PREAMBLE - It is mutually agreed that this Contract shall be performed subject to the conditions contained in this Charter which shall include PART I and PART II. In the event of a conflict of conditions, the provisions of PART I shall prevail over those of PART II to the extent of such conflict but no further. It is further mutually agreed that PART III and/or PART IV and/or PART V shall only apply and only form part of this Charter if expressly agreed and stated in Boxes 37, 42 and 43. If PART III and/or PART IV and/or PART V apply, it is further agreed that in the event of a conflict of conditions, the provisions of PART I and PART II shall prevail over those of PART III and/or PART IV and/or PART V to the extent of such conflict but no further.

 

Signature (Owners)

For and on behalf of GREAT RHODES LIMITED

 

            /s/ Yang Guangyi

Name: YANG GUANGYI

Title:   Attorney-in-fact

  

Signature (Charterers)

For and on behalf of RHODES SHIPPING CORPORATION

 

            /s/ Georgios Panagakis

Name: GEORGIOS PANAGAKIS

Title:   Attorney-in-fact


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

1

1. Definitions See also Clause 59 (Definitions)

 

2

In this Charter, the following terms shall have the

 

3

meanings hereby assigned to them:

 

4

“The Owners” shall mean the party identified in Box 3;

 

5

“The Charterers” shall mean the party identified in Box 4;

 

6

“The Vessel” shall mean the vessel named in Box 5 and

 

7

with particulars as stated in Boxes 6 to 12.

 

8

“Financial Instrument” means the mortgage, deed of

 

9

covenant or other such financial security instrument as

 

10

annexed to this Charter and stated in Box 28.

 

11

2 Charter Period

 

12

In consideration of the hire detailed in Box 22,

 

13

the Owners have agreed to let and the Charterers have

 

14

agreed to hire the Vessel for the period stated in Box 21

 

15

(“The Charter Period”). See also Clauses 32 (Charter

 

 

pPeriod) and Clause 36 (Charterhire, aAdvance cCharterhire and dDeposit).

 

16

3. Delivery

 

17

(not applicable when Part III applies, as indicated in Box 37)

 

18

(a) The Owners shall before and at the time of delivery

 

19

exercise due diligence to make the Vessel seaworthy

 

20

And in every respect ready in hull, machinery and

 

21

equipment for service under this Charter.

 

22

The Vessel shall be delivered by the Owners and taken

 

23

over by the Charterers at the port or place indicated in

 

24

Box 13 in such ready safe berth as the Charterers may

 

25

direct.

 

 

26

(b) The Vessel shall beis properly documented on

 

27

delivery in accordance with the laws of the fFlag State

 

28

indicated in Box 5 and the requirements of the

 

29

cClassification sSociety stated in Box 10. The Vessel upon

 

30

delivery shall have her survey cycles up to date and

 

31

trading and class certificates valid for at least the number

 

32

of months agreed in Box 12.

 

33

(c) The delivery of the Vessel by the Owners and the

 

34

taking over of the Vessel by the Charterers shall

 

35

constitute a full performance by the Owners of all the

 

36

Owners’ obligations under this Clause 3, and thereafter

 

37

the Charterers shall not be entitled to make or assert

 

38

any claim against the Owners on account of any

 

39

conditions, representations or warranties expressed or

 

40

implied with respect to the Vessel but the Owners shall

 

41

be liable for the cost of but not the time for repairs or

 

42

renewals occasioned by latent defects in the Vessel,

 

43

her machinery or appurtenances, existing at the time of

 

44

delivery under this Charter, provided such defects have

 

45

manifested themselves within twelve (12) months after

 

46

delivery unless otherwise provided in Box 32.

 

47

4. Time for Delivery See Clauses 32 (Charter pPeriod) and 34 (Delivery of Vessel)

 

48

(not applicable when Part III applies, as indicated in Box 37)

 

49

The Vessel shall not be delivered before the date

 

50

indicated in Box 14 without the Charterers’ consent and

 

51

the Owners shall exercise due diligence to deliver the

 

52

Vessel not later than the date indicated in Box 15.

 

53

Unless otherwise agreed in Box 18, the Owners shall

 

54

give the Charterers not less than thirty (30) running days’

 

55

preliminary and not less than fourteen (14) running days’

 

56

definite notice of the date on which the Vessel is

 

57

expected to be ready for delivery.

58

The Owners shall keep the Charterers closely advised

 

59

of possible changes in the Vessel’s position.

 

60

5. Cancelling See Clause 33 (Cancellation)

 

61

(not applicable when Part III applies, as indicated in Box 37)

 

62

(a) Should the Vessel not be delivered latest by the

 

63

cancelling date indicated in Box 15, the Charterers shall

 

64

have the option of cancelling this Charter by giving the

 

65

Owners notice of cancellation within thirty six (36)

 

66

running hours after the cancelling date stated in Box

 

67

15, failing which this Charter shall remain in full force

 

68

and effect.

 

69

(b) If it appears that the Vessel will be delayed beyond

 

70

the cancelling date, the Owners may, as soon as they

 

71

are in a position to state with reasonable certainty the

 

72

day on which the Vessel should be ready, give notice

 

73

thereof to the Charterers asking whether they will

 

74

exercise their option of cancelling, and the option must

 

75

then be declared within one hundred and sixty eight

 

76

(168) running hours of the receipt by the Charterers of

 

77

such notice or within thirty six (36) running hours after

 

78

the cancelling date, whichever is the earlier. If the

 

79

Charterers do not then exercise their option of cancelling,

 

80

the seventh day after the readiness date stated in the

 

81

Owners’ notice shall be substituted for the cancelling

 

82

date indicated in Box 15 for the purpose of this Clause 5.

 

83

(c) Cancellation under this Clause 5 shall be without

 

84

prejudice to any claim the Charterers may otherwise

 

85

have on the Owners under this Charter.

 

86

6. Trading Restrictions See also Clauses 46.1(n) and 46.1(o)

 

87

The Vessel shall be employed in lawful trades for the

 

88

carriage of suitable lawful merchandise within the trading

 

89

limits indicated in Box 20.

 

90

The Charterers undertake not to employ the Vessel or

 

91

suffer the Vessel to be employed otherwise than in

 

92

conformity with the terms of the contracts of insurance

 

93

(including any warranties expressed or implied therein)

 

94

without first obtaining the consent of the insurers to such

 

95

employment and complying with such requirements as

 

96

to extra premium or otherwise as the insurers may

 

97

prescribe.

 

98

The Charterers also undertake not to employ the Vessel

 

99

or suffer her employment in any trade or business which

 

100

is forbidden by the law of any country to which the Vessel

 

101

may sail or is otherwise illicit or in carrying illicit or

 

102

prohibited goods or in any manner whatsoever which

 

103

may render her liable to condemnation, destruction,

 

104

seizure or confiscation.

 

105

Notwithstanding any other provisions contained in this

 

106

Charter it is agreed that nuclear fuels or radioactive

 

107

products or waste are specifically excluded from the

 

108

cargo permitted to be loaded or carried under this

 

109

Charter. This exclusion does not apply to radio-isotopes

 

110

used or intended to be used for any industrial,

 

111

commercial, agricultural, medical or scientific purposes

 

112

provided the Owners’ prior approval has been obtained

 

113

to loading thereof.

 

114

7. Surveys on Delivery and Redelivery

 

115

(not applicable when Part III applies, as indicated in Box 37)

 

116

The Owners and Charterers shall each appoint

 

117

surveyors for the purpose of determining and agreeing

 

118

in writing the condition of the Vessel at the time of

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

119

delivery and redelivery pursuant to Clause 40.3 (with the

 

 

relevant costs paid by the Charterers) hereunder. The Owners shall

 

120

bear all expenses of the On hire Survey including loss

 

121

of time, if any, and the Charterers shall bear all expenses

 

122

of the Off hire Survey including loss of time, if any, at

 

123

the daily equivalent to the rate of hire or pro rata thereof.

 

124

8. Inspection

 

125

The Owners shall have the right at any time after giving

 

126

reasonable notice to the Charterers to inspect or survey

 

127

the Vessel or instruct a duly authorised surveyor to carry

 

128

out such survey on their behalf:-

 

129

(a) to ascertain the condition of the Vessel and satisfy

 

130

themselves that the Vessel is being properly repaired

 

131

and maintained either (i) once every calendar year provided no Potential Termination Event or Termination Event has occurred (after giving reasonable notice to the Charterers and provided that the Owners do not unduly interfere with or cause delay to the commercial operation of the Vessel) or (ii) at any time following the occurrence of a Potential Termination Event or Termination Event. The costs and fees for such inspection

 

132

or survey shall be paid by the Charterers Owners unless the Vessel

 

133

is found to require repairs or maintenance in order to

 

134

achieve the condition so provided;

 

135

(b) in dry-dock if the Charterers have not dry-docked

 

136

Her in accordance with Clause 10(g). The costs and fees

 

137

for such inspection or survey shall be paid by the

 

138

Charterers; and

 

139

(c) for any other commercial reason they consider

 

140

necessary (provided it does not unduly interfere with

 

141

the commercial operation of the Vessel). The costs and

 

142

fees for such inspection and survey shall be paid by the

 

143

CharterersOwners.

 

144

All time used in respect of inspection, survey or repairs

 

145

shall be for the Charterers’ account and form part of the

 

146

Charter Period.

 

147

The Charterers shall also permit the Owners to inspect

 

148

the Vessel’s log books whenever requested and shall

 

149

whenever required by the Owners furnish them with full

 

150

information regarding any casualties or other accidents

 

151

or damage to the Vessel.

The Charterers shall provide all necessary assistance to the Owners, their representatives or agents in respect of any inspection and/or survey referred to hereunder.

 

152

9. Inventories, Oil and Stores See Clause 34.76

 

153

A complete inventory of the Vessel’s entire equipment,

 

154

outfit including spare parts, appliances and of all

 

155

consumable stores on board the Vessel shall be made

 

156

by the Charterers in conjunction with the Owners on

 

157

delivery and again on redelivery of the Vessel. The

 

158

Charterers and the Owners, respectively, shall at the

 

159

time of delivery and redelivery take over and pay for all

 

160

bunkers, lubricating oil, unbroached provisions, paints,

 

161

ropes and other consumable stores (excluding spare

 

162

parts) in the said Vessel at the then current market prices

 

163

at the ports of delivery and redelivery, respectively. The

 

164

Charterers shall ensure that all spare parts listed in the

 

165

inventory and used during the Charter Period are

 

166

replaced at their expense prior to redelivery of the

 

167

Vessel.

168

10. Maintenance and Operation

 

169

(a)(i)Maintenance and Repairs - During the Charter

 

170

Period the Vessel shall be in the full possession

 

171

and at the absolute disposal for all purposes of the

 

172

Charterers and under their complete control in

 

173

every respect. The Charterers shall maintain the

 

174

Vessel, her machinery, boilers, appurtenances and

 

175

spare parts in a good state of repair, in efficient

 

176

operating condition and in accordance with good

 

177

commercial maintenance practice and, except as

 

178

provided for in Clause 14(l), if applicable, at their

 

179

own expense they shall at all times keep the

 

180

Vessel’s Cclassification fully up to date with the Classification

 

181

Society indicated in Box 10 and maintain all other

 

182

necessary certificates in force at all times.

 

183

(ii) New Class and Other Safety Requirements - In the

 

184

event of any improvement, structural changes or

 

185

new equipment becoming necessary for the

 

186

continued operation of the Vessel by reason of new

 

187

class requirements or by compulsory legislation

 

188

costing (excluding the Charterers’ loss of time)

 

189

more than the percentage stated in Box 23, or if

 

190

Box 23 is left blank, 5 per cent. of the Vessel’s

 

191

insurance value as stated in Box 29, then the

 

192

extent, if any, to which the rate of hire shall be varied

 

193

and the ratio in which the cost of compliance shall

 

194

be shared between the parties concerned in order

 

195

to achieve a reasonable distribution thereof as

 

196

between the Owners and the Charterers having

 

197

regard, inter alia, to the length of the period

 

198

remaining under this Charter shall, in the absence

 

199

of agreement, be referred to the dispute resolution

 

200

method agreed in Clause 30.,the Charterers shall

ensure that the same are complied with and the time

and costs of compliance shall be for the Charterers’ account.

 

201

(iii) Financial Security - The Charterers shall maintain

 

202

financial security or responsibility in respect of third

 

203

party liabilities as required by any government,

 

204

including federal, state or municipal or other division

 

205

or authority thereof, to enable the Vessel, without

 

206

penalty or charge, lawfully to enter, remain at, or

 

207

leave any port, place, territorial or contiguous

 

208

waters of any country, state or municipality in

 

209

performance of this Charter without any delay. This

 

210

obligation shall apply whether or not such

 

211

requirements have been lawfully imposed by such

 

212

government or division or authority thereof.

 

213

The Charterers shall make and maintain all arrange-

 

214

ments by bond or otherwise as may be necessary to

 

215

satisfy such requirements at the Charterers’ sole

 

216

expense and the Charterers shall indemnify the Owners

 

217

against all consequences whatsoever (including loss of

 

218

time) for any failure or inability to do so.

 

219

(b) Operation of the Vessel - The Charterers shall at

 

220

their own expense and by their own procurement man,

 

221

victual, navigate, operate, supply, fuel and, whenever

 

222

required, repair the Vessel during the Charter Period

 

223

and they shall pay all charges and expenses of every

 

224

kind and nature whatsoever incidental to their use and

 

225

operation of the Vessel under this Charter, including

 

226

annual fFlag State fees and any foreign general

227

municipality and/or state taxes. The Master, officers

 

228

and crew of the Vessel shall be the servants of the Charterers

 

 

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

229

for all purposes whatsoever, even if for any reason

 

230

appointed by the Owners.

 

231

Charterers shall comply with the regulations regarding

 

232

officers and crew in force in the country of the Vessel’s

 

233

flag or any other applicable law.

 

234

(c) The Charterers shall keep the Owners and the

 

235

mortgagee(s) advised of the intended employment,

 

236

planned dry-docking (other than the periodical dry-docking referred to under paragraph (g) below) and major repairs of the Vessel,

 

237

as reasonably required.

 

238

(d) Flag and Name of Vessel – During the Charter

 

239

Period, the Charterers shall have the liberty to paint the

 

240

Vessel in their own colours, install and display their

 

241

funnel insignia and fly their own house flag. The

 

242

Charterers shall also have the liberty, with the Owners’

 

243

consent, which shall not be unreasonably withheld, to

 

244

change the flag of the Vessel (with all fees, costs and expenses arising in relation thereto for the Charterers’ account) and/or with the Owners’ consent, the name of the Vessel (with all fees, costs and expenses arising in relation thereto for the Charterers’ account) during

245

the Charter Period. Any pPainting and re-painting, instalment

246

and re-instalment, registration (including maintenance and renewal thereof) and re-registration, if

 

247

required by the Owners, shall be at the Charterers’

248

expense and time. If the existing or any replacement Flag State requires the Owners to register itself or establish a physical presence or office in the jurisdiction of such Flag State, all fees, costs and expenses payable by the Owners to register itself, establish and maintain such physical presence or office shall be for the account of the Charterers.

 

249

(e) Changes to the Vessel – Subject to Clause 10(a)(ii) and Clause 10(b),

 

250

the Charterers shall make no structural changes in the

 

251

Vessel or changeswhich materially adversely affect the Vessel’s classification or value in the machinery, boilers, appurten-

 

252

ances or spare parts thereof without in each instance

 

253

first securing the Owners’ approval thereof. If the Owners

 

254

so agree, the Charterers shall, if the Owners so require,

 

255

restore the Vessel to its former condition before the

 

256

termination of this Charter.

 

257

(f) Use of the Vessel’s Outfit, Equipment and

 

258

Appliances - The Charterers shall have the use of all

 

259

outfit, equipment, and appliances on board the Vessel

 

260

at the time of delivery, provided the same or their

 

261

substantial equivalent shall be returned to the Owners

 

262

on redelivery (without prejudice to Clauses 40.6 and 40.7 and if redelivery is required pursuant to this Charter) in the same good order and condition as

 

263

when received, ordinary wear and tear excepted. The

 

264

Charterers shall from time to time during the Charter

 

265

Period replace such items of equipment as shall be so

 

266

damaged or worn as to be unfit for use. The Charterers

 

267

are to procure that all repairs to or replacement of any

 

268

damaged, worn or lost parts or equipment be effected

 

269

in such manner (both as regards workmanship and

 

270

quality of materials) as not to diminish the value of the

 

271

Vessel. Title of any equipment so replaced shall vest in and remain with the Owners. The Charterers have the right to fit additional

272

equipment at their expense and risk (provided that no permanent structural damage is caused to the Vessel by reason of such installation) and but the Charterers

 

273

shall, at their expense, remove such equipment and make

 

 

good any damage caused by the fitting or removal of such additional equipment before the Vessel is redelivered to the Owners pursuant to Clause 40.3 and without prejudice to Clauses 40.6 and 40.7 at the end of the period if

 

274

requested by the Owners. Any equipment including radio

 

275

equipment on hire on the Vessel at time of delivery shall

 

276

be kept and maintained by the Charterers and the

 

277

Charterers shall assume the obligations and liabilities

 

278

of the Owners under any lease contracts in connection

 

279

therewith and shall reimburse the Owners for all

 

280

expenses incurred in connection therewith, also for any

 

281

new equipment required in order to comply with radio

 

282

regulations.

 

283

(g) Periodical Dry-Docking—The Charterers shall dry-

 

284

dock the Vessel and clean and paint her underwater

 

285

parts whenever the same may be necessary, but not

 

286

less than once during the period stated in Box 19 or, if

 

287

Box 19 has been left blank, every sixty (60) calendar

 

288

months after delivery or such other period as may be

 

289

required by the Classification Society or flag State.

 

290

11. Hire See Clause 36 (Charterhire, aAdvance cCharterhire and dDeposit)

 

291

(a) The Charterers shall pay hire due to the Owners

 

292

punctually in accordance with the terms of this Charter

 

293

in respect of which time shall be of the essence.

 

294

(b) The Charterers shall pay to the Owners for the hire

 

295

of the Vessel a lump sum in the amount indicated in

 

296

Box 22 which shall be payable not later than every thirty

 

297

(30) running days in advance, the first lump sum being

 

298

payable on the date and hour of the Vessel’s delivery to

 

299

the Charterers. Hire shall be paid continuously

 

300

throughout the Charter Period.

 

301

(c) Payment of hire shall be made in cash without

 

302

discount in the currency and in the manner indicated in

 

303

Box 25 and at the place mentioned in Box 26.

 

304

(d) Final payment of hire, if for a period of less than

 

305

thirty (30) running days, shall be calculated proportionally

 

306

according to the number of days and hours remaining

 

307

before redelivery and advance payment to be effected

 

308

accordingly.

 

309

(e) Should the Vessel be lost or missing, hire shall

 

310

cease from the date and time when she was lost or last

 

311

heard of. The date upon which the Vessel is to be treated

 

312

as lost or missing shall be ten (10) days after the Vessel

 

313

was last reported or when the Vessel is posted as

 

314

missing by Lloyd’s, whichever occurs first. Any hire paid

 

315

in advance to be adjusted accordingly.

 

316

(f) Any delay in payment of hire shall entitle the

 

317

Owners to interest at the rate per annum as agreed

 

318

in Box 24. If Box 24 has not been filled in, the three months

 

319

Interbank offered rate in London (LIBOR or its successor)

 

320

for the currency stated in Box 25, as quoted by the British

 

321

Bankers’ Association (BBA) on the date when the hire

 

322

fell due, increased by 2 per cent., shall apply.

 

323

(g) Payment of interest due under sub clause 11(f)

 

324

shall be made within seven (7) running days of the date

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

325

of the Owners’ invoice specifying the amount payable

 

326

or, in the absence of an invoice, at the time of the next

 

327

hire payment date.

 

328

12. Mortgage See Clause 35 (Quiet eEnjoyment)

 

329

(only to apply if Box 28 has been appropriately filled in)

 

330

*) (a) The Owners warrant that they have not effected

 

331

any mortgage(s) of the Vessel and that they shall not

 

332

effect any mortgage(s) without the prior consent of the

 

333

Charterers, which shall not be unreasonably withheld.

 

334

*) (b) The Vessel chartered under this Charter is financed

 

335

by a mortgage according to the Financial Instrument.

 

336

The Charterers undertake to comply, and provide such

 

337

information and documents to enable the Owners to

 

338

comply, with all such instructions or directions in regard

 

339

to the employment, insurances, operation, repairs and

 

340

maintenance of the Vessel as laid down in the Financial

 

341

Instrument or as may be directed from time to time during

 

342

the currency of the Charter by the mortgagee(s) in

 

343

conformity with the Financial Instrument. The Charterers

 

344

confirm that, for this purpose, they have acquainted

 

345

themselves with all relevant terms, conditions and

 

346

provisions of the Financial Instrument and agree to

 

347

acknowledge this in writing in any form that may be

 

348

required by the mortgagee(s). The Owners warrant that

 

349

they have not effected any mortgage(s) other than stated

 

350

in Box 28 and that they shall not agree to any

 

351

amendment of the mortgage(s) referred to in Box 28 or

 

352

effect any other mortgage(s) without the prior consent

 

353

of the Charterers, which shall not be unreasonably

 

354

withheld.

 

355

*) (Optional, Clauses 12(a) and 12(b) are alternatives;

 

356

indicate alternative agreed in Box 28).

 

357

13. Insurance and Repairs See also Clause 38 (Insurance)

 

358

(a) Subject and without prejudice to Clause 38 (Insurance), Dduring the Charter Period the Vessel shall be kept

 

359

insured by the Charterers at their expense against hull

360

and machinery,marine and war (including blocking and trapping) and Protection and Indemnity risks and freight, demurrage and defence risks

 

361

(and any risks against which it is compulsory to insure

 

362

for the operation of the Vessel, including but not limited to maintaining

 

363

financial security in accordance with sub-clause

 

364

10(a)(iii)) in such form as the Owners shall in writing

 

365

approve, which approval shall not be un reasonably

 

366

withheld. During the Charter Period, the Charterers shall procure (at Charterers’ expense) that there are in place innocent Owners’ interest insurance, Owner’s additional perils (pollution) insurance and if applicable Mortgagees’ interest insurance and Mortgagees’ additional perils (pollution) insurance. Such insurances as specified in this Clause 13 shall be arranged by the

 

367

Charterers to protect the interests of both the Owners

 

368

and the Charterers and the mortgageeMortgagee(s) (if any)., and

 

369

The Charterers shall be at liberty to protect under such

 

370

insurances the interests of any managers they may

 

371

appoint. Insurance policies shall cover the Owners and

 

372

the Charterers and the Mortgagees (if any) according to their respective interests.

373

Subject to the provisions of the Financial Instruments (if any), if and the agreed loss payable clauses,

 

374

any, and the approval of the Owners and the insurers,

375

the Charterers shall effect all insured repairs and shall

 

376

undertake settlement and reimbursement from the

 

377

insurers of all costs in connection with such repairs as

 

378

well as insured charges, expenses and liabilities to the

 

379

extent of coverage under the insurances herein provided

 

380

for.

 

381

The Charterers also to remain responsible for and to

 

382

effect repairs and settlement of costs and expenses

 

383

incurred thereby in respect of all other repairs not

 

384

covered by the insurances and/or not exceeding any

 

385

possible franchise(s) or deductibles provided for in the

 

386

insurances.

 

387

All time used for repairs under the provisions of sub-

 

388

clause 13(a) and for repairs of latent defects according

 

389

to Clause 3(c) above, including any deviation, shall be

 

390

for the Charterers’ account.

 

391

(b) If the conditions of the above insurances permit

 

392

additional insurance to be placed by the parties, such

 

393

cover shall be limited to the amount for each party set

 

394

out in Box 30 and Box 31, respectively. The Owners or

 

395

the Charterers as the case may be shall immediately

 

396

furnish the other party Owners with particulars of any additional

 

397

insurance effected, including copies of any cover notes

 

398

or policies and the written consent of the insurers of

 

399

any such required insurance in any case where the

 

400

consent of such insurers is necessary.

 

401

(c) The Charterers shall upon the request of the

 

402

Owners, provide information and promptly execute such

 

403

documents as may be required to enable the Owners to

 

404

comply with the insurance provisions of theeach Financial

 

405

Instrument (if any).

 

406

(d) Subject to the provisions of the Financial Instru-

407

ments, if any, and Clauses 38 (Insurance) and Clause 40 (Termination, rRedelivery and tTotal lLoss) should the Vessel become an actual,

 

408

constructive, compromised or agreed t a Total lLoss under

 

409

the insurances required under sub clause 13(a), all

 

410

insurance payments for such loss shall be paid to the

 

411

Owners (or if applicable, their financiers) in accordance with the agreed loss payable clauses who shall distribute the moneys between the

 

412

Owners and the Charterers according to their respective

 

413

interests. The Charterers undertake to notify the Owners

 

414

and the mortgageeMortgagee(s), if any, of any occurrences in

 

415

consequence of which the Vessel is likely to become a

 

416

tTotal lLoss as defined in this Clause.

 

417

(e) The Owners shall upon the request of the

 

418

Charterers and subject to the Owners’ approval of such request, promptly execute such documents as may

 

419

be required to enable the Charterers to abandon the

 

420

Vessel to insurers and claim a constructive total loss.

 

421

(f) For the purpose of insurance coverage against hull

 

422

and machinery and war risks under the provisions of

 

423

sub-clause 13(a), the value of the Vessel is the sum

 

424

indicated in Box 29Clause 38 (Insurance).

 

425

14. Insurance, Repairs and Classification - intentionally omitted

 

426

(Optional, only to apply if expressly agreed and stated

 

427

in Box 29, in which event Clause 13 shall be considered

 

428

deleted).

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

429 (a) During the Charter Period the Vessel shall be kept

 

430

insured by the Owners at their expense against hull and

 

431

machinery and war risks under the form of policy or

 

432

policies attached hereto. The Owners and/or insurers

 

433

shall not have any right of recovery or subrogation

 

434

against the Charterers on account of loss of or any

 

435

damage to the Vessel or her machinery or appurt

 

436

enances covered by such insurance, or on account of

 

437

payments made to discharge claims against or liabilities

438 of the Vessel or the Owners covered by such insurance.

439 Insurance policies shall cover the Owners and the

 

440

Charterers according to their respective interests.

 

441

(b) During the Charter Period the Vessel shall be kept

 

442

insured by the Charterers at their expense against

 

443

Protection and Indemnity risks (and any risks against

444 which it is compulsory to insure for the operation of the

 

445

Vessel, including maintaining financial security in

 

446

accordance with sub clause 10(a)(iii)) in such form as

 

447

the Owners shall in writing approve which approval shall

 

448

not be unreasonably withheld.

449 (c) In the event that any act or negligence of the

450 Charterers shall vitiate any of the insurance herein

451 provided, the Charterers shall pay to the Owners all

452 losses and indemnify the Owners against all claims and

 

453

demands which would otherwise have been covered by

 

454

such insurance.

455 (d) The Charterers shall, subject to the approval of the

 

456

Owners or Owners’ Underwriters, effect all insured

 

457

repairs, and the Charterers shall undertake settlement

 

458

of all miscellaneous expenses in connection with such

 

459

repairs as well as all insured charges, expenses and

460 liabilities, to the extent of coverage under the insurances

 

461

provided for under the provisions of sub clause 14(a).

 

462

The Charterers to be secured reimbursement through

 

463

the Owners’ Underwriters for such expenditures upon

 

464

presentation of accounts.

465 (e) The Charterers to remain responsible for and to

 

466

effect repairs and settlement of costs and expenses

 

467

incurred thereby in respect of all other repairs not

 

468

covered by the insurances and/or not exceeding any

 

469

possible franchise(s) or deductibles provided for in the

 

470

insurances.

471 (f) All time used for repairs under the provisions of

 

472

sub clauses 14(d) and 14(e) and for repairs of latent

 

473

defects according to Clause 3 above, including any

 

474

deviation, shall be for the Charterers’ account and shall

 

475

form part of the Charter Period.

 

476

The Owners shall not be responsible for any expenses

 

477

as are incident to the use and operation of the Vessel

 

478

for such time as may be required to make such repairs.

479 (g) If the conditions of the above insurances permit

 

480

additional insurance to be placed by the parties such

 

481

cover shall be limited to the amount for each party set

 

482

out in Box 30 and Box 31, respectively. The Owners or

 

483

the Charterers as the case may be shall immediately

 

484

furnish the other party with particulars of any additional

 

485

insurance effected, including copies of any cover notes

486 or policies and the written consent of the insurers of

 

487

any such required insurance in any case where the

 

488

consent of such insurers is necessary.

489 (h) Should the Vessel become an actual, constructive,

490 compromised or agreed total loss under the insurances

 


 

491

required under sub clause 14(a), all insurance payments

 

492

for such loss shall be paid to the Owners, who shall

 

493

distribute the moneys between themselves and the

 

494

Charterers according to their respective interests.

 

495

(i) If the Vessel becomes an actual, constructive,

 

496

compromised or agreed total loss under the insurances

 

497

arranged by the Owners in accordance with sub clause

 

498

14(a), this Charter shall terminate as of the date of such

 

499

loss.

 

500

(j) The Charterers shall upon the request of the

 

501

Owners, promptly execute such documents as may be

 

502

required to enable the Owners to abandon the Vessel

 

503

to the insurers and claim a constructive total loss.

 

504

(k) For the purpose of insurance coverage against hull

 

505

and machinery and war risks under the provisions of

 

506

sub clause 14(a), the value of the Vessel is the sum

 

507

indicated in Box 29.

 

508

(l) Notwithstanding anything contained in sub clause

 

509

10(a), it is agreed that under the provisions of Clause

 

510

14, if applicable, the Owners shall keep the Vessel’s

 

511

Class fully up to date with the Classification Society

 

512

indicated in Box 10 and maintain all other necessary

 

513

certificates in force at all times.

 

514

15. Redelivery See Clause 40 (Termination, rRedelivery and tTotal lLoss)

 

515

At the expiration of the Charter Period the Vessel shall

 

516

be redelivered by the Charterers to the Owners at a

 

517

safe and ice free port or place as indicated in Box 16, in

 

518

such ready safe berth as the Owners may direct. The

 

519

Charterers shall give the Owners not less than thirty

520

(30) running days’ preliminary notice of expected date,

 

521

range of ports of redelivery or port or place of redelivery

 

522

and not less than fourteen (14) running days’ definite

 

523

notice of expected date and port or place of redelivery.

 

524

Any changes thereafter in the Vessel’s position shall be

 

525

notified immediately to the Owners.

 

526

The Charterers warrant that they will not permit the

 

527

Vessel to commence a voyage (including any preceding

 

528

ballast voyage) which cannot reasonably be expected

 

529

to be completed in time to allow redelivery of the Vessel

 

530

within the Charter Period. Notwithstanding the above,

 

531

should the Charterers fail to redeliver the Vessel within

 

532

The Charter Period, the Charterers shall pay the daily

 

533

equivalent to the rate of hire stated in Box 22 plus 10

 

534

per cent. or to the market rate, whichever is the higher,

 

535

for the number of days by which the Charter Period is

 

536

exceeded. All other terms, conditions and provisions of

 

537

this Charter shall continue to apply.

 

538

Subject to the provisions of Clause 10, the Vessel shall

 

539

be redelivered to the Owners in the same or as good

 

540

structure, state, condition and class as that in which she

 

541

was delivered, fair wear and tear not affecting class

 

542

excepted.

 

543

The Vessel upon redelivery shall have her survey cycles

 

544

up to date and trading and class certificates valid for at

 

545

least the number of months agreed in Box 17.

 

546

16. Non-Lien

 

547

Other than Permitted Security Interests, Tthe Charterers will not suffer, nor permit to be continued,

 

548

any lien or encumbrance incurred by them or their

 

549

agents, which might have priority over the title and

 

550

interest of the Owners in the Vessel. The Charterers

 

 

Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

551

further agree to fasten to the Vessel in a conspicuous

 

552

place and to keep so fastened during the Charter Period

 

553

a notice reading as follows:

 

554

“This Vessel is the property of (name of Owners). It is

 

555

under charter to (name of Charterers) and by the terms

 

556

of the Charter Party neither the Charterers nor the

 

557

Master have any right, power or authority to create, incur

 

558

or permit to be imposed on the Vessel any lien

 

559

whatsoever.”

or a notice in such form as required by any Mortgagee(s).

 

560

17. Indemnity See Clauses 37.34, 38.15, 38.16, 40.5, 41.2 and 50

 

561

(a) The Charterers shall indemnify the Owners against

 

562

any loss, damage or expense incurred by the Owners

 

563

arising out of or in relation to the operation of the Vessel

 

564

by the Charterers, and against any lien of whatsoever

 

565

nature arising out of an event occurring during the

 

566

Charter Period. If the Vessel be arrested or otherwise

 

567

detained by reason of claims or liens arising out of her

 

568

operation hereunder by the Charterers, the Charterers

 

569

shall at their own expense take all reasonable steps to

 

570

secure that within a reasonable time the Vessel is

 

571

released, including the provision of bail.

 

572

Without prejudice to the generality of the foregoing, the

 

573

Charterers agree to indemnify the Owners against all

 

574

consequences or liabilities arising from the Master,

 

575

officers or agents signing Bills of Lading or other

 

576

documents.

 

577

(b) If the Vessel be arrested or otherwise detained by

 

578

reason of a claim or claims against the Owners, the

 

579

Owners shall at their own expense take all reasonable

 

580

steps to secure that within a reasonable time the Vessel

 

581

is released, including the provision of bail.

 

582

In such circumstances the Owners shall indemnify the

 

583

Charterers against any loss, damage or expense

 

584

incurred by the Charterers (including hire paid under

 

585

this Charter) as a direct consequence of such arrest or

 

586

detention.

 

587

18. Lien

 

588

The Owners to have a lien upon all cargoes, sub-hires

 

589

and sub-freights belonging or due to the Charterers or

 

590

any sub-charterers and any Bill of Lading freight for all

 

591

claims under this Charter, and the Charterers to have a

 

592

lien on the Vessel for all moneys paid in advance and

 

593

not earned.

 

594

19. Salvage

 

595

All salvage and towage performed by the Vessel shall

 

596

be for the Charterers’ benefit and the cost of repairing

 

597

damage occasioned thereby shall be borne by the

 

598

Charterers.

 

599

20. Wreck Removal

 

600

In the event of the Vessel becoming a wreck or

 

601

obstruction to navigation the Charterers shall indemnify

 

602

the Owners against any sums whatsoever which the

 

603

Owners shall become liable to pay and shall pay in

 

604

consequence of the Vessel becoming a wreck or

 

605

obstruction to navigation.

 

606

21. General Average

 

607

The Owners shall not contribute to General Average.

 

608

22. Assignment, Sub Charter and Sale See Clause 56.1

(Assignment or transfer by the Charterers)

 


609

(a) The Charterers shall not assign this Charter nor

 

610

sub charter the Vessel on a bareboat basis except with

 

611

the prior consent in writing of the Owners, which shall

 

612

not be unreasonably withheld, and subject to such terms

 

613

and conditions as the Owners shall approve.

 

614

(b) The Owners shall not sell the Vessel during the

 

615

currency of this Charter except with the prior written

 

616

consent of the Charterers, which shall not be unreason

 

617

ably withheld, and subject to the buyer accepting an

 

618

assignment of this Charter.

 

619

23. Contracts of Carriage

 

620

*) (a) The Charterers are to procure that all documents

 

621

issued during the Charter Period evidencing the terms

 

622

and conditions agreed in respect of carriage of goods

 

623

shall contain a paramount clause incorporating any

 

624

legislation relating to carrier’s liability for cargo

 

625

compulsorily applicable in the trade; if no such legislation

 

626

exists, the documents shall incorporate the Hague-Visby

 

627

Rules. The documents shall also contain the New Jason

 

628

Clause and the Both-to-Blame Collision Clause.

 

629

*) (b) The Charterers are to procure that all passenger

 

630

tickets issued during the Charter Period for the carriage

 

631

of passengers and their luggage under this Charter shall

 

632

contain a paramount clause incorporating any legislation

 

633

relating to carrier’s liability for passengers and their

 

634

luggage compulsorily applicable in the trade; if no such

 

635

legislation exists, the passenger tickets shall incorporate

 

636

the Athens Convention Relating to the Carriage of

 

637

Passengers and their Luggage by Sea, 1974, and any

 

638

protocol thereto.

 

639

*) Delete as applicable.

640

24. BankCorporate Guarantee

 

641

(Optional, only to apply if Box 27 filled in)

 

642

The Charterers undertake to furnish, on or about the date of this Charter before delivery of

643

the Vessel, a first class bank a corporate guarantee from the Guarantor or bond in the

 

644

sum and at the place as indicated in Box 27 as guarantee, and on or about the date of this Charter the other Security Documents (as the case may be) as security, in each case

 

645

for full performance of their obligations under this

 

646

Charter.

 

647

25. Requisition/Acquisition

 

648

(a) Subject to the provisions of the Financial Instruments (if any) and the General Assignment, Iin the

event

of the Requisition for Hire of the Vessel

 

649

by any governmental or other competent authority

 

650

(hereinafter referred to as “Requisition for Hire”)

 

651

irrespective of the date during the Charter Period when

 

652

“Requisition for Hire” may occur and irrespective of the

 

653

length thereof and whether or not it be for an indefinite

 

654

or a limited period of time, and irrespective of whether it

 

655

may or will remain in force for the remainder of the

 

656

Charter Period, this Charter shall not be deemed thereby

 

657

or thereupon to be frustrated or otherwise terminated

 

658

and the Charterers shall continue to pay the stipulated

 

659

hire in the manner provided by this Charter until the time

 

660

when the Charter would have terminated pursuant to

 

661

any of the provisions hereof always provided however

662

that if all Charterhire and any other amounts due under this Charter has been paid by the Charterers, subject always to the terms of the Trust Deed, in the event of “Requisition for Hire” any Requisition

 

 

Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

663

Hire or compensation is received or receivable by the

 

664

Owners, the same -shall be payable to the Charterers during the

 

665

remainder of the Charter Period or the period of the

 

666

“Requisition for Hire” whichever be the shorter.

 

667

(b) In the event of the Owners being deprived of their

 

668

ownership in the Vessel by any Compulsory Acquisition

 

669

of the Vessel or requisition for title by any governmental

 

670

or other competent authority (hereinafter referred to as

 

671

“Compulsory Acquisition”), then, irrespective of the date

 

672

during the Charter Period when “Compulsory Acqui-

 

673

sition” may occur, this Charter shall be deemed

 

674

terminated as of the date of such “Compulsory

 

675

Acquisition”. In such event Charter Hire to be considered

 

676

as earned and to be paid up to the date and time of

 

677

such “Compulsory Acquisition”.

 

678

26. War

 

679

(a) Subject to the provisions of the Financial Instruments (if any), Ffor the purpose of this Clause, the words “War

 

680

Risks” shall include any war (whether actual or

 

681

threatened), act of war, civil war, hostilities, revolution,

 

682

rebellion, civil commotion, warlike operations, the laying

 

683

of mines (whether actual or reported), acts of piracy,

 

684

acts of terrorists, acts of hostility or malicious damage,

 

685

blockades (whether imposed against all vessels or

 

686

imposed selectively against vessels of certain flags or

 

687

ownership, or against certain cargoes or crews or

 

688

otherwise howsoever), by any person, body, terrorist or

 

689

political group, or the Government of any state

 

690

whatsoever, which may be dangerous or are likely to be

 

691

or to become dangerous to the Vessel, her cargo, crew

 

692

or other persons on board the Vessel.

 

693

(b) Without first obtaining the consent of the insurers to such employment and complying with the terms of Clause 38 (Insurance) and such other requirements as to extra insurance premiums or any other requirements as may be prescribed by the insurers, tThe Vessel, unless the written consent of the

 

694

Owners be first obtained, shall not continue to or go

 

695

through any port, place, area or zone (whether of land

 

696

or sea), or any waterway or canal, where it reasonably

 

697

appears that the Vessel, her cargo, crew or other

 

698

persons on board the Vessel, in the reasonable

 

699

judgement of the Owners, may be, or are likely to be,

 

700

exposed to War Risks. Should the Vessel be within any

 

701

such place as aforesaid, which only becomes danger-

 

702

ous, or is likely to be or to become dangerous, after her

 

703

entry into it, the Owners shall have the right to require

 

704

the Vessel to leave such area.

 

705

(c) The Vessel shall not load contraband cargo, or to

 

706

pass through any blockade, whether such blockade be

 

707

imposed on all vessels, or is imposed selectively in any

 

708

way whatsoever against vessels of certain flags or

 

709

ownership, or against certain cargoes or crews or

 

710

otherwise howsoever, or to proceed to an area where

 

711

she shall be subject, or is likely to be subject to

 

712

a belligerent’s right of search and/or confiscation.

 

713

(d) If the insurers of the war risks insurance, when

 

714

Clause 14 is applicable, should require payment of

 

715

premiums and/or calls because, pursuant to the

 

716

Charterers’ orders, the Vessel is within, or is due to enter

717

and remain within, any area or areas which are specified

 

718

by such insurers as being subject to additional premiums

 


719

because of War Risks, then such premiums and/or calls

 

720

shall be reimbursed by the Charterers to the Owners at

 

721

the same time as the next payment of hire is due.

 

722

(e) The Charterers shall have the liberty:

 

723

(i) to comply with all orders, directions, recommend-

 

724

ations or advice as to departure, arrival, routes,

 

725

sailing in convoy, ports of call, stoppages,

 

726

destinations, discharge of cargo, delivery, or in any

 

727

other way whatsoever, which are given by the

 

728

Government of the Nation under whose flag the

 

729

Vessel sails, or any other Government, body or

 

730

group whatsoever acting with the power to compel

 

731

compliance with their orders or directions;

 

732

(ii) to comply with the orders, directions or recom-

 

733

mendations of any war risks underwriters who have

 

734

the authority to give the same under the terms of

 

735

the war risks insurance;

 

736

(iii) to comply with the terms of any resolution of the

 

737

Security Council of the United Nations, any

 

738

directives of the European Community, the effective

 

739

orders of any other Supranational body which has

 

740

the right to issue and give the same, and with

 

741

national laws aimed at enforcing the same to which

 

742

the Owners are subject, and to obey the orders

 

743

and directions of those who are charged with their

 

744

enforcement.

 

745

(f) In the event of outbreak of war (whether there be a

 

746

declaration of war or not) (i) between any two or more

 

747

of the following countries: the United States of America;

 

748

Russia; the United Kingdom; France; and the People’s

 

749

Republic of China, (ii) between any two or more of the

750

countries stated in Box 36, both the Owners and the

 

751

Charterers shall have the right to cancel this Charter,

 

752

whereupon the Charterers shall redeliver the Vessel to

 

753

the Owners in accordance with Clause 15, if the Vessel

 

754

has cargo on board after discharge thereof at

 

755

destination, or if debarred under this Clause from

 

756

reaching or entering it at a near, open and safe port as

 

757

directed by the Owners, or if the Vessel has no cargo

 

758

on board, at the port at which the Vessel then is or if at

 

759

sea at a near, open and safe port as directed by the

 

760

Owners. In all cases hire shall continue to be paid in

 

761

accordance with Clause 11 and except as aforesaid all

 

762

other provisions of this Charter shall apply until

 

763

redeliverythe end of the Charter Period.

 

764

27. Commission - intentionally omitted

 

765

The Owners to pay a commission at the rate indicated

 

766

in Box 33 to the Brokers named in Box 33 on any hire

 

767

paid under the Charter. If no rate is indicated in Box 33,

 

768

the commission to be paid by the Owners shall cover

 

769

the actual expenses of the Brokers and a reasonable

 

770

fee for their work.

 

771

If the full hire is not paid owing to breach of the Charter

 

772

by either of the parties the party liable therefor shall

 

773

indemnify the Brokers against their loss of commission.

 

774

Should the parties agree to cancel the Charter, the

 

775

Owners shall indemnify the Brokers against any loss of

 

776

commission but in such case the commission shall not

 

777

exceed the brokerage on one year’s hire.

 

778

28. Termination See Clauses 40 (Termination,

rRedelivery and tTotal lLoss) and 44 (Termination

eEvents)

 

 

 

Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

779

(a) Charterers’ Default

 

780

The Owners shall be entitled to withdraw the Vessel from

 

781

the service of the Charterers and terminate the Charter

 

782

with immediate effect by written notice to the Charterers if:

 

783

(i) the Charterers fail to pay hire in accordance with

 

784

Clause 11. However, where there is a failure to

 

785

make punctual payment of hire due to oversight,

 

786

negligence, errors or omissions on the part of the

 

787

Charterers or their bankers, the Owners shall give

 

788

the Charterers written notice of the number of clear

 

789

banking days stated in Box 34 (as recognised at

 

790

the agreed place of payment) in which to rectify

 

791

the failure, and when so rectified within such

 

792

number of days following the Owners’ notice, the

 

793

payment shall stand as regular and punctual.

 

794

Failure by the Charterers to pay hire within the

 

795

number of days stated in Box 34 of their receiving

 

796

the Owners’ notice as provided herein, shall entitle

 

797

the Owners to withdraw the Vessel from the service

 

798

of the Charterers and terminate the Charter without

 

799

further notice;

 

800

(ii) the Charterers fail to comply with the requirements of:

 

801

(1) Clause 6 (Trading Restrictions)

 

802

(2) Clause 13(a) (Insurance and Repairs)

 

803

provided that the Owners shall have the option, by

 

804

written notice to the Charterers, to give the

 

805

Charterers a specified number of days grace within

 

806

which to rectify the failure without prejudice to the

 

807

Owners’ right to withdraw and terminate under this

 

808

Clause if the Charterers fail to comply with such

 

809

notice;

 

810

(iii) the Charterers fail to rectify any failure to comply

 

811

with the requirements of sub clause 10(a)(i)

 

812

(Maintenance and Repairs) as soon as practically

 

813

possible after the Owners have requested them in

 

814

writing so to do and in any event so that the Vessel’s

 

815

insurance cover is not prejudiced.

 

816

(b) Owners’ Default

 

817

If the Owners shall by any act or omission be in breach

 

818

of their obligations under this Charter to the extent that

 

819

the Charterers are deprived of the use of the Vessel

 

820

and such breach continues for a period of fourteen (14)

 

821

running days after written notice thereof has been given

 

822

by the Charterers to the Owners, the Charterers shall

 

823

be entitled to terminate this Charter with immediate effect

 

824

by written notice to the Owners.

 

825

(c) Loss of Vessel

 

826

This Charter shall be deemed to be terminated if the

 

827

Vessel becomes a total loss or is declared as a

 

828

constructive or compromised or arranged total loss. For

 

829

the purpose of this sub clause, the Vessel shall not be

 

830

deemed to be lost unless she has either become an

 

831

actual total loss or agreement has been reached with

 

832

her underwriters in respect of her constructive,

 

833

compromised or arranged total loss or if such agreement

 

834

with her underwriters is not reached it is adjudged by a

 

835

competent tribunal that a constructive loss of the Vessel

 

836

has occurred.

 

837

(d) Either party shall be entitled to terminate this

 

838

Charter with immediate effect by written notice to the

839

other party in the event of an order being made or

 

840

resolution passed for the winding up, dissolution,

 


841 liquidation or bankruptcy of the other party (otherwise

842 than for the purpose of reconstruction or amalgamation)

843 or if a receiver is appointed, or if it suspends payment,

844 ceases to carry on business or makes any special

845 arrangement or composition with its creditors.

846 (e) The termination of this Charter shall be without

847 prejudice to all rights accrued due between the parties

848 prior to the date of termination and to any claim that

849 either party might have.

850 29. Repossession

851

In the event of the Owners have made a request for redelivery of the Vessel termination of this Charter in

852 accordance with the applicable provisions of Clause 2840.3,

 

853

the Owners shall in addition have the right to repossess the Vessel

854 from the Charterers at her current or next port of call, or

855 at a port or place convenient to them without hindrance

856 or interference by the Charterers, courts or local

857 authorities. Pending physical repossession of the Vessel

 

858

in accordance with this Clause 29 and/or Clause 40 (Termination, rRedelivery and tTotal lLoss), the Charterers shall

859 hold the Vessel as gratuitous bailee only to the Owners and the Charterers shall procure that the master and crew follow the orders and directions of the Owners. .

860 The Owners shall arrange for an authorised represent

861 ative to board the Vessel as soon as reasonably

862 practicable following the termination of the Charter. The

863 Vessel shall be deemed to be repossessed by the

864 Owners from the Charterers upon the boarding of the

865 Vessel by the Owners’ representative. All arrangements

866 and expenses relating to the settling of wages,

867 disembarkation and repatriation of the Charterers’

868

Master, officers and crew shall be the sole responsibility

869 of the Charterers.

870 30. Dispute Resolution

 

871

*) (a) This Contract Charter and any non-contractual obligations airsing out of or in connection with it shall be governed by and construed

872 in accordance with English law and any dispute arising

 

873

out of or in connection with this Contract Charter shall be referred

 

874

to arbitration in London in accordance with the Arbitration

 

875

Act 1996 or any statutory modification or re-enactment

 

876

thereof save to the extent necessary to give effect to

 

877

the provisions of this Clause.

 

878

The arbitration shall be conducted in accordance with

 

879

the London Maritime Arbitrators Association (LMAA)

 

880

Terms current at the time when the arbitration proceed-

 

881

ings are commenced.

 

882

The reference shall be to three arbitrators. A party

 

883

wishing to refer a dispute to arbitration shall appoint its

 

884

arbitrator and send notice of such appointment in writing

 

885

to the other party requiring the other party to appoint its

 

886

own arbitrator within 14 calendar days of that notice and

 

887

stating that it will appoint its arbitrator as sole arbitrator

 

888

unless the other party appoints its own arbitrator and

 

889

gives notice that it has done so within the 14 days

 

890

specified. If the other party does not appoint its own

 

 

891

arbitrator and give notice that it has done so within the

 

892

14 days specified, the party referring a dispute to

 

893

arbitration may, without the requirement of any further

 

894

prior notice to the other party, appoint its arbitrator as

 

 

 

Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART II

BARECON 2001 Standard Bareboat Charter

 

895

sole arbitrator and shall advise the other party

 

896

accordingly. The award of a sole arbitrator shall be

 

897

binding on both parties as if he had been appointed by

 

898

agreement.

 

899

Nothing herein shall prevent the parties agreeing in

 

900

writing to vary these provisions to provide for the

 

901

appointment of a sole arbitrator.

 

902

In cases where neither the claim nor any counterclaim

 

903

exceeds the sum of US$50100,000 (or such other sum as

 

904

the parties may agree) the arbitration shall be conducted

 

905

in accordance with the LMAA Small Claims Procedure

 

906

current at the time when the arbitration proceedings are

 

907

commenced. The language or any arbitration proceedings shall be English.

 

908

*) (b) This Contract shall be governed by and construed

 

909

in accordance with Title 9 of the United States Code

 

910

and the Maritime Law of the United States and any

 

911

dispute arising out of or in connection with this Contract

 

912

shall be referred to three persons at New York, one to

 

913

be appointed by each of the parties hereto, and the third

 

914

by the two so chosen; their decision or that of any two

 

915

of them shall be final, and for the purposes of enforcing

 

916

any award, judgement may be entered on an award by

 

917

any court of competent jurisdiction. The proceedings

 

918

shall be conducted in accordance with the rules of the

 

919

Society of Maritime Arbitrators, Inc.

 

920

In cases where neither the claim nor any counterclaim

 

921

exceeds the sum of US$50,000 (or such other sum as

 

922

the parties may agree) the arbitration shall be conducted

 

923

in accordance with the Shortened Arbitration Procedure

 

924

of the Society of Maritime Arbitrators, Inc. current at

 

925

the time when the arbitration proceedings are commenced.

 

926

*) (c) This Contract shall be governed by and construed

 

927

in accordance with the laws of the place mutually agreed

 

928

by the parties and any dispute arising out of or in

 

929

connection with this Contract shall be referred to

 

930

arbitration at a mutually agreed place, subject to the

 

931

procedures applicable there.

 

932

(d) Notwithstanding (a), (b) or (c) above, the parties

 

933

may agree at any time to refer to mediation any

 

934

difference and/or dispute arising out of or in connection

 

935

with this Contract.

 

936

In the case of a dispute in respect of which arbitration

 

937

has been commenced under (a), (b) or (c) above, the

 

938

following shall apply:

 

939

(i) Either party may at any time and from time to time

 

940

elect to refer the dispute or part of the dispute to

 

941

mediation by service on the other party of a written

 

942

notice (the “Mediation Notice”) calling on the other

 

943

party to agree to mediation.

 

944

(ii) The other party shall thereupon within 14 calendar

945

days of receipt of the Mediation Notice confirm that

 

946

they agree to mediation, in which case the parties

 

947

shall thereafter agree a mediator within a further

 

948

14 calendar days, failing which on the application

 

949

of either party a mediator will be appointed promptly

 

950

by the Arbitration Tribunal (“the Tribunal”) or such

 

951

person as the Tribunal may designate for that

 

952

purpose. The mediation shall be conducted in such

 

953

place and in accordance with such procedure and

 

954

on such terms as the parties may agree or, in the

 

955

event of disagreement, as may be set by the

 

956

mediator.

 

957

(iii) If the other party does not agree to mediate, that

 

958

fact may be brought to the attention of the Tribunal

 

959

and may be taken into account by the Tribunal when

 

960

allocating the costs of the arbitration as between

 

961

the parties.

 

962

(iv) The mediation shall not affect the right of either

 

963

party to seek such relief or take such steps as it

 

964

considers necessary to protect its interest.

 

965

(v) Either party may advise the Tribunal that they have

 

966

agreed to mediation. The arbitration procedure shall

 

967

continue during the conduct of the mediation but

 

968

the Tribunal may take the mediation timetable into

 

969

account when setting the timetable for steps in the

 

970

arbitration.

 

971

(vi) Unless otherwise agreed or specified in the

 

972

mediation terms, each party shall bear its own costs

 

973

incurred in the mediation and the parties shall share

 

974

equally the mediator’s costs and expenses.

 

975

(vii) The mediation process shall be without prejudice

 

976

and confidential and no information or documents

 

977

disclosed during it shall be revealed to the Tribunal

 

978

except to the extent that they are disclosable under

 

979

the law and procedure governing the arbitration.

 

980

(Note: The parties should be aware that the mediation

 

981

process may not necessarily interrupt time limits.)

 

982

(e) If Box 35 in Part I is not appropriately filled in, sub clause

 

983

30(a) of this Clause shall apply. Sub clause 30(d) shall

 

984

apply in all cases.

 

985

*) Sub clauses 30(a), 30(b) and 30(c) are alternatives;

 

986

indicate alternative agreed in Box 35.

 

987

31. Notices See Clause 43 (Notices)

 

988

(a) Any notice to be given by either party to the other

 

989

party shall be in writing and may be sent by fax, telex,

 

990

registered or recorded mail or by personal service.

 

991

(b) The address of the Parties for service of such

 

992

communication shall be as stated in Boxes 3 and 4

 

993

respectively.

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART III

PROVISIONS TO APPLY FOR NEWBUILDING VESSELS ONLY

(Optional, only to apply if expressly agreed and stated in Box 37)

 

1.

Specifications and Building Contract

 

2

(a) The Vessel shall be constructed in accordance with

 

3

the Building Contract (hereafter called “the Building

 

4

Contract”) as annexed to this Charter, made between the

 

5

Builders and the Owners and in accordance with the

 

6

specifications and plans annexed thereto, such Building

 

7

Contract, specifications and plans having been counter

 

8

signed as approved by the Charterers.

 

9

(b) No change shall be made in the Building Contract or

 

10

in the specifications or plans of the Vessel as approved by

 

11

the Charterers as aforesaid, without the Charterers’

 

12

consent.

 

13

(c) The Charterers shall have the right to send their

 

14

representative to the Builders’ Yard to inspect the Vessel

 

15

during the course of her construction to satisfy themselves

 

16

that construction is in accordance with such approved

 

17

specifications and plans as referred to under sub clause

 

18

(a) of this Clause.

 

19

(d) The Vessel shall be built in accordance with the

 

20

Building Contract and shall be of the description set out

 

21

therein. Subject to the provisions of sub clause 2(c)(ii)

 

22

hereunder, the Charterers shall be bound to accept the

 

23

Vessel from the Owners, completed and constructed in

 

24

accordance with the Building Contract, on the date of

 

25

delivery by the Builders. The Charterers undertake that

 

26

having accepted the Vessel they will not thereafter raise

 

27

any claims against the Owners in respect of the Vessel’s

 

28

performance or specification or defects, if any.

 

29

Nevertheless, in respect of any repairs, replacements or

 

30

defects which appear within the first 12 months from

 

31

delivery by the Builders, the Owners shall endeavour to

 

32

compel the Builders to repair, replace or remedy any defects

 

33

or to recover from the Builders any expenditure incurred in

 

34

carrying out such repairs, replacements or remedies.

 

35

However, the Owners’ liability to the Charterers shall be

 

36

limited to the extent the Owners have a valid claim against

 

37

the Builders under the guarantee clause of the Building

 

38

Contract (a copy whereof has been supplied to the

 

39

Charterers). The Charterers shall be bound to accept such

 

40

sums as the Owners are reasonably able to recover under

 

41

this Clause and shall make no further claim on the Owners

 

42

for the difference between the amount(s) so recovered and

 

43

the actual expenditure on repairs, replacement or

 

44

remedying defects or for any loss of time incurred.

 

45

Any liquidated damages for physical defects or deficiencies

 

46

shall accrue to the account of the party stated in Box 41(a)

 

47

or if not filled in shall be shared equally between the parties.

 

48

The costs of pursuing a claim or claims against the Builders

 

49

under this Clause (including any liability to the Builders)

 

50

shall be borne by the party stated in Box 41(b) or if not

 

51

filled in shall be shared equally between the parties.

 

52

2. Time and Place of Delivery

 

53

(a) Subject to the Vessel having completed her

 

54

acceptance trials including trials of cargo equipment in

 

55

accordance with the Building Contract and specifications

 

56

to the satisfaction of the Charterers, the Owners shall give

 

57

and the Charterers shall take delivery of the Vessel afloat

 

58

when ready for delivery and properly documented at the

 

59

Builders’ Yard or some other safe and readily accessible

 

60

dock, wharf or place as may be agreed between the parties

 

61

hereto and the Builders. Under the Building Contract the

62

Builders have estimated that the Vessel will be ready for

 

63

delivery to the Owners as therein provided but the delivery

 

64

date for the purpose of this Charter shall be the date when

 

65

the Vessel is in fact ready for delivery by the Builders after

 

66

completion of trials whether that be before or after as

 

67

indicated in the Building Contract. The Charterers shall not

 

68

be entitled to refuse acceptance of delivery of the Vessel

 

69

and upon and after such acceptance, subject to Clause

 

70

1(d), the Charterers shall not be entitled to make any claim

 

71

against the Owners in respect of any conditions,

 

72

representations or warranties, whether express or implied,

 

73

as to the seaworthiness of the Vessel or in respect of delay

 

74

in delivery.

 

75

(b) If for any reason other than a default by the Owners

 

76

under the Building Contract, the Builders become entitled

 

77

under that Contract not to deliver the Vessel to the Owners,

 

78

the Owners shall upon giving to the Charterers written

 

79

notice of Builders becoming so entitled, be excused from

 

80

giving delivery of the Vessel to the Charterers and upon

 

81

receipt of such notice by the Charterers this Charter shall

 

82

cease to have effect.

 

83

(c) If for any reason the Owners become entitled under

 

84

the Building Contract to reject the Vessel the Owners shall,

 

85

before exercising such right of rejection, consult the

 

86

Charterers and thereupon

 

87

(i) if the Charterers do not wish to take delivery of the Vessel

 

88

they shall inform the Owners within seven (7) running days

 

89

by notice in writing and upon receipt by the Owners of such

 

90

notice this Charter shall cease to have effect; or

 

91

(ii) if the Charterers wish to take delivery of the Vessel

 

92

they may by notice in writing within seven (7) running days

 

93

require the Owners to negotiate with the Builders as to the

 

94

terms on which delivery should be taken and/or refrain from

 

95

exercising their right to rejection and upon receipt of such

 

96

notice the Owners shall commence such negotiations and/

 

97

or take delivery of the Vessel from the Builders and deliver

 

98

her to the Charterers;

 

99

(iii) in no circumstances shall the Charterers be entitled to

 

100

reject the Vessel unless the Owners are able to reject the

 

101

Vessel from the Builders;

 

102

(iv) if this Charter terminates under sub clause (b) or (c) of

 

103

this Clause, the Owners shall thereafter not be liable to the

 

104

Charterers for any claim under or arising out of this Charter

 

105

or its termination.

 

106

(d) Any liquidated damages for delay in delivery under the

 

107

Building Contract and any costs incurred in pursuing a claim

 

108

therefor shall accrue to the account of the party stated in

 

109

Box 41(c) or if not filled in shall be shared equally between

 

110

the parties.

 

111

3. Guarantee Works

 

112

If not otherwise agreed, the Owners authorise the

 

113

Charterers to arrange for the guarantee works to be

 

114

performed in accordance with the building contract terms,

 

115

and hire to continue during the period of guarantee works.

 

116

The Charterers have to advise the Owners about the

 

117

performance to the extent the Owners may request.

 

118

4. Name of Vessel

 

119

The name of the Vessel shall be mutually agreed between

 

120

the Owners and the Charterers and the Vessel shall be

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART III

PROVISIONS TO APPLY FOR NEWBUILDING VESSELS ONLY

(Optional, only to apply if expressly agreed and stated in Box 37)

 

121   painted in the colours, display the funnel insignia and fly

122   the house flag as required by the Charterers.

 

123   5. Survey on Redelivery

124   The Owners and the Charterers shall appoint surveyors

125   for the purpose of determining and agreeing in writing the

126   condition of the Vessel at the time of re delivery.

127   Without prejudice to Clause 15 (Part II), the Charterers

  

128   shall bear all survey expenses and all other costs, if any,

129   including the cost of docking and undocking, if required,

130   as well as all repair costs incurred. The Charterers shall

131   also bear all loss of time spent in connection with any

132   docking and undocking as well as repairs, which shall be

133   paid at the rate of hire per day or pro rata.


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART IV

HIRE/PURCHASE AGREEMENT

(Optional, only to apply if expressly agreed and stated in Box 42)

 

1

On expiration of this Charter and provided the Charterers

 

2

have fulfilled their obligations according to Part I and II

 

3

as well as Part III, if applicable, it is agreed, that on

 

4

payment of the final payment of hire as per Clause 11

 

5

the Charterers have purchased the Vessel with

 

6

everything belonging to her and the Vessel is fully paid

 

7

for.

 

8

In the following paragraphs the Owners are referred to

 

9

as the Sellers and the Charterers as the Buyers.

 

10

The Vessel shall be delivered by the Sellers and taken

 

11

over by the Buyers on expiration of the Charter.

 

12

The Sellers guarantee that the Vessel, at the time of

 

13

delivery, is free from all encumbrances and maritime

 

14

liens or any debts whatsoever other than those arising

 

15

from anything done or not done by the Buyers or any

 

16

existing mortgage agreed not to be paid off by the time

 

17

of delivery. Should any claims, which have been incurred

 

18

prior to the time of delivery be made against the Vessel,

 

19

the Sellers hereby undertake to indemnify the Buyers

 

20

against all consequences of such claims to the extent it

 

21

can be proved that the Sellers are responsible for such

 

22

claims. Any taxes, notarial, consular and other charges

 

23

and expenses connected with the purchase and

 

24

registration under Buyers’ flag, shall be for Buyers’

 

25

account. Any taxes, consular and other charges and

 

26

expenses connected with closing of the Sellers’ register,

27

shall be for Sellers’ account.

 

28

In exchange for payment of the last month’s hire

 

29

instalment the Sellers shall furnish the Buyers with a

 

30

Bill of Sale duly attested and legalized, together with a

 

31

certificate setting out the registered encumbrances, if

 

32

any. On delivery of the Vessel the Sellers shall provide

 

33

for deletion of the Vessel from the Ship’s Register and

 

34

deliver a certificate of deletion to the Buyers.

 

35

The Sellers shall, at the time of delivery, hand to the

 

36

Buyers all classification certificates (for hull, engines,

 

37

anchors, chains, etc.), as well as all plans which may

 

38

be in Sellers’ possession.

 

39

The Wireless Installation and Nautical Instruments,

 

40

unless on hire, shall be included in the sale without any

 

41

extra payment.

 

42

The Vessel with everything belonging to her shall be at

 

43

Sellers’ risk and expense until she is delivered to the

 

44

Buyers, subject to the conditions of this Contract and

 

45

the Vessel with everything belonging to her shall be

 

46

delivered and taken over as she is at the time of delivery,

 

47

after which the Sellers shall have no responsibility for

 

48

possible faults or deficiencies of any description.

 

49

The Buyers undertake to pay for the repatriation of the

 

50

Master, officers and other personnel if appointed by the

 

51

Sellers to the port where the Vessel entered the Bareboat

 

52

Charter as per Clause 3 (Part II) or to pay the equivalent

 

53

cost for their journey to any other place.

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


PART V

PROVISIONS TO APPLY FOR VESSELS REGISTERED IN A BAREBOAT CHARTER REGISTRY

(Optional, only to apply if expressly agreed and stated in Box 43)

 

1

1. Definitions

 

2

For the purpose of this PART V, the following terms shall

 

3

have the meanings hereby assigned to them:

 

4

“The Bareboat Charter Registry” shall mean the registry

 

5

of the State whose flag the Vessel will fly and in which

 

6

the Charterers are registered as the bareboat charterers

 

7

during the period of the Bareboat Charter.

 

8

“The Underlying Registry” shall mean the registry of the

 

9

state in which the Owners of the Vessel are registered

 

10

as Owners and to which jurisdiction and control of the

 

11

Vessel will revert upon termination of the Bareboat

 

12

Charter Registration.

 

13

2. Mortgage

 

14

The Vessel chartered under this Charter is financed by

 

15

a mortgage and the provisions of Clause 12(b) (Part II)

 

16

shall apply.

 

17

3. Termination of Charter by Default

 

18

If the Vessel chartered under this Charter is registered

 

19

in a Bareboat Charter Registry as stated in Box 44, and

 

20

if the Owners shall default in the payment of any amounts

 

21

due under the mortgage(s) specified in Box 28, the

 

22

Charterers shall, if so required by the mortgagee, direct

 

23

the Owners to re register the Vessel in the Underlying

 

24

Registry as shown in Box 45.

 

25

In the event of the Vessel being deleted from the

 

26

Bareboat Charter Registry as stated in Box 44, due to a

 

27

default by the Owners in the payment of any amounts

 

28

due under the mortgage(s), the Charterers shall have

 

29

the right to terminate this Charter forthwith and without

 

30

prejudice to any other claim they may have against the

 

31

Owners under this Charter.

 


Copyright © 2001 BIMCO. All rights reserved. Any unauthorised copying, duplication, reproduction or distribution of this BIMCO SmartCon document will constitute an infringement of BIMCO’s copyright. Explanatory notes are available from BIMCO at www.bimco.org.

First published in 1974 as BARECON A and B. Amalgamated and revised in 1989. Revised 2001.


EXECUTION VERSION

ADDITIONAL CLAUSES TO BARECON 2001

DATED 12 June 2020

CLAUSE 32 — CHARTER PERIOD

 

32.1

For the avoidance of doubt, notwithstanding the fact that the Charter Period shall commence on the Commencement Date, this Charter shall be:

 

(a)

in full force and effect; and

 

(b)

valid, binding and enforceable against the parties hereto,

 

with

effect from the date of this Charter until the end of the Charter Period (subject to the terms of this Charter).

 

32.2

The charter period shall, subject to the terms of this Charter, continue for a period of eighty-four (84) months from the Commencement Date.

CLAUSE 33 — CANCELLATION

 

33.1

If:

 

(a)

a Termination Event occurs prior to the delivery of the Vessel by the Charterers as sellers to Owners as buyers under the MOA;

 

(b)

it becomes unlawful for the Owners (as buyers) to perform or comply with any or all of their obligations under the MOA or any of the obligations of the Owners under the MOA are not or cease to be legal, valid, binding and enforceable; and/or

 

(c)

the MOA expires, is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason and/or the Vessel is not delivered on or prior to the Cancelling Date,

then this Charter shall immediately terminate and be cancelled, provided that any provision hereof expressed to survive such termination or cancellation shall so do in accordance with its terms) without the need for either of the Owners or the Charterers to take any action whatsoever, provided that the Owners shall be entitled to retain all fees or amounts paid by the Charterers pursuant to Clause 41.1 and Clause 41.2 (and without prejudice to Clause 41.1 or Clause 41.2, if such fees or amounts have not been paid but are due and payable, the Charterers shall forthwith pay such fees or amounts to the Owners) and such payment thereof and the payment of all other amounts payable under this Charter which have fallen due on or prior to the date on which this Charter may be terminated pursuant to this Clause 33.1 but which remain unpaid is acknowledged by the Charterers to be proportionate as to amount, having regard to the legitimate interest of the Owners, in protecting against the Owners’ risk of the Charterers failing to perform its obligations under this Charter.

CLAUSE 34 — DELIVERY OF VESSEL

34.1

 

(a)

This Charter is part of a transaction involving the sale, purchase and charter back of the Vessel and constitutes one of the Leasing Documents.

 

1


(b)

The obligation of the Owners to charter the Vessel to the Charterers hereunder is subject to and conditional upon:

 

  (i)

the delivery of the Vessel by the Charterers as sellers to the Owners as buyers in accordance with the terms of the MOA with such Delivery occurring on or before the Cancelling Date (and, for the purposes of this Charter, the Vessel shall be deemed delivered to the Charterers simultaneously with delivery of the Vessel to the Owners pursuant to the MOA);

 

  (ii)

no Potential Termination Event or Termination Event has occurred and is continuing at the relevant time;

 

  (iii)

the representations and warranties contained in Clause 45 being true and correct on the date of this Charter and on the Delivery Date;

 

  (iv)

the Owners having received from the Charterers:

 

  (A)

on or prior to the submission of a Payment Notice (as defined in the MOA) under the MOA, the documents or evidence set out in Part A of Schedule II in form and substance satisfactory to them;

 

  (B)

on or prior to Delivery, the documents or evidence set out in Part B of Schedule II in form and substance satisfactory to them; and

 

  (C)

after Delivery, the documents or evidence set out in Part C of Schedule II in form and substance satisfactory to them within the time periods set out thereunder;

and if any of the documents listed in sub-paragraph (iv) above are not in the English language then they shall be accompanied by a certified English translation.

 

34.2

The conditions precedent and conditions subsequent specified in 34.134.1(b) are inserted for the sole benefit of the Owners and may be waived or deferred in whole or in part and with or without conditions by the Owners.

 

34.3

On delivery to and acceptance by the Owners (in their capacity as buyers) of the Vessel under the MOA from the Charterers (in their capacity as sellers) and subject to the provisions of this Clause 34, the Vessel shall be deemed to have been delivered to, and accepted without reservation by, the Charterers under this Charter and the Charterers shall become and be entitled to the possession and use of the Vessel on and subject to the terms and conditions of this Charter.

 

34.4

On Delivery, as evidence of the commencement of the Charter Period the Charterers shall sign and deliver to the Owners the Acceptance Certificate. Without prejudice to this Clause 34.4, the Charterers shall be deemed to have accepted the Vessel under this Charter and the commencement of the Charter Period having started, on Delivery even if for whatever reason, the Acceptance Certificate is not signed and/or the Charterers do not take actual possession of the Vessel at that time.

 

34.5

The Charterers shall not be entitled for any reason whatsoever to refuse to accept delivery of the Vessel under this Charter once the Vessel has been delivered to and accepted by the Owners under the MOA from the Charterers as sellers, and the Owners shall not be liable for any losses, costs or expenses whatsoever or howsoever arising including, without limitation, any loss of profit or any loss or otherwise:

 

(a)

resulting directly or indirectly from any defect or alleged defect in the Vessel or any failure of the Vessel; or

 

2


(b)

arising from any delay in the commencement of the Charter Period or any failure of the Charter Period to commence.

 

34.6

The Owners will not and shall not be obliged to deliver the Vessel to the Charterers with any bunkers and unused lubricating oils and greases (whether in storage tanks and unopened drums or otherwise) except such items (including bunkers, lubricating oils, unbroached provisions, paints, ropes and other consumable stores) as are on the Vessel on Delivery under the MOA (and without any liability for the quality, quantity or fitness of the same accruing to Owners).

 

34.7

The Charterers shall, following the Owners’ delivery of items on board the Vessel on Delivery pursuant to Clause 34.6, keep all such items on board the Vessel for the Charterers’ own use.

CLAUSE 35 — QUIET ENJOYMENT

 

35.1

Provided that no Potential Termination Event or Termination Event has occurred, the Owners hereby agree not to disturb or interfere (or instruct another party to disturb or interfere) with the Charterers’ lawful use, possession and quiet enjoyment of the Vessel during the Charter Period.

 

35.2

Subject to Clause 35.1 above, the Charterers acknowledge that, at any time during the Charter Period:

 

(a)

the Owners are entitled to enter into certain funding arrangements with their financier(s), (the “Mortgagee”), in order to finance in part or in full the Purchase Price, which funding arrangements may be secured, inter alia, by the relevant Financial Instruments;

 

(b)

the Owners may do any of the following as security for the funding arrangements referred to in paragraph (a) above, in each case, without the prior consent of the Charterers:

 

  (i)

execute a ship mortgage over the Vessel or any other Financial Instrument in favour of a Mortgagee;

 

  (ii)

assign their rights and interests to, in or in connection with this Charter and any other Leasing Document in favour of that Mortgagee;

 

  (iii)

assign their rights and interests to, in or in connection with the Insurances, the Earnings and the Requisition Compensation of the Vessel in favour of that Mortgagee; and

 

  (iv)

enter into any other document or arrangement which is necessary to give effect to such financing arrangements; and

 

(c)

the Charterers undertake to comply, and provide such information and documents reasonably required to enable the Owners to comply, with all such instructions or directions in regard to the employment, insurances, operation, repairs and maintenance of the Vessel as laid down in any Financial Instrument or as may be directed from to time during the currency of this Charter by the Mortgagee in conformity with any Financial Instrument. The Charterers further agree and acknowledge all relevant terms, conditions and provisions of each Financial Instrument (if any) and agree to acknowledge this in writing in any form that may be reasonably required by the Mortgagee.

 

(d)

The Owners shall use commercially reasonable endeavours to procure that their financier(s) enter into a quiet enjoyment agreement with the Charterers on such terms as may be agreed between the Owners, the Mortgagee and the Charterers.

 

3


CLAUSE 36 — CHARTERHIRE, ADVANCE CHARTERHIRE AND DEPOSIT

 

36.1

In consideration of the Owners agreeing to charter the Vessel to the Charterers under this Charter at the request of the Charterers, the Charterers hereby irrevocably and unconditionally agree to pay to the Owners, the Charterhire, the Advance Charterhire, the Deposit and the Purchase Obligation Price or, as the case may be, the Purchase Option Price in accordance with the terms of this Charter.

 

36.2

The Charterers shall pay to the Owners on the Commencement Date:

 

  (a)

the Advance Charterhire; and

 

  (b)

the Deposit,

and the Charterers shall be deemed to have paid such amounts to the Owners on Delivery upon the Owners setting off (i) a portion equal to the Advance Charterhire and (ii) a portion equal to the Deposit, of the Purchase Price payable by the Owners under the MOA against the Charterers’ obligation to pay the Advance Charterhire and the Deposit respectively under this Charter.

 

36.3

Subject to the terms of this Clause 36, the Charterers shall pay the Charterhire quarterly in arrears in twenty-eight (28) consecutive instalments to the Owners under this Charter with the first instalment of the Charterhire payable on the date falling three (3) months after the Commencement Date, each subsequent instalment of Charterhire (other than the last instalment of Charterhire) shall be paid at 3-monthly intervals thereafter and the final instalment of the Charterhire payable on the date eighty-four (84) months after the Commencement Date.

 

36.4

The Vessel shall not at any time be deemed off-hire and the Charterers’ obligation to pay all Charterhire, the Advance Charterhire, the Deposit and other amounts payable under the Leasing Documents shall be absolute and unconditional under any and all circumstances and shall not be affected by any circumstances of any nature whatsoever including but not limited to:

 

(a)

any set-off (other than the Advance Charterhire and the Deposit which shall be set-off pursuant to Clause 36.2 or, as the case may be, 48.1), counterclaim, recoupment, defence, claim or other right which the Charterers may at any time have against the Owners or any other person for any reason whatsoever including, without limitation, any act, omission or breach on the part of the Owners under this Charter or any other agreement at any time existing between the Owners and the Charterers;

 

(b)

any change, extension, indulgence or other act or omission in respect of any indebtedness or obligation of the Charterers, or any sale, exchange, release or surrender of, or other dealing in, any security for any such indebtedness or obligation;

 

(c)

any title defect or encumbrance or any dispossession of the Vessel by title paramount or otherwise;

 

(d)

any defect in the seaworthiness, condition, value, design, merchantability, operation or fitness for use of the Vessel or the ineligibility of the Vessel for any particular trade;

 

(e)

the Total Loss or any damage to or forfeiture or court marshall’s or other sale of the Vessel;

 

(f)

any libel, attachment, levy, detention, sequestration or taking into custody of the Vessel or any restriction or prevention of or interference with or interruption or cessation in, the use or possession thereof by the Charterers;

 

4


(g)

any insolvency, bankruptcy, reorganization, arrangement, readjustment, dissolution, liquidation or similar proceedings by or against the Charterers;

 

(h)

any invalidity, unenforceability, lack of due authorization or other defects, or any failure or delay in performing or complying with any of the terms and provisions of this Charter or the other Leasing Documents by any party to this Charter or any other person;

 

(i)

any enforcement or attempted enforcement by the Owners of their rights under this Charter or any of the Leasing Documents executed or to be executed pursuant to this Charter;

 

(j)

any loss of use of the Vessel due to deficiency or default or strike of officers or crew, fire, breakdown, damage, accident, defective cargo or any other cause which would or might but for this provision have the effect of terminating or in any way affecting any obligation of the Charterers under this Charter; or

 

(k)

any prevention, delay, deviation or disruption in the use of the Vessel resulting from the wide outbreak of any viruses (including the 2019 novel coronavirus), including but not limited to those caused by:

 

  (i)

closure of ports;

 

  (ii)

prohibitions or restrictions against the Vessel calling at or passing through certain ports;

 

  (iii)

restriction in the movement of personnel and/or shortage of labour affecting the operation of the Vessel or the operation of the ports (including stevedoring operations);

 

  (iv)

quarantine regulations affecting the Vessel, its cargo, the crew members or relevant port personnel;

 

  (v)

fumigation or cleaning of the Vessel; or

 

  (vi)

any claims raised by any sub-charterer or manager of the Vessel that a force majeure event or termination event (or any other analogous event howsoever called) has occurred under the relevant charter agreement or management agreement (as the case may be) of the Vessel as a result of the outbreak of such viruses.

 

36.5

Time of payment of the Charterhire, the Advance Charterhire, the Deposit and other payments by the Charterers shall be of the essence of this Charter and the other Leasing Documents.

 

36.6

All payments of the Charterhire, the Advance Charterhire, the Deposit and any other amounts payable under the Leasing Documents shall be made in Dollars and shall be received by the Owners in same day available funds and by not later than 5.00p.m. (Beijing time) on the due date thereof.

 

36.7

All Charterhire and any moneys payable hereunder shall be payable by the Charterers to the Owners to such account as the Owners may notify the Charterers in writing.

 

36.8

Payment of the Charterhire, the Advance Charterhire, the Deposit and any other amounts payable to the Owners under the Leasing Documents shall be at the Charterers’ risk until receipt by the Owners.

 

36.9

All stamp duty, value added tax, withholding or other taxes (excluding taxes levied on the overall income of the Owners) and import and export duties and all other similar types of charges which may be levied or assessed on or in connection with:

 

5


(a)

the operation of this Charter in respect of the hire and all other payments to be made pursuant to this Charter and the remittance thereof to the Owners; and

 

(b)

the import, export, purchase, delivery and re-delivery of the Vessel,

shall be borne by the Charterers. The Charterers shall pay, if applicable, value added tax and other similar tax levied on any Charterhire, the Advance Charterhire, the Deposit and any other payments payable under this Charter by addition to, and at the time of payment of, such amounts.

 

36.10

If the Charterers fail to make any payment due under this Charter on the due date, they shall pay interest on such late payment at the default rate of 2% plus the Interest Rate per annum from the date on which such payment became due until the date of payment thereof.

 

36.11

All interest (including default interest) and any other payments under this Charter which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360 day year.

 

36.12

Any payment which is due to be made on a day which is not a Business Day, shall be made on the preceding Business Day in the same calendar month.

CLAUSE 37 — POSSESSION OF VESSEL

 

37.1

The Charterers shall not, without the prior written consent of the Owners, assign, mortgage or pledge the Vessel or any interest therein, its Earnings, Insurances and Requisition Compensation and/or any of its rights and interests under any Approved Sub-charter, and shall not permit the creation of any Security Interest thereon other than the Permitted Security Interests.

 

37.2

The Charterers shall promptly notify each Approved Sub-charterer or such other party as the Owners may request, in writing that the Vessel is the property of the Owners and the Charterers shall use commercially reasonable endeavours to provide the Owners with a copy of such written acknowledgement in such form and substance satisfactory to the Owners evidencing that such party has received such written notification.

 

37.3

If the Vessel is arrested, seized, impounded, forfeited, detained or taken out of their possession or control (whether or not pursuant to any distress, execution or other legal process), the Charterers shall procure the immediate release of the Vessel (whether by providing bail or procuring the provision of security or otherwise do such lawful things as the circumstances may require) and shall immediately notify the Owners of such event and shall indemnify the Owners against all documented losses, costs or charges incurred by the Owners by reason thereof in retaking possession or otherwise in re-acquiring the Vessel. Without prejudice to the generality of the foregoing, the Charterers agree to indemnify the Owners against all consequences or liabilities arising from the master, officers or agents signing bills of lading or other documents.

 

37.4

The Charterers shall pay and discharge or cause that any sub-charterer of the Vessel shall promptly pay and discharge all obligations and liabilities whatsoever which have given or may give rise to liens on or claims enforceable against the Vessel and take all steps to prevent an arrest (threatened or otherwise) of the Vessel.

Clause 38 — INSURANCE

 

38.1

The Charterers shall procure that insurances are effected:

 

(a)

in Dollars;

 

6


(b)

in the case of fire and usual hull and machinery, marine risks and war risks (including blocking and trapping), on an agreed value basis in an amount equal to the higher from time to time of: (i) taking into account increased value insurance in a proportion of cover of up to 30%, 120% of the then Outstanding Principal Balance and (ii) the then applicable Market Value;

 

(c)

in the case of oil pollution liability risks for the Vessel, for an aggregate amount equal to the highest level of cover from time to time available under protection and indemnity club entry and in the international marine insurance market and for an amount of not less than $1,000,000,000;

 

(d)

in relation to protection and indemnity risks in respect of the full tonnage of the Vessel;

 

(e)

through approved brokers and with first class international insurers and/or underwriters acceptable to the Owners (acting reasonably) and their financiers (if any) (including having a Standard & Poor’s rating of BBB+ or above, a Moody’s rating of A or above or an AM Best rating of A- or above) or, in the case of war risks and protection and indemnity risks, in a war risks and protection and indemnity risks associations acceptable to the Owners (acting reasonably) and their financiers (if any) (including being a member of the International Group of Protection and Indemnity Clubs);

 

(f)

on no less favourable terms which the Charterers may be under an obligation (if any) to maintain under the terms of any Approved Sub-charter; and

 

(g)

otherwise in form and substance and on terms satisfactory to the Owners and their financiers (if any).

 

38.2

In addition to the terms set out in Clause 13(a), the Charterers shall procure that the obligatory insurances shall:

 

(a)

subject always to paragraph (ii), name the Charterers, the Approved Manager and the Owners (if so required by the Owners) as the only named assureds unless the interest of every other named assured or co-assured is limited:

 

  (ii)

in respect of any obligatory insurances for hull and machinery and war risks;

 

  (1)

to any provable out-of-pocket expenses that they have incurred and which form part of any recoverable claim on underwriters; and

 

  (2)

to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against them); and

 

  (iii)

in respect of any obligatory insurances for protection and indemnity risks, to any recoveries they are entitled to make by way of reimbursement following discharge of any third party liability claims made specifically against them,

and every other named assured or co-assured has undertaken in writing to the Owners or their financiers in such form as they may require, that any deductible shall be apportioned between the Charterers and every other named assured or co-assured in proportion to the gross claims made by or paid to each of them and that they shall do all things necessary and provide all documents, evidence and information to enable the Owners and their financiers (if any) in accordance with the terms of the loss payable clause, to collect or recover any moneys which at any time become payable in respect of the obligatory insurances;

 

(b)

whenever the Owners or a financier of the Owners requires:

 

7


  (i)

in respect of fire and other usual marine risks and war risks, name (or be amended to name) the same as additional named assured for their rights and interests, warranted no operational interest and with full waiver of rights of subrogation against such financiers, but without such financiers thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;

 

  (ii)

in relation to protection and indemnity risks, name (or be amended to name) the same as additional insured or co-assured for their rights and interests to the extent permissible under the relevant protection and indemnity club rules; and

 

  (iii)

name the Owners’ financiers (as applicable) and the Owners (as applicable) as the first ranking loss payee and the second ranking loss payee respectively (and in the absence of any financiers, the Owners as first ranking loss payee) in accordance with the terms of the relevant loss payable clauses approved by the Owners’ financiers and the Owners (such approval not to be unreasonably withheld) with such directions for payment in accordance with the terms of such relevant loss payable clause, as the Owners and their financiers (if any) may specify;

 

(c)

provide that all payments by or on behalf of the insurers under the obligatory insurances to the Owners and/or their financiers (as applicable) shall be made without set-off, counterclaim or deductions or condition whatsoever;

 

(d)

provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Owners or their financiers (if any);

 

(e)

provide that the Owners and/or their financiers (if any) may make proof of loss if the Charterers fail to do so; and

 

(f)

provide that if any obligatory insurance is cancelled, or if any substantial change is made in the coverage which adversely affects the interest of the Owners, or if any obligatory insurance is allowed to lapse for non-payment of premium, such cancellation, change or lapse shall not be effective with respect to the Owners and/or their financiers (if any) for fourteen (14) days (or seven (7) days in the case of war risks), or such other period as may be agreed by the Owners and/or their financiers (if any), after receipt by the Owners and/or their financiers (if any) of prior written notice from the insurers of such cancellation, change or lapse.

 

38.3

The Charterers shall:

 

(a)

at least fourteen (14) days prior to Delivery (or such shorter period agreed by the parties), notify in writing the Owners (copied to their financiers (if any)) of the terms and conditions of all Insurances;

 

(b)

at least fourteen (14) days before the expiry of any obligatory insurance (which for these purposes and also for the purposes of paragraphs (c) and (d) below includes any cover placed pursuant to Clause 38.15), notify the Owners (copied to their financiers (if any)) of the brokers (or other insurers) and any protection and indemnity or war risks association through or with whom the Charterers propose to renew that obligatory insurance and of the proposed terms of renewal and obtain the Owners’ approval (such approval not to be unreasonably withheld and in any event, having regard to the requirements on insurance cover referred to under this Charter);

 

(c)

at least seven (7) days before the expiry of any obligatory insurance, procure that such obligatory insurance is renewed or to be renewed on its expiry date in accordance with the provisions of this Charter;

 

(d)

procure that the approved brokers and/or the war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal or the effective date of the new insurance and protection and indemnity cover notify the Owners (copied to their financiers (if any)) in writing of the terms and conditions of the renewal; and

 

8


(e)

as soon as practicable after the expiry of any obligatory insurance, deliver to the Owners a letter of undertaking as required by this Charter in respect of such Insurances for the Vessel as renewed pursuant to this Clause 38.3 together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Owners and/or their financiers (if any).

 

38.4

The Charterers shall ensure that all insurance companies and/or underwriters, and/or (if any) insurance brokers provide the Owners with all copies of policies, cover notes and certificates of entry (or originals where so requested by the Owners following the occurrence of a Termination Event or Potential Termination Event) relating to the obligatory insurances which they are to effect or renew and of a letter or letters or undertaking in a form required by the Owners and/or their financiers (if any) (which the Charterers shall procure the relevant insurance companies, underwriters and/or insurance brokers to provide upon renewal or receipt of the insurance companies, underwriters and/or insurance brokers or an executed notice of assignment), and such letter or letters of undertaking shall include undertakings by the insurance companies and/or underwriters that:

 

(a)

they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of this Charter and the Financial Instruments;

 

(b)

they will hold the benefit of such policies and such insurances, to the order of the Owners and/or their financiers (if any) and/or such other party in accordance with the said loss payable clause;

 

(c)

they will advise the Owners and their financiers (if any) promptly of any material change to the terms of the obligatory insurances of which they are aware;

 

(d)

(i) they will indicate in the letters of undertaking that they will immediately notify the Owners and their financiers (if any) when any cancellation, charge or lapse of the relevant obligatory insurance occur and (ii) following a written application from the Owners and/or their financiers (if any) not later than one (1) month before the expiry of the obligatory insurances they will notify the Owners and their financiers (if any) not less than fourteen (14) days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from the Charterers and, in the event of their receiving instructions to renew, they will promptly notify the Owners and their financiers (if any) of the terms of the instructions; and

 

(e)

if any of the obligatory insurances form part of any fleet cover, the Charterers shall procure that the insurance broker(s), or leading insurer, as the case may be, undertakes to the Owners and their financiers (if any) that such insurance broker or insurer will not set off against any sum recoverable in respect of a claim relating to the Vessel under such obligatory insurances any premiums due in respect of any other vessel under any fleet cover of which the Vessel forms a part or any premium due for other insurances, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums, and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of the Vessel forthwith upon being so requested by the Owners and/or their financiers (if any) and where practicable.

 

38.5

The Charterers shall ensure that any protection and indemnity and/or war risks associations in which the Vessel is entered provides the Owners and their financiers (if any) with:

 

(a)

a copy of the certificate of entry for the Vessel as soon as such certificate of entry is issued;

 

9


(b)

a letter or letters of undertaking in such form as may be required by the Owners and their financiers (if any) or in such association’s standard form; and

 

(c)

a copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to the Vessel.

 

38.6

The Charterers shall ensure that all policies relating to obligatory insurances are deposited with the approved brokers through which the insurances are effected or renewed.

 

38.7

The Charterers shall procure that all premiums or other sums payable in respect of the obligatory insurances are punctually paid and produce all relevant receipts when so required by the Owners.

 

38.8

The Charterers shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.

 

38.9

The Charterers shall neither do nor omit to do (nor permit to be done or not to be done) any act or thing which would or might render any obligatory insurance invalid, void, voidable or unenforceable or render any sum payable under an obligatory insurance repayable in whole or in part; and, in particular:

 

(a)

the Charterers shall procure that all necessary action is taken and all requirements are complied with which may from time to time be applicable to the obligatory insurances, and (without limiting the obligations contained in this Clause 38) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Owners have not given their prior approval (unless such exclusions or qualifications are made in accordance with the rules of a protection and indemnity association which is a member of the International Group of protection and indemnity associations) (such approval not to be unreasonably withheld);

 

(b)

the Charterers shall not make or permit any changes relating to the classification or classification society or manager or operator of the Vessel unless such changes have first been approved by the underwriters of the obligatory insurances or the Owners (such approval not to be unreasonably withheld, and subject always to the Owners receiving credit approval on such changes);

 

(c)

the Charterers shall procure that all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Vessel is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation) are made and the Charterers shall promptly provide the Owners with copies of such declarations and a copy of the certificate of financial responsibility; and

 

(d)

the Charterers shall not employ the Vessel, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.

 

38.10

The Charterers shall not make or agree to any material alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance which would or would potentially have an adverse effect on the rights of the Owners under the Leasing Documents, in each case without the prior written consent (such consent not to be unreasonably withheld) of the Owners and their financiers (if any), and for the purposes of this Clause 38.10, “material” alterations shall include, without limitation, any change to the identity of the beneficiaries under such insurances or scope of cover, reduction to the insured amount, limitation on the scope of the cover and any other amendment which would cause a breach under the terms of this Charter, any Approved Sub-charter or any other Leasing Document.

 

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38.11

The Charterers shall not settle, compromise or abandon any claim under any obligatory insurance for a Total Loss or for a Major Casualty, and shall do all things necessary and provide all documents, evidence and information to enable the Owners to collect or recover any moneys which at any time become payable in respect of the obligatory insurances.

 

38.12

The Charterers shall provide the Owners, promptly upon the Owners’ written request, copies of:

 

(a)

all communications between the Charterers and:

 

  (i)

the approved brokers; and

 

  (ii)

the approved protection and indemnity and/or war risks associations; and

 

  (iii)

the approved international insurers and/or underwriters, which relate directly or indirectly to:

 

  (A)

the Charterers’ obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and

 

  (B)

any credit arrangements made between the Charterers and any of the persons referred to in paragraphs (i) or (ii) relating wholly or partly to the effecting or maintenance of the obligatory insurances; and any communication with all parties involved in case of a claim under any of the Vessel’s insurances.

 

38.13

The Charterers shall promptly provide the Owners (or any persons which they may designate) with any information which the Owners or their financiers (if any) may request for the purpose of:

 

(a)

obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or

 

(b)

effecting, maintaining or renewing any such insurances as are referred to in Clause 13(a) or this Clause 38 or dealing with or considering any matters relating to any such insurances.

 

38.14

If one or more of the obligatory insurances are not effected and maintained with first class international insurers or are effected with an insurance or captive subsidiary of the Owners or the Charterers, then the Charterers shall procure, at their own expense, that the relevant insurers maintain in full force and effect facultative reinsurances with reinsurers and through brokers, in each case, of recognised standing and acceptable in all respects to the Owners and their financiers (if any). Any reinsurance policy shall include, if and when permitted by law, a cut-through clause in a form acceptable to the Owners. The Charterers shall procure that underwriters of the primary insurances assign each reinsurance to the relevant financiers in full, if required.

 

38.15

The Charterers shall upon demand fully indemnify the Owners in respect of all premiums and other expenses which are incurred by (i) the Owners in connection with or with a view to effecting, maintaining or renewing an innocent owners’ interest insurance, mortgagee’s interest insurance and a lessor’s/mortgagee’s additional perils (pollution) insurance that is taken out in respect of the Vessel and/or (ii) the financier(s) of the Owners (if any) in connection with or with a view to effecting, maintaining or renewing a mortgagee’s interest

 

11


  insurance and a mortgagee’s additional perils (pollution) insurance that is taken out in respect of the Vessel, in each case, with the Charterers’ insurance brokers as approved by the Owners (in their sole discretion) and provided that the Charterers shall provide the Owners, as soon as these are dispatched, with copies of all communications between the Charterers and such insurance brokers. In each case, the amount of the cover under the insurances referred to this Clause 38.15 shall be equal to at least the higher from time to time of (i) 120% of the then prevailing Outstanding Principal Balance; (ii) the Market Value.

 

38.16

The Charterers shall be solely responsible for and indemnify the Owners in respect of all loss or damage to the Vessel (insofar as the Owners shall not be reimbursed by the proceeds of any insurance in respect thereof) however caused occurring at any time or times before physical possession thereof is retaken by the Owners, reasonable wear and tear to the Vessel only excepted.

 

38.17

The Charterers shall:

 

(a)

reimburse the Owners any expenses incurred by the Owners in obtaining the reports described in Clause 38.13; and

 

(b)

procure that there is delivered to the brokers, insurers, underwriters, associations described in Clause 38.1(e) such information in relation to the Insurances as they may require.

 

38.18

The Charterers shall keep the Vessel insured at their expense against such other risks which the Owners consider reasonable for a prudent shipowner or operator to insure against at the relevant time (as notified by the Owners) and which are, at that time, generally insured against by owners or operators of vessels similar to the Vessel.

 

38.19

The Charterers shall, in the event that the Approved Manager makes a claim under any obligatory insurances taken out in connection with this Clause 38 but is unable to or otherwise fails to pay in full any deductible in connection with such claim (in an amount as apportioned between the Charterers and every other assured in proportion to the gross claims made by or paid to each of them), pay such shortfall in deductible payable on behalf of the Approved Manager.

CLAUSE 39 — WARRANTIES RELATING TO VESSEL

 

39.1

It is expressly agreed and acknowledged that the Owners are not the manufacturer or original supplier of the Vessel which has been purchased by the Owners from the Charterers as sellers pursuant to the MOA for the purpose of then chartering the Vessel to the Charterers hereunder and that no condition, term, warranty or representation of any kind is or has been given to the Charterers by or on behalf of the Owners in respect of the Vessel (or any part thereof).

 

39.2

All conditions, terms or warranties express or implied by the law relating to the specifications, quality, description, merchantability or fitness for any purpose of the Vessel (or any part thereof) or otherwise are hereby expressly excluded.

 

39.3

The Charterers agree and acknowledge that the Owners shall not be liable for any claim, loss, damage, expense or other liability of any kind or nature caused directly or indirectly by the Vessel or by any inadequacy thereof or the use or performance thereof or any repairs thereto or servicing thereof and the Charterers shall not by reason thereof be released from any liability to pay any Charterhire, the Advance Charterhire, the Deposit or other payment due under this Charter or the other Leasing Documents.

 

 

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CLAUSE 40 — TERMINATION, REDELIVERY AND TOTAL LOSS

 

40.1

If the Termination Purchase Price becomes payable in accordance with Clause 44.2 or 44A.1 or 44A.3, the same shall be payable in consideration of the purchase and transfer of the legal and beneficial title of the Vessel pursuant to Clause 40.4 and it is agreed by the Parties that payment of the Termination Purchase Price is deemed to be proportionate as to amount, having regard to the legitimate interest of the Owners, in protecting against the Owners’ risk of the Charterers failing to perform its obligations under this Charter.

 

40.2

Upon the full and irrevocable receipt by the Owners of the Termination Purchase Price pursuant to Clause 40.1 on the Termination Date, this Charter shall terminate and the title in the Vessel shall be transferred to the Charterers on the Termination Date pursuant to Clause 40.4.

 

40.3

If the Charterers fail to make full payment of the Termination Purchase Price on the Termination Date:

 

(a)

(i)         Clauses 36.10 and 36.11 shall apply; and

 

  (ii)

the Charterers’ right to possess and operate the Vessel shall cease on the Termination Date and (without in any way affecting the Charterers’ obligation to pay the Termination Purchase Price) the Charterers shall, upon the Owners’ request (at Owners’ sole discretion), be obliged to immediately (and at the Charterers’ own cost) redeliver the Vessel to the Owners on the Termination Date (or such other date as the Owners may require) at such ready and safe port as the Owners may require.

 

(b)

Without prejudice to any rights which the Owners may have in the capacity as owner of the Vessel, the Owners shall concurrently with their right to require redelivery of the Vessel pursuant to Clause 40.3(a)(ii) or Clause 44.2(b), be entitled to:

 

  (i)

sell the Vessel on terms they deem fit and/or to otherwise operate the Vessel on such terms as they may require and may create whatsoever interests thereon and the relevant proceeds shall be applied in reduction of the Termination Purchase Price and otherwise in accordance with the Trust Deed; or

 

  (ii)

if the Owners elect not to sell the Vessel within three (3) months after Termination Date, the Owners may, at its sole discretion, assess the Market Value (the “Termination Value”) of the Vessel promptly thereafter and, apply notionally the amount of such Market Value against the Termination Purchase Price, in which case if:

 

  (A)

the amount of the Termination Value is in excess of the aggregate amounts due to the Owners under this Charter and the Trust Deed, such excess will be paid to the Charterers;

 

  (B)

the amount of the Termination Value is not sufficient to discharge in full the aggregate amounts due to the Owners under this Charter following such application the Charterers shall continue to be liable for the shortfall and interest shall continue to accrue on such shortfall in accordance with Clause 36.10 and 36.11.

For the avoidance of doubt once the Owners have applied the Termination Value in accordance with this Clause 40.3(b)(ii) the Owners’ obligation to transfer the title of the Vessel pursuant to Clause 40.4 shall be fully released and discharged and the Owners may use or sell the Vessel as they deem fit without any necessity to account to Charterers.

 

13


(c)

If the Owners intend to sell the Vessel in accordance with Clause 40.3(b), then unless the applicable Termination Event (or one of the applicable Termination Events) that led to such right of sale arising is a Termination Event described in Clause 44.1(a), the Owners shall notify the Charterers in writing of the potential sale and the potential sale price of the Vessel (the “Proposed Owners’ Sale Price”). The Charterers (or their nominee) may, within five (5) days of such written notification from the Owners, purchase the Vessel by paying an amount to the Owners which is the higher of (I) the Proposed Owners’ Sale Price and (II) the Termination Purchase Price. If the Charterers notify the Owners that they do not intend to purchase the Vessel or the Charterers do not respond to the Owners within such five (5) days’ period and/or such purchase is not completed within such five (5) days’ period (or such longer period as the Owners may in their absolute discretion determine), the Owners may continue to proceed to sell the Vessel on such terms as the Owners may deem fit.

 

(d)

All amounts received by or payable to the Owners under this Clause 40.3 shall be held on trust for the Owners and the Other Owners, and shall be applied in accordance with the provisions of the Trust Deed.

 

40.4

Immediately upon receipt by the Owners of irrevocable payment of the Termination Purchase Price in full pursuant to the terms of this Charter, the Owners shall (save in the event of Total Loss or where ownership has already been or agreed to be transferred pursuant to Clause 40.3) transfer the legal and beneficial ownership of the Vessel on an “as is where is” basis (and, for the avoidance of doubt but without prejudice to Clause 49.1(b)), and otherwise in accordance with the terms and conditions set out at Clause 49.1(a) and (b)), to the Charterers (or their nominee) and shall (at the cost of the Charterers) execute a bill of sale and a protocol of delivery and acceptance evidencing the same and the Vessel shall be deemed to have to be delivered to the Charterers (or their nominee) on the date and time set out in such protocol of delivery and acceptance (and to the extent required for such purposes, the Vessel shall be deemed first to have been redelivered to the Owners).

 

40.5

The Charterers hereby undertake to indemnify the Owners against any claims incurred in relation to the Vessel as a result of the Charterers’ action or performance prior to such transfer of ownership. Any taxes, notarial, consular and other costs, charges and expenses connected with closing of the Owners’ register shall be for the Charterers’ account.

 

40.6

If the Charterers are required to redeliver the Vessel to the Owners pursuant to Clause 40.3(a)(ii) or following a direction of the Owners under Clause 44.2(b), the Charterers shall ensure that the Vessel shall, at the time of redelivery to the Owners (at Charterers’ cost and expense):

 

(a)

be in compliance with its Insurances;

 

(b)

be in an equivalent classification as she was as at the Commencement Date without any overdue recommendation or condition, and with valid, unextended certificates for not less than six (6) months and free of average damage affecting the Vessel’s classification and in the same or as good structure, state, condition and classification as that in which she was deemed on the Commencement Date, fair wear and tear not affecting the Vessel’s classification excepted;

 

(c)

have passed her 5-year and if applicable, 10-year special surveys, and subsequent second intermediate surveys and drydock at the Charterers’ time and expense without any overdue condition or outstanding issue and to the satisfaction of the Classification Society and with all the Vessel’s classification, trading, national and international certificates that the Vessel had when she was delivered under this Charter and the log book and whatsoever necessary relating to the operation of the Vessel, valid and un-extended without overdue conditions or recommendation falling due;

 

14


(d)

have her survey cycles up to date and trading and classification certificate valid for at least six (6) months;

 

(e)

be redelivered to the Owners together with all spare parts and spare equipment as were on board at the time of Delivery (but only to the extent they have not already been used in the operation of the Vessel), and any such spare parts and spare equipment on board at the time of re-delivery shall be taken over by the Owners free of charge;

 

(f)

be free of any Security Interest (save for the Security Interests granted pursuant to the Financial Instruments) and free of any cargo;

 

(g)

be redelivered to the Owners together with all material information generated during the Charter Period in respect of the use, possession, operation, navigation, utilization of lubricating oil and the physical condition of the Vessel, whether or not such information is contained in the Charterers’ equipment, computer or property;

 

(h)

be free of any charter (unless the Owners wish to retain the continuance of any then existing charter);

 

(i)

be free of officers and crew (unless otherwise agreed by the Owners); and

 

(j)

shall have had her underwater parts treated with ample anti-fouling to last for the ensuing period up to the next scheduled dry docking of the Vessel.

 

40.7

The Owners shall, at the time of the redelivery of the Vessel, take over all bunkers, lubricating oil, unbroached provisions, paints, ropes and other consumable stores in the Vessel at no cost to the Owners. The Owners reserve all rights to recover from the Charterers any costs, expenses and/or liabilities incurred or suffered by them (including without limitation, the costs of any docking and/or repairs which may be required to restore the Vessel to the structure, state, condition and class as that in which the Vessel was delivered (fair wear and tear not affecting class excepted, but without any overdue recommendations or conditions as to class)) as a result of the Vessel not being redelivered in accordance with the terms of this Charter.

 

40.8

If the Vessel, for any reason, becomes a Total Loss after Delivery, the Charterers shall pay the Termination Purchase Price to the Owners on the earlier of:

 

(a)

the date falling ninety (90) days after such Total Loss has occurred; and

 

(b)

the date of receipt by the Owners and/or their financiers (if any), in accordance with the terms of the relevant loss payable clause, of the proceeds of insurance relating to such Total Loss,

provided that it is hereby agreed that any insurance proceeds in respect of the Vessel received by the Owners and/or their financiers (if any) shall be applied in or towards discharging the Charterers’ obligation to pay the Termination Purchase Price and any interest accrued thereon (and such application shall be deemed satisfaction of the Charterers’ obligation to pay the Termination Purchase Price to the extent so satisfied) and in the event that the insurance proceeds received from the insurers exceed the Termination Purchase Price due (and any interest accrued thereon), the excess shall be firstly paid towards satisfying any amounts outstanding and owing by the Charterers or any of their Affiliates under any Other Charter and thereafter paid to the Charterers.

For the avoidance of doubt, in the event that the Vessel becomes a Total Loss:

 

  (A)

payment of the Charterhire and all other sums payable under the Leasing Documents during such period shall continue to be made by the Charterers in accordance with the terms thereof unless and until the Owners receive in full the Termination Purchase Price;

 

15


  (B)

should insurance proceeds be received by the Owners from the insurers, the Charterers’ obligations to pay the Termination Purchase Price shall be accordingly reduced by an amount corresponding to such insurance proceeds but in the event that such insurance proceeds are less than the amount of the Termination Purchase Price together with any interest accrued thereon, the Charterers remain obliged to pay to the Owners the balance so that the full amount of the Termination Purchase Price due together with any interest accrued thereon is received by the Owners; and

 

  (C)

the obligation of the Charterers to pay the Termination Purchase Price shall remain unaffected and exist regardless of whether any of the insurers have agreed or refused to meet or have disputed in good faith, the claim for Total Loss.

 

40.9

The Owners shall have no obligation to supply to the Charterers with a replacement vessel following the occurrence of a Total Loss.

CLAUSE 41 — FEES AND EXPENSES

 

41.1

In consideration of the Owners entering into this Charter, the Charterers shall pay to the Owners or their nominee a non-refundable handling fee at such time and in such amount to be set out in a Fee Letter.

 

41.2

Without prejudice to any other rights of the Owners under this Agreement, the Charterers shall promptly pay to the Owners on written demand on a full indemnity basis:

 

(a)

all costs, charges and expenses incurred by the Owners in collecting any Charterhire, the Advance Charterhire, the Deposit or other payments not paid on the due date under this Charter, in remedying any other failure of the Charterers to observe the terms and conditions of this Charter and in enforcing the Owners’ rights under any Leasing Document; and

 

(b)

all costs and expenses (including, but not limited to, legal costs) reasonably incurred by the Owners in the negotiation and execution of all documentation in relation to this Charter and the other Leasing Documents including, but not limited to, all costs incurred by the Owners and all legal costs, expenses and other disbursements incurred by the Owners’ legal counsels in connection with the same.

CLAUSE 42 - NO WAIVER OF RIGHTS

 

42.1

No neglect, delay, act, omission or indulgence on the part of either party in enforcing the terms and conditions of this Charter shall prejudice the strict rights of that party or be construed as a waiver thereof nor shall any single or partial exercise of any right of either party preclude any other or further exercise thereof.

 

42.2

No right or remedy conferred upon either party by this Charter shall be exclusive of any other right or remedy provided for herein or by law and all such rights and remedies shall be cumulative.

CLAUSE 43 - NOTICES

 

43.1

Any notice, certificate, demand or other communication to be served, given made or sent under or in relation to this Charter shall be in English and in writing and (without prejudice to any other valid method or giving making or sending the same) shall be deemed sufficiently given or made or sent if sent by registered post, fax or by email to the following respective addresses:

 

 

16


(A)    to the Owners:    c/o AVIC INTERNATIONAL LEASING CO., LTD.
      18/F, CATIC Tower,
      212 Jiang Ning Road,
      Shanghai 200041,
      The People’s Republic of China
      Attention: Emily Chen
      Email: chenzhengrong@chinaleasing.net
      Fax: +86 21 5289 5389
(B)    to the Charterers:    c/o NAVIOS TANKERS MANAGEMENT INC.
      85 Akti Miaouli, 18535, Piraeus, Greece
      Attention: Vasiliki Papaefthymiou
      Email: vpapaefthymiou@navios.com
      Fax: +30 210 41 72 070

or, if a party hereto changes its address or fax number, to such other address or fax number as that party may notify to the other.

CLAUSE 44 — TERMINATION EVENTS

 

44.1

The Owners and the Charterers hereby agree that any of the following events shall constitute a Termination Event:

 

(a)

any of the Relevant Persons (other than a Non-Subsidiary Manager) fails to make any payment within five (5) days of its due date under this Charter or any other Leasing Document to which they are a party; or

 

(b)

the Charterers breach or omit to observe or perform any of their undertakings in Clauses 46.1 (m), (n), (o), (p), (q), or (y) or the Guarantor breaches or omits to observe or perform its financial covenants contained in clause 11.20 (financial covenants) of the Guarantee; or

 

(c)

the Charterers fail to obtain and/or maintain the Insurances required under Clause 38 in accordance with the provisions thereof or any insurer in respect of such Insurances cancels the Insurances or disclaims liability with respect thereto; or

 

(d)

any of the Relevant Persons commits any other breach of, or omits to observe or perform, any of their other obligations or undertakings in this Charter or any Leasing Document (other than a breach referred to in paragraph (a), (b) and/or above) unless such breach or omission is, in the reasonable opinion of the Owners, remediable and such Relevant Person remedies such breach or omission to the satisfaction of the Owners within fourteen (14) Business Days (or in the case of Clause 46.1 (I), ten (10) Business Days) of the earlier of (i) notice thereof from the Owner or (ii) upon such Relevant Person becoming aware of the same; or

 

(e)

any representation or warranty made by any Relevant Person (other than a Non-Subsidiary Manager) in or pursuant to any Leasing Document proves to be untrue or misleading in any material way when made; or

 

(f)

any of the following occurs in relation to any Financial Indebtedness of a Relevant Person (other than a Non-Subsidiary Manager):

 

  (i)

any Financial Indebtedness of such Relevant Person is not paid when due or, if so payable, on demand after any applicable grace period has expired; or

 

  (ii)

any Financial Indebtedness of such Relevant Person becomes due and payable, or capable of being declared due and payable, prior to its stated maturity date as a consequence of any event of default and not as a consequence of the exercise of any voluntary right of prepayment; or

 

17


  (iii)

a lease, hire purchase agreement or charter creating any Financial Indebtedness of such Relevant Person is terminated by the lessor or owner as a consequence of any termination event or event of default (howsoever defined); or

 

  (iv)

any overdraft, loan, note issuance, acceptance credit, letter of credit, guarantee, foreign exchange or other facility, or any swap or other derivative contract or transaction, relating to any Financial Indebtedness of such Relevant Person ceases to be available or becomes capable of being terminated or declared due and payable or cash cover is required or becomes capable of being required, as a result of any termination event or event of default (howsoever defined),

provided that no Termination Event will occur under this Clause 44.1(f) in respect of such Relevant Person if (1) the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (i) to (iv) above is less than (A) in the case of such Relevant Person (other than the Charterers or the Guarantor), $1,000,000 (or its equivalent in any other currency) in aggregate and (B) in the case of the Guarantor, less than $10,000,000 (or its equivalent in any other currency) in aggregate and (2) such event has, in the opinion of the Owners, arisen solely and directly from a claim which is frivolous or vexatious and such claim is discharged, stayed or dismissed within fourteen (14) days of commencement; or

any of the following occurs in relation to a Relevant Person (other than a Non-Subsidiary Manager):

 

  (i)

such Relevant Person becomes, in the reasonable opinion of the Owners, unable to pay their debts as they fall due; or

 

  (ii)

the value of the assets of such Relevant Person is less than their liabilities;

 

  (iii)

any assets of the Charterers, any assets of the Guarantor exceeding the value of $10,000,000 (or its equivalent in any other currency) in aggregate, or any assets of such other Relevant Person exceeding $1,000,000 (or its equivalent in any other currency) are subject to any form of execution, attachment, arrest, sequestration or distress which is not discharged within thirty (30) days (or such longer period agreed by the Owners); or

 

  (iv)

any administrative or other receiver is appointed over all or a substantial part of the assets of such Relevant Person unless as part of a solvent reorganisation which has been approved by the Owners; or

 

  (v)

such Relevant Person makes any formal declaration of bankruptcy or any formal statement to the effect that they are insolvent or likely to become insolvent, or a winding up or administration order is made in relation to such Relevant Person, or the members or directors of such Relevant Person pass a resolution to the effect that they should be wound up, placed in administration or cease to carry on business; or

 

  (vi)

a petition is presented in any Relevant Jurisdiction for the winding up or administration, or the appointment of a provisional liquidator, of such Relevant Person unless the petition is being contested in good faith and on substantial grounds and is dismissed or withdrawn within thirty (30) days of the presentation of the petition; or

 

  (vii)

such Relevant Person petitions a court, or presents any proposal for, any form of judicial or non-judicial suspension or deferral of payments, reorganisation of their debt (or certain of their debt) or arrangement with all or a substantial proportion (by number or value) of their creditors or of any class of them or any such suspension or deferral of payments, reorganisation or arrangement is effected by court order, contract or otherwise; or

 

18


  (viii)

any meeting of the members or directors of such Relevant Person is summoned for the purpose of considering a resolution or proposal or resolving or proposing to authorise or take any action of a type described in paragraphs (iv) to (vii); or

 

  (ix)

in a country other than England and Wales, any event occurs or any procedure is commenced which, in the opinion of the Owners, is similar to any of the foregoing referred to in (ii) to (vii) above inclusive; or

 

  (x)

any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of such Relevant Person; or

 

(h)

a Relevant Person (other than a Non-Subsidiary Manager) suspends or ceases (or threatens to suspend or cease) carrying on all or a material part of its business; or

 

(i)

any consent, approval, authorisation, license or permit necessary to enable any Relevant Person to operate or charter the Vessel to enable them to comply with any provision of any Leasing Document or to ensure that the obligations of such Relevant Person are legal, valid, binding or enforceable is not granted, expires without being renewed, is revoked or becomes liable to revocation or any condition of such a consent, approval, authorisation, license or permit is not fulfilled; or

 

(j)

any event or circumstance occurs which has or is likely to have a Material Adverse Effect; or

 

(k)

the Vessel is subject to any form of execution, attachment, arrest, sequestration or distress which is not discharged within thirty (30) days (or such longer period as the Owners may agree); or

 

(I)

this Charter or any Leasing Document or any Security Interest created by a Leasing Document is cancelled, terminated, rescinded or suspended or otherwise ceases to remain in full force and effect for any reason or no longer constitutes valid, binding and enforceable obligations of any party to that document for any reason whatsoever; or

 

(m)

any Relevant Person rescinds or purports to rescind or repudiates or purports to repudiate a Leasing Document; or

 

(n)

it is or has become:

 

  (i)

unlawful or prohibited, whether as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be interpreted or applied; or

 

  (ii)

contrary to, or inconsistent with, any regulation,

for any Relevant Person to maintain or give effect to any of its obligations under this Charter or any of the other Leasing Documents to which it is a party in the manner it is contemplated under such Leasing Document or any of the obligations of such Relevant Person under any Leasing Document to which it is a party are not or cease to be legal, valid, binding and enforceable; or

 

(o)

the Security Interest constituted by any Security Document is in any way imperilled or in jeopardy; or

 

(p)

DELETED; or

 

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(q)

there is a merger, amalgamation, demerger or corporation reconstructions of a Relevant Person (other than a Non-Subsidiary Manager or where, in the case of the Guarantor, the Guarantor remains the surviving legal entity following the occurrence of such event) or a change of control or legal or beneficial ownership of the Charterers from that set out in Clause 45.1(a) and (b) without the Owners’ prior written consent; or

 

(r)

there is a change in control of the Guarantor from that set out in Clause 45.1(c) without the Owners’ prior written consent; or

 

(s)

save with the prior written consent of the Owners, the Guarantor is de-listed from the New York Stock Exchange or the trading of its shares on the New York Stock Exchange is suspended for any reason for a period of exceeding twenty (20) consecutive days; or

 

(t)

any Termination Event (as defined in any Other Charter or any Associated Charter) occurs under such Other Charter or Associated Charter.

 

44.2

At any time after the occurrence of a Termination Event which is continuing, the Owners may in its absolute discretion, issue a written notice to the Charterers advising the Charterers of the Owners’ intention to terminate this Charter on the date specified in such notice (the “Termination Date”) and requiring the Charterers to:

 

(a)

pay to the Owners the Termination Purchase Price on the Termination Date, whereupon the Charterers shall be obliged to pay the Termination Purchase Price on such date; or

 

(b)

redeliver the Vessel to the Owners (or their nominee) on the Termination Date at such safe and ready port as the Owners may require whereupon the Charterers shall be obliged to redeliver the Vessel at such specified time and place,

and it is hereby agreed that:

 

  (i)

the Charterers shall be obliged to continue to pay Charterhire up to and including the Termination Date in each of the above cases; and

 

  (ii)

if the Charterers fail to move the Vessel forthwith to such location as the Owners may direct pursuant to this Clause or Clause 40.3, the Owners (or their agents and representatives) may, to the extent permitted by applicable law and without prejudice to any of the obligations of the Charterers hereunder, take possession of the Vessel and for this purpose, the Owners (or their agents and representatives) may enter any premises belonging to or in the occupation or under the control of the Charterers, the Guarantor or any of its Affiliates, to board the Vessel and cause the Vessel to be redelivered to the Owners by any lawful means.

 

44.3

For the avoidance of doubt, notwithstanding any action taken by the Owners following a Termination Event, the Charterers shall remain liable for the outstanding obligations on their part to be performed under this Charter.

 

44.4

Without limiting the generality of the foregoing or any other rights of the Owners, upon the occurrence of a Termination Event, the Owners shall have the sole and exclusive right and power to (i) settle, compromise, compound, adjust or defend any actions, suits or proceedings relating to or pertaining to the Vessel and this Charter, (ii) make proof of loss, appear in and prosecute any action arising from any policy or policies of insurance maintained pursuant to this Charter, and settle, adjust or compromise any claims for loss, damage or destruction under, or take any other action in respect of, any such policy or policies and (iii) change or appoint a new manager for the Vessel other than the Approved Manager and the appointment of the Approved Manager may be terminated immediately without any recourse to the Owners.

 

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44.5

Each Termination Event shall either be a breach of condition by the Charterers where it involves a breach of this Charter or any of the other Leasing Document by the Charterers or shall otherwise be an agreed terminating event, the occurrence of which gives rise to a right of the Owners to terminate the leasing of the Vessel under this Charter and to exercise its rights under this clause.

CLAUSE 44A — MANDATORY SALE

 

44A.1

Subject to Clause 44A.2, if it becomes unlawful in any applicable jurisdiction for the Owners to perform any of their obligations as contemplated by this Charter, the Owners shall notify the Charterers of this event and the Charterers shall be required to pay the Termination Purchase Price to the Owners on the next Payment Date following such notice by the Owners or, if earlier, the date specified by the Owners in the notice delivered to the Charterers (being no earlier than the last day of any applicable grace period permitted by law),and this Charter shall terminate in accordance with the procedures set out in Clause 40.

 

44A.2

If the Termination Purchase Price becomes payable under or pursuant to Clause 44A.1, the Owners shall, in consultation with the Charterers for a period not less thirty (30) days from the occurrence of the circumstances resulting in the Termination Purchase Price becoming payable under or pursuant to Clause 44A.1, take all reasonable steps to mitigate any such circumstances, provided that (i) this Clause 44A.2 does not in any way limit the obligations of any Relevant Person under any Leasing Documents; and (ii) the Owners are not obliged to take any steps under this Clause 44A.2 if, in the opinion of the Owners, to do so might be prejudicial to the Owners.

 

44A.3

If it is or has become:

 

  (i)

unlawful or prohibited, whether as a result of the introduction of a new law, an amendment to an existing law or a change in the manner in which an existing law is or will be applied; or

 

  (ii)

contrary to, or inconsistent with, any regulation,

for any Relevant Person to maintain or give effect to any of its obligations under this Charter or any of the other Leasing Documents to which it is a party in the manner it is contemplated under such Leasing Document or any of the obligations of such Relevant Person under any Leasing Document to which it is a party are not or cease to be legal, valid, binding and enforceable, the Charterers shall be required to pay the Termination Purchase Price to the Owners on the next Payment Date following such occurrence or, if earlier, a date specified by the Owners (being no earlier than the last day of any applicable grace period permitted by law), and this Charter shall terminate in accordance with the procedures set out in Clause 40.

CLAUSE 45 — REPRESENTATIONS AND WARRANTIES

 

45.1

The Charterers represent and warrant to the Owners as of the date of this Charter and on each day thereafter until the last day of the Charter Period, as follows:

 

(a)

the Charterers are wholly legally owned by the Shareholder and the Shareholder is wholly legally owned by the Guarantor;

 

(b)

the Charterers are wholly beneficially owned by the Guarantor;

 

(c)

Mrs Angeliki Frangou either directly or indirectly (through entities owned and controlled by her or trusts or foundations of which she is the beneficiary) and/or Navios Maritime Holdings Inc. is the ultimate beneficial owner of, or has ultimate control of the voting rights attaching to, 20 per cent. of all the issued shares in the Guarantor;

 

21


(d)

each of the Relevant Persons is duly incorporated and validly existing under the laws of its jurisdiction of its incorporation;

 

(e)

each of the Relevant Persons has the corporate capacity, and has taken all corporate actions and obtained all consents, approvals, authorisations, licenses or permits necessary for it:

 

  (i)

to execute each of the Leasing Documents and any Approved Sub-charter to which it is a party; and

 

  (ii)

to comply with and perform its obligations under each of the Leasing Documents and any Approved Sub-charter to which it is a party;

 

(f)

all consents, approvals, authorisations, licenses or permits referred to in Clause 45.1(e) required or desirable to (i) enable each Relevant Person lawfully to enter into, exercise their rights and comply with its obligations in the Leasing Documents and any Approved Sub-charter to which such Relevant Person is a party to and (ii) to make the Leasing Documents and any Approved Sub-charter to which such Relevant Person is a party to admissible in evidence in such Relevant Person’s Relevant Jurisdictions, have been obtained or effected and are in full force and effect;

 

(g)

all the consents, approvals, authorisations, licenses or permits referred to in Clause 45.1(e) remain in force and nothing has occurred which makes any of them liable to revocation;

 

(h)

each of the Leasing Documents to which a Relevant Person is a party constitutes such Relevant Person’s legal, valid and binding obligations enforceable against such party in accordance with its respective terms and any relevant insolvency laws affecting creditors’ rights generally;

 

(i)

no third party has any Security Interest, other than the Permitted Security Interests, or any other interest, right or claim over, in or in relation to the Vessel, this Charter or any moneys payable hereunder and/or any of the other Leasing Documents;

 

(j)

all payments which a Relevant Person is liable to make under any Leasing Document to which such Relevant Person is a party may be made by such party without deduction or withholding for or on account of any tax payable under the laws of the jurisdiction of incorporation;

 

(k)

no legal or administrative action involving a Relevant Person (including without limitation, in relation to any Environmental Claim) has been commenced or taken, which if adversely determined, would have or which is likely to have a Material Adverse Effect;

 

(I)

each of the Relevant Persons has paid all taxes applicable to, or imposed on or in relation to it, its business or if applicable, the Vessel, except for those being contested in good faith and for which adequate reserves have been made;

 

(m)

the choice of governing law as stated in each Leasing Document to which a Relevant Person is a party and the agreement by such party to refer disputes to the relevant courts or tribunals as stated in such Leasing Document are valid and binding against such Relevant Person;

 

(n)

no Relevant Person nor any of their assets are entitled to immunity on the grounds of sovereignty or otherwise from any legal action or proceeding (which shall include, without limitation, suit, attachment prior to judgment, execution or other enforcement);

 

(o)

the obligations of each Relevant Person under each Leasing Document to which it is a party, are the direct, general and unconditional obligations of such Relevant Person and, rank at least pari passu with all other present and future unsecured and unsubordinated creditors of such Relevant Person save for any obligation which is mandatorily preferred by law and not by virtue of any contract;

 

22


(p)

each Leasing Document creates (or, once entered into, will create) the Security Interest which it is expressed to create with the ranking and priority it is expressed to have;

 

(q)

no Relevant Person is a US Tax Obligor, and no Relevant Person has established a place of business in the United Kingdom or the United States of America;

 

(r)

no Relevant Person nor any of their respective directors, officers, employees or agents is a Restricted Person and to the best of the Charterers’ knowledge and belief (having made all due and careful enquiry), no Approved Sub-charterer nor any of its directors, officers, employees or agents is a Restricted Person;

 

(s)

each Relevant Person and their respective directors, officers, employees and agents, and to the best of the Charterers’ knowledge and belief (having made all due and careful enquiry), the Approved Sub-charterer and its directors, officers, employees and agents, is in compliance with all Sanctions laws;

 

(t)

each Relevant Person and their respective directors, officers, employees and agents, and to the best of the Charterers’ knowledge and belief (having made all due and careful enquiry), the Approved Sub-charterer and its directors, officers, employees and agents have not (i) been or are currently being investigated on compliance with Sanctions, (ii) received notice or are aware of any claim, action, suit or proceeding against any of them with respect to Sanctions and (iii) taken any action to evade the application of Sanctions;

 

(u)

the Vessel is not employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular, the Vessel is not used by or to benefit any party which is a target of Sanctions or trade to any area or country where trading the Vessel to such area or country would constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the European Union, the United States of America, the United Kingdom or the People’s Republic of China; or (ii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation;

 

(v)

each Relevant Person and to the best of the Charterers’ knowledge and belief (having made all due and careful enquiry) the Approved Sub-charterer, is not in breach of any laws or regulations relating to the Vessel and its ownership, employment, operation, management and registration, including the ISM Code, the ISPS Code, all Environmental Laws, the laws of the Vessel’s registry and in particular, all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws and each of the Relevant Persons has instituted and maintained systems, controls, policies and procedures designed to:

 

  (i)

prevent and detect incidences of bribery and corruption, money laundering and terrorism financing; and

 

  (ii)

promote and achieve compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws;

 

(w)

no Relevant Person nor any of their assets, in each case, has any right to immunity from set off, legal proceedings, attachment prior to judgment or other attachment or execution of judgment on the grounds of sovereign immunity or otherwise;

 

(x)

no Relevant Persons is insolvent or in liquidation or administration or subject to any other formal or informal insolvency procedure, and no receiver, administrative receiver, administrator, liquidator, trustee or analogous officer has been appointed in respect of the Relevant Persons or all or material part of their assets;

 

(y)

that in respect of any Approved Sub-charter:

 

23


  (i)

the copy of such Approved Sub-charter provided to the Owners is a true and complete copy;

 

  (ii)

in the case of an Approved Sub-charter being a bareboat charter and/or contains a restriction on Vessel sale or on assignment, the relevant Approved Sub-charterer is fully aware of the content of and the transactions contemplated under this Charter and the Leasing Documents and consents to the same;

 

(z)

no Termination Event or Potential Termination Event has occurred or might reasonably be expected to result from the entry into and performance of this Charter or any other Leasing Document;

 

(aa)

the Charterers have not entered into any other investments, any sale or leaseback agreements, any off-balance sheet transaction or incur any other liability or obligation (including without limitation, any Financial Indebtedness of any obligations under a guarantee) except:

 

  (i)

liabilities and obligations under the Leasing Documents to which they are or, as the case may be, will be a party; or

 

  (ii)

liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Vessel;

 

(bb)

apart from the listing of the shares of the Guarantor on the New York Stock Exchange, none of the shares of a Relevant Person are listed on any stock exchange for listed shares;

 

(cc)

any factual information provided by the Charterers (or on their behalf) to the Owners was true and accurate in all material respects as at the date it was provided or as the date at which such information was stated; and

 

(dd)

the entry by each Relevant Person into any Leasing Document does not in any way cause any breach, and is in all respects permitted, under the terms of any document which it is entered into.

CLAUSE 46 — CHARTERERS’ UNDERTAKINGS

 

46.1

The Charterers undertake that they shall comply or procure compliance with the following undertakings commencing from the date of this Charter and up to the last day of the Charter Period:

 

(a)

there shall be sent to the Owners:

 

  (i)

as soon as possible, but in no event later than 90 days after the end of each financial half-year, the consolidated semi-annual accounts of the Guarantor certified as to their correctness by an officer of the Guarantor;

 

  (ii)

as soon as possible, but in no event later than 180 days after the end of each financial year of the Guarantor, the audited consolidated annual financial reports of the Guarantor;

 

(b)

they will provide to the Owners, promptly at the Owners’ request, copies of all notices and minutes relating to any of their extraordinary shareholders’ meeting which are despatched to the Charterers’ or the Guarantor’s respective shareholders or any class of them save that publicly disclosed notices and minutes not concerning the Vessel or the Leasing Documents need not be provided to the Owners under this Clause;

 

24


(c)

they will provide to the Owners, promptly at the Owners’ requests, copies of all notices and notices of meetings which are despatched to the Charterers’ or Guarantors’ other creditors (if any);

 

(d)

they will provide or will procure that each other Relevant Person provides the Owners with details of any legal, arbitral or administrative action involving such Relevant Person (provided that in the case where such Relevant Person is the Guarantor, such claim under such legal, arbitral or administrative action either (1) exceeds the sum of US$10,000,000 (or its equivalent in any other currency) or (2) which if adversely determined against the Guarantor, would or is likely to have a Material Adverse Effect) or the Vessel as soon as such action is instituted or it becomes apparent to such Relevant Person that it is likely to be instituted and is likely to have a material adverse effect on the ability of a Relevant Person to perform their obligations under each Leasing Document to which it is a party;

 

(e)

they will, and will procure that each other Relevant Person obtains and promptly renews or procure the obtainment or renewal of and provide copies of, from time to time, any necessary consents, approvals, authorisations, licenses or permits or any regulatory body or authority for the transactions contemplated under each Leasing Document to which it is a party (including without limitation to sell, charter and operate the Vessel);

 

(f)

they will not, and will procure that each other Relevant Person will not, create, assume or permit to exist any Security Interest of any kind upon any Leasing Document to which such Relevant Person is a party, and if applicable, the Vessel, in each case other than the Permitted Security Interests;

 

(g)

they will at their own cost, and will procure that each other Relevant Person will:

 

  (i)

do all that such Relevant Person reasonably can to ensure that any Leasing Document to which such Relevant Person is a party validly creates the obligations and the Security Interests which such Relevant Person purports to create; and

 

  (ii)

without limiting the generality of paragraph (i), promptly register, file, record or enrol any Leasing Document to which such Relevant Person is a party with any court or authority in all Relevant Jurisdictions, pay any stamp duty, registration or similar tax in all Relevant Jurisdictions in respect of any Leasing Document to which such Relevant Person is a party, give any notice or take any other step which, is or has become necessary or desirable for any such Leasing Document to be valid, enforceable or admissible in evidence or to ensure or protect the priority of any Security Interest which such Relevant Person creates;

 

(h)

they will, and will procure that each other Relevant Person (other than a Non-Subsidiary Manager), notify the Owners immediately of the occurrence of:

 

  (i)

any damage and/or alteration caused to the Vessel by any reason whatsoever which results, or may be expected to result, in repairs on the Vessel which exceed $1,000,000 (or its equivalent in any other currency);

 

  (ii)

any material safety incidents taking place on board the Vessel;

 

  (iii)

any casualty or occurrence as a result of which the Vessel has become or is, by the passing of time or otherwise, likely to become, a Major Casualty;

 

  (iv)

any Environmental Claim which is made against the Charterers, Approved Sub-charterer or the Approved Manager in connection with the Vessel or any Environmental Incident;

 

25


  (v)

any arrest or detention of the Vessel, any exercise or purported exercise of any lien on that Vessel or its Earnings or any requisition of that Vessel for hire; and

 

  (vi)

any Potential Termination Event or Termination Event,

and will keep the Owners fully up-to-date with all developments and the Charterers will, if so requested by the Owners, provide any such certificate signed by an officer, confirming that there exists no Potential Termination Event or Termination Event;

 

(i)

they will, and will procure that each other Relevant Person will, as soon as practicable after receiving the request, provide the Owners with any additional financial or other information relating:

 

  (i)

to themselves and/or the Vessel (including, but not limited to the condition and location of the Vessel); or

 

  (ii)

to any other matter relevant to, or to any provision of any Leasing Document to which it is a party,

which may be reasonably requested by the Owners (or their financiers (if any)) at any time;

 

(j)

without prejudice to Clause 46.1(m), comply, or procure compliance, and will procure that each other Relevant Person will comply or procure compliance, with all laws or regulations relating to the Vessel and its ownership, employment, operation, management and registration, including the ISM Code, the ISPS Code, all Environmental Laws and the laws of the Vessel’s registry;

 

(k)

the Vessel shall be classed with the Classification Society and shall be free of all overdue recommendations and requirements;

 

(I)

they will ensure and procure that:

 

  (i)

the Market Value of the Vessel shall be ascertained from time to time in the following circumstances:

 

  (aa)

upon the occurrence of a Potential Termination Event or a Termination Event which is continuing, at any time at the request of the Owners (including, without limitation, for the purposes set out in Clause 40.3(b)(ii)(B)); and

 

  (bb)

in the absence of a Potential Termination Event or Termination Event:

 

  (i)

at least once every calendar year, with such report to be dated no more than thirty (30) calendar days prior to every anniversary of the Commencement Date occurring within the Charter Period or on such other date as the Owners may request; and

 

  (ii)

at any time at the request of the Owners if the Owners have determined (in their sole discretion) that the aggregate of the Market Value of the Vessel and the Deposit falls below an amount equal to the Minimum Amount; and

 

  (ii)

the Charterers shall pay the amount of the fees and expenses incurred by the Owners in connection with any matter arising out of this paragraph (I);

 

(m)

they shall comply, shall procure that each other Relevant Person complies with all laws and regulations in respect of Sanctions, and in particular, they shall effect and maintain a sanctions compliance policy to ensure compliance with all such laws and regulations implemented from time to time which inter alia implements the recommendations of the Sanctions Advisory;

 

26


(n)

the Vessel shall not be employed, operated or managed in any manner which (i) is contrary to any Sanctions and in particular, the Vessel shall not be used by or to benefit any party which is a target of Sanctions and/or is a Restricted Person or trade to any area or country where trading the Vessel to such area or country would constitute or reasonably be expected to constitute a breach of any Sanctions or published boycotts imposed by any of the United Nations, the European Union, the United States of America, the United Kingdom or the People’s Republic of China, (ii) would result or reasonably be expected to result in any Relevant Person or the Owners becoming a Restricted Person or (iii) would trigger the operation of any sanctions limitation or exclusion clause in any insurance documentation;

 

(o)

they shall, and shall procure that each other Relevant Person shall, and shall use all reasonable endeavours to procure that the Approved Sub-charterer shall, promptly notify the Owners of any non-compliance, by any Relevant Person, the Approved Sub-charterer or their respective officers, directors, employees, consultants, agents or intermediaries, with all laws and regulations relating to Sanctions, Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and/or Business Ethics Laws (including but not limited to notifying the Owners in writing immediately upon being aware that any Relevant Person, the Approved Sub-charterer or its shareholders, directors, officers or employees is a Restricted Person or has otherwise become a target of Sanctions) as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether any of the aforesaid parties are in compliance with such laws;

 

(p)

they shall, and shall procure that each other Relevant Person shall, and shall use all reasonable endeavours to procure that the Approved Sub-charterer shall, (in each case above, including procuring or as the case may be, using all reasonable endeavours to procure the respective officers, directors, employees, consultants, agents and/or intermediaries of the relevant entity to do the same) shall:

 

  (i)

comply with all Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws;

 

  (ii)

maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws, Anti-Terrorism Financing Laws and Business Ethics Laws; and

 

  (iii)

in respect of the Charterers, not use, or permit or authorize any person to directly or indirectly use, the Purchase Price for any purpose that would breach any Anti-Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws;

 

(q)

in respect of the Charterers, not lend, invest, contribute or otherwise make available the Purchase Price to or for any other person in a manner which would result in a violation of Anti-Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws;

 

(r)

they shall not appoint or permit to be appointed any manager of the Vessel unless it is the Approved Manager appointed on terms acceptable to the Owners and their financiers (if any) and such Approved Manager has (prior to accepting its appointment) entered into a Manager’s Undertaking;

 

(s)

they shall ensure that all Earnings and any other amounts received by them in connection with the Vessel are paid into the Earnings Account;

 

(t)

the aggregate of the Market Value of the Vessel and the Deposit falls below an amount (the “Minimum Amount”) equal to:

 

27


  (i)

during the period commencing from the Commencement Date up to and including the second anniversary of the Commencement Date, 120% of the Outstanding Principal Balance; and

 

  (ii)

during the period commencing from the date falling after the second anniversary of the Commencement Date up to the last day of the Charter Period, an amount equal to 120% of the Purchase Option Price (but excluding the amounts referred to under limbs (b) to (e) of such defined term and without deducting the Deposit) applicable to the immediately preceding anniversary date of the Commencement Date prevailing at the relevant time,

the Charterers shall, upon request, promptly and in any event not later than the date falling five (5) Business Days after the Owners notify them of such circumstance, (A) prepay such part of the Charterhire Principal Balance in an amount equal to such shortfall of the Minimum Amount whereupon such prepayment shall be applied towards payment of (I) the instalments of Charterhire A (or part thereof) payable hereunder in inverse chronological order or (II) in the event of the valid exercise by the Charterers of a Purchase Option (and always without prejudice to Clause 47.4), the relevant portion of the applicable Purchase Option Price or (B) (at Owners’ option) the Charterers may provide additional security which has a net realizable amount (in Owners’ opinion) in an amount at least equal to the applicable shortfall;

 

(u)

upon request, they will provide or they will procure to be provided to the Owners the report(s) of the survey(s) conducted pursuant to Clause 7 of this Charter in form and substance satisfactory to the Owners;

 

(v)

they shall not sub-charter the Vessel on a bareboat basis without the prior written consent of the Owners (and if such consent is given on the basis that any sub-charterer shall assign its insurance interest to the Owners) and they shall not otherwise permit the sub-chartering of the Vessel for a period exceeding twelve (12) months (including extensions or options for extensions thereto) other than under an Approved Sub-charter provided that as a condition precedent to the execution of any Approved Sub-charter, the Charterers assign all their rights and interests under such Approved Sub-charter and shall use commercially reasonable endeavours to procure such Approved Sub-charterer gives a written acknowledgment of such assignment in form and substance acceptable to the Owners and provide such documents as the Owners may reasonably require regarding the due execution of such Approved Sub-charter;

 

(w)

in respect of an Approved Sub-charter which contains an option to extend the charter period, they shall notify the Owners as soon as they become aware that the relevant Approved Sub-charterer does not intend to, or has not by the date falling 20 days prior to the date on which such Approved Sub-charter will expire, exercise the relevant option to extend the same;

 

(x)

they shall not make or pay any dividend or other distribution (in cash or in kind) in respect of its share capital following the occurrence of a Potential Termination Event or Termination Event or which would result in a Potential Termination Event or Termination Event;

 

(y)

the Vessel shall be registered under the Flag State at all times;

 

(z)

they shall not enter into any other investments, any sale or leaseback agreements, any off-balance sheet transaction or incur any other liability or obligation (including without limitation, any Financial Indebtedness of any obligations under a guarantee) except:

 

  (i)

liabilities and obligations under the Leasing Documents to which it is or, as the case may be, will be a party; or

 

  (ii)

liabilities or obligations reasonably incurred in the normal course of its business of trading, operating and chartering, maintaining and repairing the Vessel; and

 

28


(aa)

any transaction entered into with their Affiliates shall be on arm’s length basis and in good faith.

CLAUSE 47 PURCHASE OPTION

 

47.1

The Charterers shall have the option, at any time on or after the second anniversary of the Commencement Date, to purchase the Vessel on any Payment Date (the “Purchase Option Date”) specified in a notice (the “Purchase Option Notice”) at the applicable Purchase Option Price, subject always to giving the Owners no less than sixty (60) days’ prior written notice.

 

47.2

A Purchase Option Notice shall be signed by a duly authorised officer or attorney of the Charterers and, once delivered to the Owners, is irrevocable and the Charterers shall be bound to pay to the Owners the Purchase Option Price on the Purchase Option Date.

 

47.3

Only one Purchase Option Notice may be served throughout the duration of the Charter Period.

 

47.4

Upon the Owners’ receipt in full of the Purchase Option Price, the Owners shall transfer the legal and beneficial ownership of the Vessel on an “as is where is” basis (and otherwise in accordance with the terms and conditions set out at Clauses 49.1(a) and 49.1(b)) to the Charterers or their nominees and shall execute a bill of sale and a protocol of delivery and acceptance evidencing the same and any other document strictly necessary to transfer the title of the Vessel to the Charterers (and to the extent required for such purposes the Vessel shall be deemed first to have been redelivered to the Owners).

CLAUSE 48 — PURCHASE OBLIGATION

 

48.1

Subject to the other provisions of this Charter, in consideration of the Owners entering into this Charter, on the last day of the natural expiration of the Charter Period, provided all moneys owing and payable under this Charter have been fully and irrevocably paid to the Owners:

 

  (a)

subject to the Owners’ right to make the Election as described in this Clause 48.1, the Owners shall pay an amount equal to the Deposit to the Charterers; and

 

  (b)

the Charterers shall on the last day of the natural expiration of the Charter Period, be obliged to purchase from the Owners all of the Owners’ beneficial and legal right, title and interest in the Vessel and all belonging to her and the Owners and the Charterers shall perform their obligations referred to in Clause 49 and the Charterer shall pay the Purchase Obligation Price on the Purchase Obligation Date in relation thereto (unless the Owners agree otherwise in writing and upon such terms and conditions as the Owners may deem fit in their absolute discretion),

and the Charterers shall be permitted to set off an amount equal to the Purchase Obligation Price payable by the Charterers to the Owners against the Owners’ obligation to pay the Deposit to the Charterers whereupon such set-off shall be deemed to satisfy the Charterers’ obligation to pay the Purchase Obligation Price to the Owners, provided that the Owners may alternatively elect (the “Election”) to set off their obligation to pay the Deposit (after the Charterers have set off an amount equal to the Purchase Obligation Price therefrom) from the Balloon Charterhire Amount payable on the last Payment Date if the Owners provide the Charterers with 3 Business Days’ written notice of such Election prior to the last Payment Date.

 

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CLAUSE 49 — SALE OF THE VESSEL BY PURCHASE OPTION OR PURCHASE OBLIGATION

 

49.1

On the Purchase Option Date or the Purchase Obligation Date, all legal and beneficial interest and title in the Vessel shall be transferred to the Charterers by the Owners upon receipt by the Owners of the Purchase Option Price or the Purchase Obligation Price (as the case may be) on an “as is where is” basis and on the following terms and conditions:

 

(a)

the Charterers expressly agree and acknowledge that no condition, warranty or representation of any kind is or has been given by or on behalf of the Owners in respect of the Vessel or any part thereof, and accordingly the Charterers confirm that they have not, in entering into this Charter, relied on any condition, warranty or representation by the Owners or any person on the Owners’ behalf, express or implied, whether arising by law or otherwise in relation to the Vessel or any part thereof, including, without limitation, warranties or representations as to the description, suitability, quality, merchantability, fitness for any purpose, value, state, condition, appearance, safety, durability, design or operation of any kind or nature of the Vessel or any part thereof, and the benefit of any such condition, warranty or representation by the Owners is hereby irrevocably and unconditionally waived by the Charterers to the extent permissible under applicable law, the Charterers hereby also waive any rights which they may have in tort in respect of any of the matters referred to under this Clause and irrevocably agree that (i) the Owners shall have no greater liability in tort in respect of any such matter than they would have in contract after taking account of all of the foregoing exclusions; (ii) no third party making any representation or warranty relating to the Vessel or any part thereof is the agent of the Owners nor has any such third party authority to bind the Owners thereby and (iii) notwithstanding anything contained above, nothing contained herein is intended to obviate, remove or waive any rights or warranties or other claims relating thereto which the Charterers (or their nominee) or the Owners may have against the manufacturer or supplier of the Vessel or any third party;

 

(b)

the Vessel shall be free from any registered mortgages or any other liens, encumbrances or debts created or permitted to exist by the Owners (save for those mortgages, liens, encumbrances or debts created under the Leasing Documents);

 

(c)

the Purchase Option Price or the Purchase Obligation Price (as the case may be) shall be paid by (or on behalf of) the Charterers to the Owners on respectively the Purchase Option Date or the Purchase Obligation Date, together with unpaid amounts of Charterhire and other moneys owing by or accrued or due from the Charterers under this Charter on or prior to the Purchase Option Date or Purchase Obligation Date (as the case may be) which remain unpaid; and

 

(d)

upon the Purchase Option Price or the Purchase Obligation Price (as the case may be) and all other moneys payable under this Charter being fully and irrevocably paid to the Owners on, and in accordance with, the terms set forth in this Charter (except in the case of Total Loss) the Owners agree (at the cost of the Charterers) to enter into (i) a bill of sale and (ii) a protocol of delivery and acceptance, and the Vessel shall accordingly be deemed delivered to the Charterers on the date and time set out in such protocol of delivery and acceptance (and to the extent required for such purposes the Vessel shall be deemed first to have been redelivered to the Owners).

CLAUSE 50 INDEMNITIES

 

50.1

The Charterers shall pay such amounts to the Owners, on the Owners’ demand, in respect of all documented claims, expenses, liabilities, losses, fees (including, but not limited to, any legal fees, FME fees, Owner registration fees or vessel registration, and tonnage fees) suffered or incurred by or imposed on the Owners arising directly or indirectly from this Charter and any Leasing Document or in connection with delivery, possession, performance, control, registration, payment of tonnage tax or other registration fees or fees associated with maintaining (or subject to this Charter, changing) the relevant registry of the Vessel, repair, survey, insurance, maintenance, manufacture, purchase, ownership and operation of the Vessel by the Owners and the costs related to the prevention or release of liens or detention of or requisition, use, operation or redelivery, repossession, sale or disposal of the Vessel or any part of it, enforcement of the Owners’ rights under any Leasing Document, and whether

 

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  prior to, during or after termination of the leasing of this Charter and whether or not the Vessel is in the possession or the control of the Charterers or otherwise. Without prejudice to its generality, this Clause covers any documented claims, expenses, liabilities and losses which arise, or are asserted, under or in connection with any law relating to safety at sea, the ISM Code, the ISPS Code, the MARPOL Protocol, any Environmental Law, any Sanctions, Anti-Money Laundering Laws, Anti-Terrorism Financing Laws or Business Ethics Laws.

 

50.2

Without prejudice to the above Clause 50.1, if any sum (a “Sum”) due from a Relevant Person under the Leasing Documents, or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

 

(a)

making or filing a claim or proof against that Relevant Person; or

 

(b)

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

the Charterers shall, as an independent obligation, on demand, indemnify the Owners against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.

 

50.3

The obligations of the Charterers under Clause 50 and in respect of any Security Interest created pursuant to the Security Documents will not be affected or discharged by an act, omission, matter or thing which would reduce, release or prejudice any of its obligations under Clause 50 or in respect of any Security Interest created pursuant to the Security Documents (without limitation and whether or not known to it or any Relevant Person) including:

 

(a)

any time, waiver or consent granted to, or composition with, any Relevant Person or other person;

 

(b)

the release of any other Relevant Person or any other person under the terms of any composition or arrangement with any creditor of the Guarantor or any of its affiliates;

 

(c)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing any rights against, or security over assets of, any Relevant Person or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(d)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Relevant Person or any other person;

 

(e)

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Leasing Document or any other document or security;

 

(f)

any unenforceability, illegality or invalidity of any obligation of any person under any Security Document or any other document or security; or

 

(g)

any insolvency or similar proceedings.

 

50.4

Notwithstanding anything to the contrary under the Leasing Documents (but subject and without prejudice to Clause 33) and without prejudice to any right to damages or other claim which the Charterers may have at any time against the Owners under this Charter, the

 

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indemnities provided by the Charterers in favour of the Owners shall continue in full force and effect after the Charter Period notwithstanding any breach of the terms of this Charter or such Leasing Document or termination or cancellation of this Charter or such Leasing Document pursuant to the terms hereof or thereof or termination of this Charter or such Leasing Document by the Owners.

 

50.5

In consideration of the Charterers requesting the Other Owners to charter the Other Vessels to the Other Charterers under the Other Charters, the Charterers hereby irrevocably and unconditionally undertake to pay immediately on demand (as primary obligor) from the Owners or, as the case may be, the Other Owners (or any of them, as the case may be) such amounts in respect of all claims, expenses, liabilities, losses, fees of every kind and nature and all other moneys due, owing and/or payable to the Other Owners under or in connection with the Other Charters, and to indemnify and hold the Other Owners harmless against all such moneys, costs, fees and expenses incurred or suffered or outstanding under the Other Charters.

 

50.6

All rights which the Charterers have at any time (whether in respect of this Charter or any other transaction) against the Other Charterers, the Associated Charterers or the Guarantor or any of them shall be fully subordinated to the rights of the Owners under the Leasing Documents and until the end of this Charter and unless the Owners otherwise direct, the Charterers shall not exercise any rights which it may have (whether in respect of this Charter or any other transaction) by reason of performance by it of its obligations under the Leasing Documents or by reason of any amount becoming payable, or liability arising, under this Clause:

 

(a)

to be indemnified by the Other Charterers, the Associated Charterers or the Guarantor or any of them;

 

(b)

to claim any contribution from any third party providing security for, or any other guarantor of, the Other Charterers’ or the Guarantor’s obligations under the Leasing Documents;

 

(c)

to take any benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Other Charterers or the Guarantor or any of them under the Leasing Documents or of any other guarantee or security taken pursuant to, or in connection with, the Leasing Documents by any of the aforesaid parties;

 

(d)

to bring legal or other proceedings for an order requiring any of the Other Charterers or the Guarantor or any of them to make any payment, or perform any obligation, in respect of any Leasing Document;

 

(e)

to exercise any right of set-off against any of the Other Charterers, the Associated Charterers or the Guarantor or any of them; and/or

 

(f)

to claim or prove as a creditor of any of the Other Charterers, the Associated Charterers or the Guarantor or any of them,

and if the Charterers receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Owners or the Other Owners by the Other Charterers or the Guarantor or any of them under or in connection with the Leasing Documents to be repaid in full on trust for the Owners or the Other Owners and shall promptly pay or transfer the same to the Owners or the Other Owners as may be directed by the Owners.

 

50.7

The Charterers hereby irrevocably agree to indemnify and hold harmless the Owners against any claim, expense, liability or loss reasonably incurred by the Owners (and which is notified to the Charterers) in liquidating or employing deposits from their financiers or third parties to fund the acquisition of the Vessel pursuant to the MOA, on or prior to the Commencement Date.

 

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50.8

Notwithstanding anything to the contrary herein (but subject and without prejudice to Clause 33 (Cancellation)) and without prejudice to any right to damages or other claim which the Charterers may have at any time against the Owners under this Charter, the indemnities provided by the Charterers in favour of the Owners shall continue in full force and effect after the Charter Period notwithstanding any breach of the terms of this Charter or termination of this Charter pursuant to the terms hereof or termination of this Charter by the Owners.

CLAUSE 51 — NO SET-OFF OR TAX DEDUCTION

 

51.1

All payments of Charterhire, the Advance Charterhire, the Deposit, the Purchase Obligation Price or the Purchase Option Price and any other payment made by the Charterers under a Leasing Document shall be paid punctually:

 

(a)

without any form of set-off (other than the Advance Charterhire and the Deposit which shall be set-off pursuant to Clause 36.2 or, as the case may be, Clause 48.1), cross-claim or condition and in the case of Charterhire, the Advance Charterhire or the Deposit, without previous demand unless otherwise agreed with the Owners; and

 

(b)

free and clear of any tax deduction or withholding unless required by law.

 

51.2

Without prejudice to Clause 51.1, if the Charterers are required by law to make a tax deduction from any payment:

 

(a)

the Owners shall notify the Charterers as soon as they become aware of the requirement; and

 

(b)

the amount due in respect of the payment shall be increased by the amount necessary to ensure that the Owners receive and retain (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which they would otherwise have received.

 

51.3

In this Clause “tax deduction” means any deduction or withholding for or on account of any present or future tax, other than a FATCA Deduction.

CLAUSE 52 — INCREASED COSTS

 

52.1

This Clause 52 applies if the Owners notify the Charterers that they consider that as a result of:

 

(a)

the introduction or alteration after the date of this Charter of a law or an alteration after the date of this Charter in the manner in which a law is interpreted or applied (disregarding any effect which relates to the application to payments under this Charter of a tax on the Owners’ overall net income); or

 

(b)

complying with any regulation (including any which relates to capital adequacy or liquidity controls or which affects the manner in which the Owners allocates capital resources to their obligations under this Charter) which is introduced, or altered, or the interpretation or application of which is altered, after the date of this Charter,

the Owners (or a parent company of them) has incurred or will incur an increased cost.

 

52.2

In this Clause 52, “increased cost” means, in relation to the Owners:

 

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(a)

an additional or increased cost incurred as a result of, or in connection with, the Owners having entered into, or being a party to, this Charter, of funding the acquisition of the Vessel pursuant to the MOA or performing their obligations under this Charter;

 

(b)

a reduction in the amount of any payment to the Owners under this Charter or in the effective return which such a payment represents to the Owners on their capital;

 

(c)

an additional or increased cost of funding the acquisition of the Vessel pursuant to the MOA; or

 

(d)

a liability to make a payment, or a return foregone, which is calculated by reference to any amounts received or receivable by the Owners under this Charter,

 

(e)

and for the purposes of this Clause 52.2 the Owners may in good faith allocate or spread costs and/or losses among their assets and liabilities (or any class of their assets and liabilities) on such basis as they consider appropriate.

 

52.3

Subject to the terms of Clause 52.1, the Charterers shall pay to the Owners, on the Owners’ demand, the amounts which the Owners from time to time notify the Charterers to be necessary to compensate the Owners for the increased cost.

CLAUSE 53 — CONFIDENTIALITY

 

53.1

The Parties agree to keep the terms and conditions of this Charter and any other Leasing Documents (the “Confidential Information”) strictly confidential, provided that a Party may disclose Confidential Information in the following cases:

 

(a)

it is already known to the public or becomes available to the public other than through the act or omission of the disclosing Party;

 

(b)

it is required to be disclosed under the applicable laws of any Relevant Jurisdiction, by a governmental order, decree, regulation or rule, by an order of a court, tribunal or listing exchange of the Relevant Jurisdiction (including but not limited to an order by the US Securities and Exchange Commission or the New York Stock Exchange), provided that the disclosing Party shall give written notice of such required disclosure to the other Party prior to the disclosure;

 

(c)

in filings with a court or arbitral body in proceedings in which the Confidential Information is relevant and in discovery arising out of such proceedings;

 

(d)

to (or through) whom a Party assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Leasing Document (as permitted by the terms thereof), provided that such person receiving Confidential Information shall undertake that it would not disclose Confidential Information to any other party save for circumstances arising which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties;

 

(e)

to any of the following persons on a need to know basis:

 

  (i)

a shareholder or an Affiliate of either Party or a party referred to in either paragraph (d) or (e) (including the employees, officers and directors thereof);

 

  (ii)

professional advisers retained by a disclosing party; or

 

  (iii)

persons advising on, providing or considering the provision of financing to the disclosing party or an Affiliate,

 

34


provided that the disclosing party shall exercise due diligence to ensure that no such person shall disclose Confidential Information to any other party save for circumstances arising which are similar to those described under this Clause or such other circumstances as may be permitted by all Parties; or

 

(f)

with the prior written consent of all Parties.

CLAUSE 54 — PARTIAL INVALIDITY

If, at any time, any provision of a Leasing Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

CLAUSE 55 — SETTLEMENT OR DISCHARGE CONDITIONAL

 

55.1

Any settlement or discharge under any Leasing Document between the Owners and any Relevant Person or any other person shall be conditional upon no security or payment to the Owners by any Relevant Person or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.

 

55.2

If the Owners consider that an amount paid or discharged by, or on behalf of, a Relevant Person in purported payment or discharge of an obligation of that Relevant Person to the Owners under the Leasing Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Relevant Person or otherwise, then that amount shall not be considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Leasing Documents.

CLAUSE 56 — CHANGES TO THE PARTIES

 

56.1

Assignment or transfer by the Charterers

The Charterers shall not assign their rights or transfer by novation any of their rights and obligations under the Leasing Documents except with the prior consent in writing of the Owners (such consent not to be unreasonably withheld if such assignment or transfer is to an Affiliate of the Charterers).

56.2 Transfer by the Owners

 

(a)

The Owners may change the registered ownership of the Vessel and/or transfer by assignment or novation (or otherwise) any of its rights and obligations under the Leasing Documents at any time to an affiliate or another lessor or financial institution or trust, fund, leasing company or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets or to any other party at any time.

 

(b)

Any such change in the registered ownership of the Vessel and/or transfer by novation shall be notified by the Owners to the Charterers in advance but shall not require the Charterers’ prior approval provided that notwithstanding such change, this Charter would continue on identical terms (save for logical, consequential or mutually agreed amendments), and the Charterers hereby agree that they shall be liable to the aforesaid new owner of the Vessel for its performance of all obligations pursuant to this Charter after change of the registered ownership of the Vessel from the Owners to such new owner and shall procure that the Guarantor shall execute a guarantee in favour of the new owners for the inter alia, obligations of the Charterers under this Charter, in substantially in the same form as the Guarantee (or such other form as the Guarantor and the new owners may agree).

 

35


56.3

The Charterers agree and undertake to enter into any such usual documents as the Owners shall require to complete or perfect the assignment, novation or transfer of the Vessel (with the benefit and burden of this Charter) pursuant to Clause 56.2, at no cost to the Charterers.

CLAUSE 57 — MISCELLANEOUS

 

57.1

The Charterers waive any rights of sovereign immunity which they or any of their assets may enjoy in any jurisdiction and subjects itself to civil and commercial law with respect to their obligations under this Charter.

 

57.2

No term of this Charter is enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not party to this Charter, save that the Other Owners may rely on the rights conferred on them under Clause 50.5.

 

57.3

This Charter and each Leasing Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Charter or that Leasing Document, as the case may be.

 

57.4

These additional clauses shall be read together with the BARECON 2001, and shall constitute a single instrument. In the case of any conflict between the provisions of these additional terms and the BARECON 2001, these additional terms shall prevail.

CLAUSE 58 —FATCA

 

58.1

Defined terms. For the purposes of this Clause 58, the following terms shall have the following meanings:

“Code” means the United States Internal Revenue Code of 1986, as amended.

“FATCA” means:

 

  (a)

sections 1471 to 1474 of the Code or any associated regulations or other official guidance;

 

  (b)

any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or

 

  (c)

any agreement pursuant to the implementation of paragraphs (a) or (b) above with the IRS, the US government or any governmental or taxation authority in any other jurisdiction.

“FATCA Deduction” means a deduction or withholding from a payment under this Charter or the Leasing Documents required by or under FATCA.

“FATCA Exempt Party” means a Relevant Party that is entitled under FATCA to receive payments free from any FATCA Deduction.

“FATCA FFI” means a foreign financial institution as defined in section 1471(d)(4) of the Code which, if a Relevant Party is not a FATCA Exempt Party, could be required to make a FATCA Deduction.

“FATCA Non-Exempt Party” means any Relevant Party who is not a FATCA Exempt Party.

“IRS” means the United States Internal Revenue Service or any successor taxing authority or agency of the United States government.

 

36


“Relevant Party” means any party to a Leasing Document.

58.2 FATCA Information.

 

(a)

Subject to paragraph (c) below, each Relevant Party shall, on the date of this Charter, and thereafter within ten (10) Business Days of a reasonable request by another Relevant Party:

 

  (i)

confirm to that other party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and

 

  (ii)

supply to the requesting party (with a copy to all other Relevant Parties) such other form or forms (including IRS Form W-8 or Form W-9 or any successor or substitute form, as applicable) and any other documentation and other information relating to its status under FATCA (including its applicable “pass thru percentage” or other information required under FATCA or other official guidance including intergovernmental agreements) as the requesting party reasonably requests for the purpose of the requesting party’s compliance with FATCA .

 

(b)

If a Relevant Party confirms to any other Relevant Party that it is a FATCA Exempt Party or provides an IRS Form W-8 or W-9 showing that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall so notify all other Relevant Parties reasonably promptly.

 

(c)

Nothing in this clause shall oblige any Relevant Party to do anything which would or, in its reasonable opinion, might constitute a breach of any law or regulation, any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including, without limitation, its tax returns and calculations); provided, however, that nothing in this paragraph shall excuse any Relevant Party from providing a true, complete and correct IRS Form W-8 or W-9 (or any successor or substitute form where applicable). Any information provided on such IRS Form W-8 or W-9 (or any successor or substitute forms) shall not be treated as confidential information of such party for purposes of this paragraph.

 

(d)

If a Relevant Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with the provisions of this Charter or the provided information is insufficient under FATCA, then:

 

  (i)

if that party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such party shall be treated for the purposes of this Charter and the Leasing Documents as if it is a FATCA Non-Exempt Party; and

 

  (ii)

if that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of this Charter and the Leasing Documents (and payments made thereunder) as if its applicable passthru percentage is 100%,

until (in each case) such time as the party in question provides sufficient confirmation, forms, documentation or other information to establish the relevant facts.

58.3 FATCA Deduction and gross-up by Relevant Party

 

(a)

If the representation made by the Charterers under Clause 45.1(q) proves to be untrue or misleading such that the Charterers are required to make a FATCA Deduction, the Charterers shall make the FATCA Deduction and any payment required in connection with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA.

 

(b)

If the Charterers are required to make a FATCA Deduction then the Charterers shall increase the payment due from them to the Owners to an amount which (after making any FATCA Deduction) leaves an amount equal to the payment which would have been due if no FATCA Deduction had been required.

 

37


(c)

The Charterers shall promptly upon becoming aware that they must make a FATCA Deduction (or that there is any change in the rate or basis of a FATCA Deduction) notify the Owners accordingly. Within thirty (30) days of the Charterers making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Charterers shall deliver to the Owners evidence reasonably satisfactory to the Owners that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.

58.4 FATCA Deduction by Owners

The Owners may make any FATCA Deduction they are required by FATCA to make, and any payment required in connection with that FATCA Deduction, and the Owners shall not be required to increase any payment in respect of which they make such a FATCA Deduction or otherwise compensate the recipient for that FATCA Deduction.

58.5 FATCA Mitigation

Notwithstanding any other provision to this Charter, if a FATCA Deduction is or will be required to be made by any party under Clause 58.3 in respect of a payment to the Owners as a result of the Owners not being a FATCA Exempt Party, the Owners shall have the right to transfer their interest in the Vessel (and this Charter) to any person nominated by the Owners and all costs in relation to such transfer shall be for the account of the Charterers.

CLAUSE 59—DEFINITIONS

 

59.1

In this Charter the following terms shall have the meanings ascribed to them below:

“Acceptance Certificate” means a certificate substantially in the form set out in Schedule I (Acceptance Certificate) to be signed by the Charterers at Delivery.

“Account Bank” means Hamburg Commercial Bank AG acting through its office at Gerhart-Hauptmann-Platz 50, 20095 Hamburg, Germany.

“Account Security” means the document creating security over the Earnings Account executed by the Charterers in favour of the Owners, in the agreed form.

“Advance Charterhire” means the amount equal to the Purchase Price less the Finance Amount.

“Affiliate” means in relation to any person, a subsidiary of that person or a Holding Company of that person or any other subsidiary of that Holding Company.

“Anti-Money Laundering Laws” means all applicable financial record-keeping and reporting requirements, anti-money laundering statutes (including all applicable rules and regulations thereunder) and all applicable related or similar laws, rules, regulations or guidelines, of all jurisdictions including and without limitation, the United States of America, the European Union and the People’s Republic of China and which in each case are (a) issued, administered or enforced by any governmental agency having jurisdiction over any Relevant Person or the Owners; (b) of any jurisdiction in which any Relevant Person or the Owners conduct business; or (c) to which any Relevant Person or the Owners is subjected or subject to.

“Anti-Terrorism Financing Laws” means all applicable anti-terrorism laws, rules, regulations or guidelines of any jurisdiction, including and not limited to the United States of America or the People’s Republic of China which are: (a) issued, administered or enforced by any governmental agency, having jurisdiction over any Relevant Person or the Owners; (b) of any jurisdiction in which any Relevant Person or the Owners conduct business; or (c) to which any Relevant Person or the Owners are subjected or subject to.

 

38


“Approved Manager” means Navios Tankers Management Inc. a corporation incorporated under the laws of the Republic of the Marshall Islands having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960, any other Affiliate of the Guarantor engaged in providing shipmanagement services, or any other entity engaged in providing shipmanagement services which is otherwise owned by or on behalf of Angeliki Frangou, or any other ship management company approved in writing by the Owners.

“Approved Sub-charter” means any charter or employment of the Vessel exceeding twelve (12) months (taking into account any optional extension period) which has been approved in writing by the Owners.

“Approved Sub-charterer” means any sub-charterer (approved by the Owners in writing) under any Approved Sub-charter.

“Approved Valuer” means Arrow, Fearnleys, Clarksons, Platou, Maersk Brokers, Simpson Spence Young, Howe Robinson, Breamar or any other independent and reputable shipbroker nominated by the Charterers and approved by the Owners.

“Associated Charters” means each bareboat charterparty entered into between each relevant Associated Owner and each relevant Associated Charterer in respect of any of the Associated Vessels.

“Associated Charterer” means each of Thasos Shipping Corporation, Serifos Shipping Corporation, Syros Shipping Corporation, Skiathos Shipping Corporation, Sifnos Shipping Corporation, Folegandros Shipping Corporation, Kithira Shipping Corporation and Antipsara Shipping Corporation (and “Associated Charterers” mean all of them).

“Associated Owner” means each of Great Thasos Limited, Great Serifos Limited, Great Syros Limited, Great Skiathos Limited, Great Sifnos Limited, Great Folegandros Limited, Great Kithira Limited and Great Antipsara Limited (and “Associated Owners” means all of them).

“Associated Vessel” means each of m.v.s “Nave Equinox”, “Nave Alderamin”, “Nave Capella”, “Nave Titan”, “Nave Andromeda”, “Nave Estella”, “Nave Orbit” and “Nave Velocity” (and “Associated Vessels” means all of them).

“Balloon Charterhire Amount” means an amount equal to the lower of (i) 30% of the Estimated Value; and (ii) 30% of the Initial Market Value as may be reduced by a prepayment made in accordance with Clause 46.1(t).

“Breakfunding Costs” means all breakfunding costs and expenses incurred or payable by the Owners when a repayment or prepayment under the relevant funding arrangement entered into by the Owners for the purpose of financing the Purchase Price does not fall on a Payment Date.

“Business Day” means a day on which banks are open for business in the principal business centres of Beijing and Athens and in respect of a day on which a payment is required to be made or other dealing is due to take place under a Leasing Document in Dollars, also a day on which commercial banks are open in New York City and in respect of a day on which LIBOR is to be determined, also a day on which commercial banks are open in London.

“Business Ethics Law” means any laws, regulations and/or other legally binding requirements or determinations in relation to corruption, fraud, collusion, bid-rigging or anti-trust, human rights violations (including forced labour and human trafficking) which are applicable to any Relevant Person or the Owners or to any jurisdiction where activities are performed and which shall include but not be limited to (i) the United Kingdom Bribery Act 2010 and (ii) the United States Foreign Corrupt Practices Act 1977 and all rules and regulations under each of (i) and (ii).

 

39


“Cancelling Date” has the meaning given to that term in the MOA.

“Charterhire” means each of, as the context may require, all of the quarterly instalments of hire payable hereunder comprising in each case:

 

  (a)

a component of Charterhire A; and

 

  (b)

a component of Charterhire B.

“Charterhire A” means in relation to each of the 1st to the 28th Payment Date, an amount equal to one twenty-eighth (1/28) of the difference between the Finance Amount and the Balloon Charterhire Amount on the date of this Charter, provided that:

 

  (a)

in relation to the 1st Payment Date, such payment shall be made together with any additional amount equivalent to the interest payable by the Charterers (in their capacity as sellers) to the Owners (in their capacity as buyers) under clause 19(c) of the MOA; and

 

  (b)

in relation to the 28th Payment Date, such payment shall be made together with an additional amount equivalent to the Balloon Charterhire Amount.

“Charterhire B” means in relation to a Payment Date, the interest component calculated at the applicable Interest Rate for the Term ending on that Payment Date on the Outstanding Principal Balance (as calculated on the Outstanding Principal Balance prior to payment of Charterhire A on such Payment Date).

“Charterhire Principal” means the aggregate amount of Charterhire A payable under this Charter.

“Charterhire Principal Balance” means the Charterhire Principal outstanding under this Charter from time to time, as may be reduced by payments or prepayments by the Charterers to the Owners of Charterhire A under this Charter.

“CISADA” means the United States Comprehensive Iran Sanctions, Accountability and Divestment Act of 2010 as it applies to non-US persons.

“Charter Period” means the period commencing on the Commencement Date and described in Clause 32.2 unless it is either terminated earlier pursuant to the terms of this Charter.

“Classification Society” means ABS or any classification society being a member of the International Association of Classification Societies which is approved by the Owners.

“Commencement Date” means the date on which Delivery takes place.

“Delivery” means the delivery of the legal and beneficial interest in the Vessel from the Owners to the Charterers pursuant to the terms of the MOA.

“Deposit” means an amount equal to 5% of the Finance Amount.

“Dollars” or “$” means the lawful currency for the time being of the United States of America.

 

40


“Earnings” means all moneys whatsoever which are now, or later become, payable (actually or contingently) and which arise out of the use or operation of the Vessel, including (but not limited to):

 

  (a)

all freight, hire and passage moneys, compensation payable in the event of requisition of the Vessel for hire, all moneys which are at any time payable under any Insurances in respect of loss of hire, remuneration for salvage and towage services, demurrage and detention moneys and damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of the Vessel; and

 

  (b)

if and whenever the Vessel is employed on terms whereby any moneys falling within paragraph (a) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to the Vessel;

“Earnings Account” means, an account in the name of the Charterers with Account Bank or such bank as the Owners may approve.

“Election” has the meaning stated in Clause 48.1.

“Environmental Claim” means:

 

  (a)

any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or which relates to any Environmental Law; or

 

  (b)

any claim by any other person which relates to an Environmental Incident,

and for this purpose, “claim” means a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.

“Environmental Incident” means:

 

  (a)

any release, emission, spill or discharge of Environmentally Sensitive Material whether within the Vessel or from the Vessel into any other vessel or into or upon the air, water, land or soils (including the seabed) or surface water; or

 

  (b)

any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water from a vessel other than the Vessel and which involves a collision between the Vessel and such other vessel or some other incident of navigation or operation, in either case, in connection with which the Vessel is actually or reasonably expected to be potentially liable to be arrested, attached, detained or injuncted and/or the Vessel and/or any Relevant Person and/or any operator or manager of the Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or

 

  (c)

any other incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, water, land or soils (including the seabed) or surface water otherwise than from the Vessel and in connection with which the Vessel is actually or reasonably expected to be potentially liable to be arrested and/or where any Relevant Person and/or any operator or manager of the Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action.

“Environmental Law” means any present or future law relating to pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.

 

41


“Environmentally Sensitive Material” means and includes all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.

“Estimated Value” means $25,200,000.

“Fee Letter” means any fee letter dated on or around the date hereof setting out the relevant fee(s) payable by the Charterers to the Owners under Clause 41.1.

“Finance Amount” means an amount equivalent to 78% of the Purchase Price.

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

 

  (a)

for principal, interest or any other sum payable in respect of any moneys borrowed or raised by the debtor;

 

  (b)

under any loan stock, bond, note or other security issued by the debtor;

 

  (c)

under any acceptance credit, guarantee or letter of credit facility made available to the debtor;

 

  (d)

under a lease, a deferred purchase consideration arrangement (other than deferred payments for assets or services obtained on normal commercial terms in the ordinary course of business) or any other agreement having the commercial effect of a borrowing or raising of money by the debtor;

 

  (e)

under any foreign exchange transaction, any interest or currency swap or any other kind of derivative transaction entered into by the debtor or, if the agreement under which any such transaction is entered into requires netting of mutual liabilities, the liability of the debtor for the net amount; or

 

  (f)

under a guarantee, indemnity or similar obligation entered into by the debtor in respect of a liability of another person which would fall within paragraphs (a) to (e) if the references to the debtor referred to the other person.

“Financial Instruments” means the mortgage, deed of covenant, the general assignment or such other financial security instruments granted to the Owners’ financiers as security for the obligations of the Owners in relation to the financing of the acquisition of the Vessel.

“Flag State” means the Republic of Liberia or any other flag state approved by the Owners in writing.

“General Assignment” means the general assignment executed or to be executed between the Charterers and the Owners in respect of the Vessel, pursuant to which the Charterers shall, inter alia, assign their rights under the Insurances, Earnings and Requisition Compensation and each Approved Sub-charter in favour of the Owners and in the agreed form.

“Group” means the “Guarantor and each of the Guarantor’s subsidiaries from time to time.

“Guarantor” means Navios Maritime Acquisition Corporation, a corporation incorporated under the laws of the Republic of the Marshall Islands having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960.

 

42


“Guarantee” means a guarantee executed by the Guarantor in favour of the Owners dated on or around the date of this Charter.

“Holding Company” means, in relation to a person, any other person in relation to which it is a subsidiary.

“Initial Market Value” means, in relation to the Vessel, the arithmetic mean of two (2) valuations, each prepared by an Approved Valuer:

 

  (a)

on a date no earlier than thirty (30) days prior to the Commencement Date;

 

  (b)

without physical inspection of the Vessel;

 

  (c)

on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing and a willing buyer, free of any existing charter or other contract of employment; and

 

  (d)

after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale.

“Insurances” means:

 

  (a)

all policies and contracts of insurance, including entries of the Vessel in any protection and indemnity or war risks association, which are effected in respect of the Vessel or otherwise in relation to it whether before, on or after the date of this Charter; and

 

  (b)

all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Charter.

“Interest Rate” means, in relation to Charterhire B, the rate of interest determined in accordance with Schedule III.

“ISM Code” means the International Safety Management Code (including the guidelines on its implementation), adopted by the International Maritime Organisation Assembly as Resolutions A.741 (18) and A.788 (19), as the same may be amended or supplemented from time to time (and the terms “safety management system”, “Safety Management Certificate” and “Document of Compliance” have the same meanings as are given to them in the ISM Code).

“ISPS Code” means the International Ship and Port Security Code as adopted by the Conference of Contracting Governments to the Safety of Life at Sea Convention 1974 on 13 December 2002 and incorporated as Chapter XI-2 of the Safety of Life at Sea Convention 1974, as the same may be supplemented or amended from time to time.

“Leasing Documents” means this Charter, the MOA, the Fee Letter, the Security Documents, and the Trust Deed.

“LIBOR” means, in relation to a Term:

 

  (a)

the applicable Screen Rate as of the Specified Time for dollars and for a period equal in length to three (3) months; or

 

  (b)

as otherwise determined pursuant to Schedule III (Interest Rate), and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

 

43


“Major Casualty” means any casualty to the Vessel in respect of which the claim or the aggregate of the claims against all insurers, before adjustment for any relevant franchise or deductible, exceeds $1,000,000 (or its equivalent in any other currency).

“Manager’s Undertaking” means, in relation to an Approved Manager, the letter of undertaking from the Approved Manager, inter alia, subordinating the rights of such Approved Manager against the Vessel and the Charterers to the rights of the Owners and their financiers (if any) in an agreed form.

“Margin” means 3.90% per annum.

“Market Value” means, in relation to the Vessel at any relevant time, the arithmetic mean of two (2) valuations, each prepared by an Approved Valuer (one selected by the Owners and one selected by the Charterers (but both at the cost of the Charterers)):

 

  (a)

on a date no earlier than thirty (30) days previously;

 

  (b)

without physical inspection of the Vessel;

 

  (c)

on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing and a willing buyer, free of any existing charter or other contract of employment; and

 

  (d)

after deducting the estimated amount of the usual and reasonable expenses which would be incurred in connection with the sale,

provided that, for the purposes set out in Clause 40.3(b)(ii)(B), if the difference in the two (2) valuations obtained as foresaid is more than ten per cent. (10%) of the lower valuation obtained, a third Approved Valuer shall be elected and appointed by the Owners and the Market Value shall be the arithmetic mean of such three (3) valuations and shall be binding to the Owners and the Charterers.

“MARPOL Protocol” means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as amended in 1978 and 1997).

“Material Adverse Effect” means, in the opinion of the Owners, a material adverse effect on:

 

  (a)

the business, operations, property, condition (financial or otherwise) or prospects of the Charterers, the Shareholder, the Guarantor or the Group taken as a whole; or

 

  (b)

the ability of any Relevant Person to perform its obligations under any Leasing Document to which it is a party; or

 

  (c)

the validity or enforceability of, or the effectiveness or ranking of any Security Interests granted pursuant to any of the Leasing Documents or the rights or remedies of the Owners under any of the Leasing Documents.

“Minimum Amount” has the meaning given to that term under Clause 46.1 (t).

“MOA” means the memorandum of agreement entered into by the Charterers as sellers and the Owners as buyers dated on the date of this Charter in relation to the sale and purchase of the Vessel.

“Mortgagee” has the meaning given to that term in Clause 35.2.

 

44


“Non-Subsidiary Manager” means an Approved Manager which is not a subsidiary of the Guarantor and not owned by Angeliki Frangou.

“OFAC” means the U.S. Department of Treasury’s Office of Foreign Assets Control.

“Original Financial Statements” means the Guarantor’s audited financial statements for the financial year ended 31 December 2019 and its unaudited consolidated management accounts for the financial year ended 31 December 2019.

“Original Jurisdiction” means, in relation to any Relevant Person, the jurisdiction under whose laws they are respectively incorporated as at the date of this Charter.

“Other Charters” means each bareboat charterparty entered into between each relevant Other Owner and each relevant Other Charterer in respect of any of the Other Vessels.

“Other Charterer” means each of Crete Shipping Corporation, Rhea Shipping Corporation and Skyros Shipping Corporation (and “Other Charterers” mean all of them).

“Other Owner” means each of Great Crete Limited, Great Rhea Limited and Great Skyros Limited (and “Other Owners” means all of them).

“Other Vessel” means each of m.v.s “Nave Cetus”, “Perseus N” and “Nave Sextans” (and “Other Vessels” means all of them).

“Outstanding Principal Balance” means the aggregate of:

 

  (a)

the Charterhire Principal Balance; and

 

  (b)

the Purchase Obligation Price.

“Party” means either party to this Charter.

“Payment Date” means each of the twenty-eight (28) dates upon which Charterhire is to be paid by the Charterers to the Owners pursuant to Clause 36.

“Permitted Security Interests” means:

 

  (a)

Security Interests created by a Leasing Document or a Financial Instrument;

 

  (b)

liens for unpaid master’s and crew’s wages in accordance with the ordinary course of operation of the Vessel or in accordance with usual reputable maritime practice;

 

  (c)

liens for salvage;

 

  (d)

liens for master’s disbursements incurred in the ordinary course of trading;

 

  (e)

any other liens arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of the Vessel provided such liens do not secure amounts more than 30 days overdue;

 

  (f)

any Security Interest created in favour of a plaintiff or defendant in any action of the court or tribunal before whom such action is brought as security for costs and expenses where the Owners are prosecuting or defending such action in good faith by appropriate steps; and

 

  (g)

Security Interests arising by operation of law in respect of taxes which are not overdue or for payment of taxes which are overdue for payment but which are being contested by the Owners or the Charterers in good faith by appropriate steps and in respect of which adequate reserves have been made.

 

45


“Potential Termination Event” means, an event or circumstance which, with the giving of any notice, the lapse of time, a determination of the Owners and/or the satisfaction of any other condition, would constitute a Termination Event.

“Purchase Obligation” means the purchase obligation referred to in Clause 48.1.

“Purchase Obligation Date” means the last day of the natural expiration of the Charter Period.

“Purchase Obligation Price” means an amount equal to $100.

“Purchase Price” means the lower of:

 

  (a)

the Estimated Value; and

 

  (b)

the Initial Market Value.

 

  “Purchase

Option” means the early purchase option which the Charterers are entitled to exercise pursuant to Clause 47.

 

  “Purchase

Option Date” has the meaning given to that term in Clause 47.1.

 

  “Purchase

Option Notice” has the meaning given to that term in Clause 47.1.

 

  “Purchase

Option Price” means the aggregate of:

 

  (a)

the Outstanding Principal Balance as at the Purchase Option Date together with a fee calculated at the rate of (i) 2% of such Outstanding Principal Balance if the Purchase Option is exercised before the fourth anniversary of the Commencement Date, (ii) 1% of such Outstanding Principal Balance if the Purchase Option is exercised before the sixth anniversary of the Commencement Date and (iii) zero per cent. (0%) if the Purchase Option is exercised any time thereafter;

 

  (b)

any accrued but unpaid Charterhire B accrued, as at the Purchase Option Date;

 

  (c)

any Breakfunding Costs;

 

  (d)

any legal costs incurred by the Owners in connection with the exercise of the Purchase Option under Clause 47; and

 

  (e)

all other amounts payable under this Charter and the other Leasing Documents together with any applicable interest thereon,

less an amount equal to the Deposit.

“Quotation Day” means in relation to any period for which an Interest Rate is to be determined, two (2) Business Days before the first day of that period.

“Relevant Interbank Market” means the London interbank market.

“Relevant Nominating Body” means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.

 

46


“Relevant Person” means the Charterers, the Other Charterers, the Guarantor, the Shareholder, a Non-Subsidiary Manager and such other party providing security to the Owners for the Charterers’ obligations under this Charter pursuant to a Security Document or otherwise.

“Relevant Jurisdiction” means, in relation to any Relevant Person:

 

  (a)

its Original Jurisdiction;

 

  (b)

any jurisdiction where any property owned by it and charged under a Leasing Document is situated;

 

  (c)

any jurisdiction where it conducts its business; and

 

  (d)

any jurisdiction whose laws govern the perfection of any of the Leasing Documents entered into by it creating a Security Interest.

“Replacement Benchmark” means a benchmark rate which is:

 

  (a)

formally designated, nominated or recommended as the replacement for a Screen Rate by:

 

  (i)

the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

 

  (ii)

any Relevant Nominating Body,

and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the “Replacement Benchmark” will be the replacement under paragraph (ii) above;

 

  (b)

in the opinion of the Owners, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or

 

  (c)

in the opinion of the Owners, an appropriate successor to a Screen Rate.

“Requisition Compensation” includes all compensation or other moneys payable by reason of any act or event such as is referred to in paragraph (b) of the definition of “Total Loss”.

“Restricted Countries” means those countries and territories subject to country-wide or territory-wide Sanctions and/or trade embargoes, and those countries whose government is the target of Sanctions in particular but not limited to those of OFAC, including at the date of this Charter, but without limitation, Cuba, Iran, North Korea, Crimea, Venezuela and Syria and any additional countries based on respective country-wide or territory-wide Sanctions being imposed by OFAC or any of the regulative bodies referred to in the definition of Restricted Persons.

“Restricted Person” means a person, entity or any other parties (i) located, domiciled, resident or incorporated in Restricted Countries, and/or (ii) subject to any sanction administrated by the United Nations, the European Union, Switzerland, the United States, OFAC, the United Nations, the United Kingdom, Her Majesty’s Treasury and the Foreign and Commonwealth Office of the United Kingdom, the People’s Republic of China and/or (iii) owned or controlled by or affiliated with persons, entities or any other parties as referred to in (i) and (ii).

“Sanctions” means any sanctions, embargoes, freezing provisions, prohibitions or other restrictions relating to trading, doing business, investment, exporting, financing or making assets available (or other activities similar to or connected with any of the foregoing) imposed by law or regulation of the United Kingdom, the United States of America (including, without limitation, CISADA and OFAC), the People’s Republic of China or the Council of the European Union.

 

47


“Sanctions Advisory” means the Sanctions Advisory forthe Maritime Industry, Energy and Metals Sectors, and Related Communities issued May 14, 2020 by the US Department of the Treasury, Department of State and Coast Guard, as may be amended or supplemented, and any similar future advisory.

“Screen Rate” means the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for dollars for the relevant period displayed on page LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters. If such page or service ceases to be available, the Owners may specify another page or service displaying the relevant rate.

“Screen Rate Contingency Period” means twenty (20) days.

“Screen Rate Replacement Event” means, in relation to a Screen Rate:

 

  (a)

the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Owners, materially changed;

( )

(i)

 

  (A)

the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

 

  (B)

information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which reasonably confirms that the administrator of that Screen Rate is insolvent,

provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (ii)

the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;

 

  (iii)

the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or

 

  (iv)

the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or

 

48


  (c)

the administrator of that Screen Rate determines that that Screen Rate should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:

 

  (i)

the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Owners) temporary; or

 

  (ii)

that Screen Rate is calculated in accordance with any such policy or arrangement for a period no less than the Screen Rate Contingency Period; or

 

  (d)

in the opinion of the Owners, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Charter.

“Secured Liabilities” means all liabilities which:

 

  (a)

the Charterer has, at the date of this Charter or at any later time or times, to the Owners under or in connection with the Leasing Documents or any judgment relating to the Leasing Documents; and

 

  (b)

each Other Charterer has, at the date of this Charter or at any later time or times, to the relevant Other Owner under or in connection with the Leasing Documents (as defined under the relevant Other Charter) or any judgment relating to the Leasing Documents (as defined under the relevant Other Charter),

and for this purpose, there shall be disregarded any total or partial discharge of these liabilities, or variation of their terms, which is effected by, or in connection with, any bankruptcy, liquidation, arrangement or other procedure under the insolvency laws of any country.

“Security Documents” means the Guarantee, the Account Security, the General Assignment, the Shares Pledge, the Manager’s Undertaking and any other security documents granted as security for the obligations of the Charterers under or in connection with this Charter.

“Security Interest” means:

 

  (a)

a mortgage, charge (whether fixed or floating) or pledge, any maritime or other lien or any other security interest of any kind;

 

  (b)

the security rights of a plaintiff under an action in rem; or

 

  (c)

any other right which confers on a creditor or potential creditor a right or privilege to receive the amount actually or contingently due to it ahead of the general unsecured creditors of the debtor concerned; however this paragraph (c) does not apply to a right of set off or combination of accounts conferred by the standard terms of business of a bank or financial institution.

“Shareholder” means Aegean Sea Maritime Holdings Inc., a corporation incorporated and existing under the laws of the Republic of the Marshall Islands having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960.

“Shares Pledge” means the shares pledge over the shares in the Charterers to be executed by the Shareholder in favour of the Owners on or around the date of this Charter.

“Specified Time” means 11.00am London time on the Quotation Day.

 

49


“Term” means, in relation to the definition of “Charterhire B”, a period of three (3) month’s duration, provided that:

 

  (a)

the first Term shall commence on the Commencement Date;

 

  (b)

each subsequent Term shall commence on the last day of the preceding Term;

 

  (c)

any Term which would otherwise end on a non-Business Day shall instead end on the next following Business Day or, if that Business Day is in another calendar month, on the immediately preceding Business Day;

 

  (d)

if any Term commences on the last Business Day of a calendar month or on a day for which there is no numerically corresponding day in the calendar month falling three (3) months thereafter, as the case may be, that Term shall, subject to paragraphs (c),

( )         and (f), end on the last Business Day of such later calendar month;

 

  (e)

any Term which would otherwise overrun a Payment Date shall instead end on that Payment Date; and

 

  (e)

any Term which would otherwise extend beyond the Charter Period shall instead end on the last day of the Charter Period.

“Termination Date” has the meaning given to that term in Clause 44.2.

“Termination Event” means any event described in Clause 44.

“Termination Purchase Price” means, in respect of any date (for the purposes of this definition only, the “Relevant Date”), the aggregate of:

 

  (a)

the Outstanding Principal Balance as at the Relevant Date together with a fee calculated at the rate of 2% of such Outstanding Principal Balance;

 

  (b)

any accrued but unpaid Charterhire B, as at the Relevant Date;

 

  (c)

any Breakfunding Costs;

 

  (d)

any costs incurred and expenses incurred by the Owners (and their financiers (if any)) in locating, repossessing or recovering the Vessel or collecting any payments due under this Charter or in obtaining the due performance of the obligations of the Charterers under this Charter or the other Leasing Documents and any default interest in relation thereto;

 

  (e)

any legal costs incurred by the Owners in connection with the termination of this Charter under Clause 44 or 44A;

 

  (f)

all other outstanding amounts payable under this Charter (including but not limited to default interest) together with any applicable interest thereon.

“Total Loss” means:

 

  (a)

actual, constructive, compromised, agreed or arranged total loss of the Vessel;

 

  (b)

any expropriation, confiscation, requisition or acquisition of the Vessel, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority; or

 

50


  (c)

any arrest, capture, seizure or detention of the Vessel (including any hijacking or theft but excluding any event specified in paragraph (b) of this definition) unless it is redelivered within thirty (30) days to the full control of the Owners or the Charterers.

“Trust Deed” means a trust deed executed or to be executed between, amongst others, the Owners, the Other Owners, the Charterers, the Other Charterers, the Guarantor and the Approved Manager which, inter alia, sets out the obligations of the Owners in respect of holding on trust all moneys or other assets received or recovered by or on behalf of the Owners and the Other Owners by virtue of any Security Interest or other rights granted to the Owners under or by virtue of the Security Documents.

“US Tax Obligor” means (a) a person which is resident for tax purposes in the United States of America or (b) a person some or all of whose payments under the Leasing Documents are from sources within the United States for United States federal income tax purposes.

“Vessel” means the LR1 tanker named m.v. “NAVE CASSIOPEIA” with IMO No. 9589932 and which is to be registered under the name of the Owners under the flag of the Republic of Liberia upon Delivery.

 

59.2

In this Charter:

“Approved Manager”, “Approved Sub-charterer”, “Charterers”, “Other Charterers”, “Other Owners”, “Owners”, “Relevant Person”, “Shareholder” or any other person shall be construed so as to include its successors in title, permitted assigns and permitted transferees to, or of, its rights and/or obligations under the Leasing Documents;

“agreed form” means, in relation to a document, such document in a form agreed in writing by the Owners;

“asset” includes every kind of property, asset, interest or right, including any present, future or contingent right to any revenues or other payment;

“company” includes any partnership, joint venture and unincorporated association;

“consent” includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration, notarisation and legalisation;

“contingent liability” means a liability which is not certain to arise and/or the amount of which remains unascertained;

“continuing” means, in relation to any Termination Event, a Termination Event which has not been waived by the Owners in writing and in relation to any Potential Termination Event, a Potential Termination Event which has not been waived by the Owners in writing;

“control” over a particular company means the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:

 

  (a)

cast, or control the casting of, more than 51 per cent, of the maximum number of votes that might be cast at a general meeting of such company; or

 

  (b)

appoint or remove all, or the majority, of the directors or other equivalent officers of such company; or

 

  (c)

give directions with respect to the operating and financial policies of such company with which the directors or other equivalent officers of such company are obliged to comply provided always that when “control” is used in relation to the Group or to a Relevant Person or to the “control” thereof, it shall exclude paragraphs (b) and (c) above;

 

51


“document” includes a deed; also a letter, fax or telex;

“expense” means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable value added or other tax;

“law” includes any order or decree, any form of delegated legislation, any treaty or international convention and any regulation or resolution of the Council of the European Union, the European Commission, the United Nations or its Security Council;

“legal or administrative action” means any legal proceeding or arbitration and any administrative or regulatory action or investigation;

“liability” includes every kind of debt or liability (present or future, certain or contingent), whether incurred as principal or surety or otherwise;

“months” shall be construed in accordance with Clause 59.3;

“person” includes any company; any state, political sub-division of a state and local or municipal authority; and any international organisation;

“policy”, in relation to any insurance, includes a slip, cover note, certificate of entry or other document evidencing the contract of insurance or its terms;

“protection and indemnity risks” means the usual risks covered by a protection and indemnity association which is a member of the International Group of P&I Clubs including pollution risks, freight, demurrage and defence cover, extended passenger cover and the proportion (if any) of any sums payable to any other person or persons in case of collision which are not recoverable under the hull and machinery policies by reason of the incorporation in them of clause 6 of the International Hull Clauses (1/11/02 or 1/11/03), clause 8 of the Institute Time Clauses (Hulls)(1/10/83) or clause 8 of the Institute Time Clauses (Hulls) (1/11/1995) or the Institute Amended Running Down Clause (1/10/71) or any equivalent provision;

“regulation” includes any regulation, rule, official directive, request or guideline whether or not having the force of law of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

“subsidiary” has the meaning given in Clause 59.4; and

“tax” includes any present or future tax, duty, impost, levy or charge of any kind which is imposed by any state, any political sub-division of a state or any local or municipal authority (including any such imposed in connection with exchange controls), and any connected penalty, interest or fine.

 

59.3

Meaning of “month”. A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:

 

  (a)

on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or

 

  (b)

on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day;

 

52


and “month” and “monthly” shall be construed accordingly.

 

59.4

Meaning of “subsidiary”. A company (S) is a subsidiary of another company (P) if a majority of the issued shares in S (or a majority of the issued shares in S which carry unlimited rights to capital and income distributions) are directly owned by P or are indirectly attributable to P.

A company (S) is a subsidiary of another company (U) if S is a subsidiary of P and P is in turn a subsidiary of U.

 

59.5

In this Charter:

 

  (a)

references to a Leasing Document or any other document being in the form of a particular appendix or to any document referred to in the recitals include references to that form with any modifications to that form which the Owners approve;

 

  (b)

references to, or to a provision of, a Leasing Document or any other document are references to it as amended or supplemented, whether before the date of this Charter or otherwise;

 

  (c)

references to, or to a provision of, any law include any amendment, extension, re-enactment or replacement, whether made before the date of this Charter or otherwise; and

 

  (d)

words denoting the singular number shall include the plural and vice versa.

 

59.6

Headings. In interpreting a Leasing Document or any provision of a Leasing Document, all clauses, sub-clauses and other headings in that and any other Leasing Document shall be entirely disregarded.

 

53


EXECUTION PAGE

 

OWNERS     
SIGNED   )   
By YANG GUANGYI   )   
as an attorney-in-fact   )   
for and on behalf of   )    /s/ YANG GUANGYI
GREAT RHODES LIMITED   )   
in the presence of:   )   
Witness’ signature: /s/ Zhengrong Chen   )   
Witness’ name: Zhengrong Chen   )   
Witness’ address: Shanghai, China   )   
CHARTERERS     
SIGNED   )   
By GEORGIOS PANAGAKIS   )   
as an attorney-in-fact   )   
for and on behalf of   )    /s/ GEORGIOS PANAGAKIS
RHODES SHIPPING CORPORATION   )   
in the presence of:   )   
Witness’ signature: /s/ Aikaterina Dimitriou   )   
Witness’ name: Aikaterina Dimitriou   )   
Witness’ address: Athens, Greece   )   

 

54


1

Dated: 12 June 2020

 

2

RHODES SHIPPING CORPORATION, a corporation incorporated and existing under the laws of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (Name of sellers), hereinafter called the “Sellers”, have agreed to sell, and

 

3

GREAT RHODES LIMITED, a corporation incorporated and existing under the laws of the Republic of the Marshall Islands having its registered office at Trust Company Complex, Ajeltake Island, Majuro, Marshall Islands MH96960 (Name of buyers), hereinafter called the “Buyers”, have agreed to buy:

 

4

Name of vessel: NAVE CASSIOPEIA

 

5

IMO Number: 9589932

 

6

Classification Society: American Bureau of Shipping

 

7

Class Notation: as per Classification Certificate

 

8

Year of Build: 2012 Builder/Yard: SUNGDONG S.B. & MARINE ENG’G CO., LTD.

 

9

Flag: Liberia Place of Registration: Liberia GT/NT: 42,341 / 22,064

 

10

hereinafter called the “Vessel”, on the following terms and conditions:

 

11

Definitions – see also Clause 31 (Definitions) 11

“Agreement” means this memorandum of agreement which shall for the avoidance of doubt, include the rider provisions from Clauses 19 (Payment of pPurchase pPrice) to 31 (Definitions).

 

12

“Banking Days” are days on which banks are open both in the country of the currency stipulated for

13

the Purchase Price in Clause 1 (Purchase Price) and in the place of closing stipulated in Clause 8

14

(Documentation) and (add additional jurisdictions as appropriate).

 

15

“Buyers’ Nominated Flag State” means Liberia (state flag state).

 

16

“Class” means the class notation referred to above.

 

17

“Classification Society” means the classification Ssociety referred to above Iin Line 6.

 

18

“Deposit” shall have the meaning given in Clause 2 (Deposit)

 

19

“Deposit Holder” means (state name and location of Deposit Holder) or, if left blank, the

20

Sellers’ Bank, which shall hold and release the Deposit in accordance with this Agreement.

 

21

“In writing” or “written” means a letter handed over from the Sellers to the Buyers or vice versa, a

22

registered letter, e-mail or telefax.

 

23

“Parties” means the Sellers and the Buyers.

 

24

“Purchase Price” means the price for the Vessel as stated in Clause 1 (Purchase Price).

 

25

“Sellers’ Account” means (state details of bank account) at the Sellers’ Bank.

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


26

“Sellers’ Bank” means (state name of bank, branch and details) or, if left blank, the bank

27

notified by the Sellers to the Buyers for receipt of the balance of the Purchase Price.

 

28 1.

Purchase Price - see Clause 19 (Payment of pPurchase pPrice)

 

29

See Clause 19The Purchase Price is (state currency and amount both in words and figures).

 

30 2.

Deposit

 

31

As security for the correct fulfilment of this Agreement the Buyers shall lodge a deposit of

32

% ( per cent) or, if left blank, 10% (ten per cent), of the Purchase Price (the

33

“Deposit”) in an interest bearing account for the Parties with the Deposit Holder within three (3)

34

Banking Days after the date that:

 

35

(i) this Agreement has been signed by the Parties and exchanged in original or by

36

e mail or telefax; and

 

37

(ii) the Deposit Holder has confirmed in writing to the Parties that the account has been

38

opened.

 

39

The Deposit shall be released in accordance with joint written instructions of the Parties.

40

Interest, if any, shall be credited to the Buyers. Any fee charged for holding and releasing the

41

Deposit shall be borne equally by the Parties. The Parties shall provide to the Deposit Holder

42

all necessary documentation to open and maintain the account without delay.

 

43 3.

Payment - see Clause 19 (Payment of pPurchase pPrice)

 

44

See Clause 19On delivery of the Vessel, but not later than three (3) Banking Days after the date that Notice of

45

Readiness has been given in accordance with Clause 5 (Time and place of delivery and

46

notices):

 

47

(i) the Deposit shall be released to the Sellers; and

 

48

(ii) the balance of the Purchase Price and all other sums payable on delivery by the Buyers

49

to the Sellers under this Agreement shall be paid in full free of bank charges to the

50

Sellers’ Account.

 

51 4.

Inspection

 

52

(a)* The Buyers have inspected and accepted the Vessel’s classification records. The Buyers

53

have also inspected the Vessel at/in (state place) on (state date) and have

54

accepted the Vessel following this inspection and the sale is outright and definite, subject only

55

to the terms and conditions of this Agreement.

56

(b)* The Buyers shall have the right to inspect the Vessel’s classification records and declare

57

whether same are accepted or not within (state date/period).

 

58

The Sellers shall make the Vessel available for inspection at/in (state place/range) within

59

(state date/period).

 

60

The Buyers shall undertake the inspection without undue delay to the Vessel. Should the

61

Buyers cause undue delay they shall compensate the Sellers for the losses thereby incurred.

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


62

The Buyers shall inspect the Vessel without opening up and without cost to the Sellers.

 

63

During the inspection, the Vessel’s deck and engine log books shall be made available for

64

examination by the Buyers.

 

65

The sale shall become outright and definite, subject only to the terms and conditions of this

66

Agreement, provided that the Sellers receive written notice of acceptance of the Vessel from

67

the Buyers within seventy two (72) hours after completion of such inspection or after the

68

date/last day of the period stated in Line 59, whichever is earlier.

 

69

Should the Buyers fail to undertake the inspection as scheduled and/or notice of acceptance of

70

the Vessel’s classification records and/or of the Vessel not be received by the Sellers as

71

aforesaid, the Deposit together with interest earned, if any, shall be released immediately to the

72

Buyers, whereafter this Agreement shall be null and void.

 

73

*4(a) and 4(b) are alternatives; delete whichever is not applicable. In the absence of deletions,

74

alternative 4(a) shall apply.

 

75 5.

Time and place of delivery and notices

 

76

(a) The Vessel shall be delivered and taken over in international waters or otherwise, safely afloat at a safe and accessible berth or

77

anchorage at any such place as the Buyers and the Sellers may agree/in (state place/range) in the Sellers’ option.

 

78

Notice of Readiness shall not be tendered before: (date)

 

79

Cancelling Date (see Clauses 5(c), 6 (a)(i), 6 (a) (iii) and 14):

 

80

(b) The Sellers shall keep the Buyers well informed of the Vessel’s itinerary and shall

81

provide the Buyers with twenty (20), ten (10), five (5) and three (3) days’ reasonable prior written notice of at least three (3) Business Days (or such shorter period as the Buyers may agree) of the date the

82

Sellers intend to tender Notice of Readiness and of the intended place of delivery.

 

83

When the Vessel is, on a day being a Business Day, at the place of delivery and physically ready for delivery in accordance with

84

this Agreement, the Sellers shall give the Buyers a written Notice of Readiness for delivery.

 

85

(c) If the Sellers anticipate that, notwithstanding the exercise of due diligence by them, the

86

Vessel will not be ready for delivery by the Cancelling Date they may notify the Buyers in writing

87

stating the date when they anticipate that the Vessel will be ready for delivery and proposing a

88

new Cancelling Date. Upon receipt of such notification the Buyers shall have the option of

89

either cancelling this Agreement in accordance with Clause 14 (Sellers’ Default) within three (3)

90

Banking Days of receipt of the notice or of accepting the new date as the new Cancelling Date.

91

If the Buyers have not declared their option within three (3) Banking Days of receipt of the

92

Sellers’ notification or if the Buyers accept the new date, the date proposed in the Sellers’

93

notification shall be deemed to be the new Cancelling Date and shall be substituted for the

94

Cancelling Date stipulated in line 79.

 

95

If this Agreement is maintained with the new Cancelling Date all other terms and conditions

96

hereof including those contained in Clauses 5(b) and 5(d) shall remain unaltered and in full

97

force and effect.

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


98

(d) Cancellation, failure to cancel or acceptance of the a new Cancelling Date shall be entirely

99

without prejudice to any claim for damages the Buyers may have under Clause 14 (Sellers’

100

Defaultdefault) for the Vessel not being ready by the original Cancelling Date.

 

101

(e) Should the Vessel become an actual, constructive or compromised t Total lLoss before delivery

102

the Deposit together with interest earned, if any, shall be released immediately to the Buyers

103

whereafter this Agreement shall be null and void terminate (provided that any provision hereof expressed to survive such termination shall do so in accordance with its terms).

 

104 6.

Divers Inspection / Drydocking

 

105

(a)*

106

(i) The Buyers shall have the option at their cost and expense to arrange for an underwater

107

inspection by a diver approved by the Classification Society prior to the delivery of the

108

Vessel. Such option shall be declared latest nine (9) days prior to the Vessel’s intended

109

date of readiness for delivery as notified by the Sellers pursuant to Clause 5(b) of this

110

Agreement. The Sellers shall at their cost and expense make the Vessel available for

111

such inspection. This inspection shall be carried out without undue delay and in the

112

presence of a Classification Society surveyor arranged for by the Sellers and paid for by

113

the Buyers. The Buyers’ representative(s) shall have the right to be present at the diver’s

114

inspection as observer(s) only without interfering with the work or decisions of the

115

Classification Society surveyor. The extent of the inspection and the conditions under

116

which it is performed shall be to the satisfaction of the Classification Society. If the

117

conditions at the place of delivery are unsuitable for such inspection, the Sellers shall at

118

their cost and expense make the Vessel available at a suitable alternative place near to

119

the delivery port, in which event the Cancelling Date shall be extended by the additional

120

time required for such positioning and the subsequent re positioning. The Sellers may

121

not tender Notice of Readiness prior to completion of the underwater inspection.

 

122

(ii) If the rudder, propeller, bottom or other underwater parts below the deepest load line are

123

found broken, damaged or defective so as to affect the Vessel’s class, then (1) unless

124

repairs can be carried out afloat to the satisfaction of the Classification Society, the

125

Sellers shall arrange for the Vessel to be drydocked at their expense for inspection by

126

the Classification Society of the Vessel’s underwater parts below the deepest load line,

127

the extent of the inspection being in accordance with the Classification Society’s rules (2)

128

such defects shall be made good by the Sellers at their cost and expense to the

129

satisfaction of the Classification Society without condition/recommendation** and (3) the

130

Sellers shall pay for the underwater inspection and the Classification Society’s

131

attendance.

 

132

Notwithstanding anything to the contrary in this Agreement, if the Classification Society

133

do not require the aforementioned defects to be rectified before the next class

134

drydocking survey, the Sellers shall be entitled to deliver the Vessel with these defects

135

against a deduction from the Purchase Price of the estimated direct cost (of labour and

136

materials) of carrying out the repairs to the satisfaction of the Classification Society,

137

whereafter the Buyers shall have no further rights whatsoever in respect of the defects

138

and/or repairs. The estimated direct cost of the repairs shall be the average of quotes

139

for the repair work obtained from two reputable independent shipyards at or in the

140

vicinity of the port of delivery, one to be obtained by each of the Parties within two (2)

141

Banking Days from the date of the imposition of the condition/recommendation, unless

142

the Parties agree otherwise. Should either of the Parties fail to obtain such a quote within

143

the stipulated time then the quote duly obtained by the other Party shall be the sole basis

144

for the estimate of the direct repair costs. The Sellers may not tender Notice of

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


145

Readiness prior to such estimate having been established.

 

146

(iii) If the Vessel is to be drydocked pursuant to Clause 6(a)(ii) and no suitable dry docking

147

facilities are available at the port of delivery, the Sellers shall take the Vessel to a port

148

where suitable drydocking facilities are available, whether within or outside the delivery

149

range as per Clause 5(a). Once drydocking has taken place the Sellers shall deliver the

150

Vessel at a port within the delivery range as per Clause 5(a) which shall, for the purpose

151

of this Clause, become the new port of delivery. In such event the Cancelling Date shall

152

be extended by the additional time required for the drydocking and extra steaming, but

153

limited to a maximum of fourteen (14) days.

 

154

(b)* The Sellers shall place the Vessel in drydock at the port of delivery for inspection by the

155

Classification Society of the Vessel’s underwater parts below the deepest load line, the extent

156

of the inspection being in accordance with the Classification Society’s rules. If the rudder,

157

propeller, bottom or other underwater parts below the deepest load line are found broken,

158

damaged or defective so as to affect the Vessel’s class, such defects shall be made good at the

159

Sellers’ cost and expense to the satisfaction of the Classification Society without

160

condition/recommendation**. In such event the Sellers are also to pay for the costs and

161

expenses in connection with putting the Vessel in and taking her out of drydock, including the

162

drydock dues and the Classification Society’s fees. The Sellers shall also pay for these costs

163

and expenses if parts of the tailshaft system are condemned or found defective or broken so as

164

to affect the Vessel’s class. In all other cases, the Buyers shall pay the aforesaid costs and

165

expenses, dues and fees.

 

166

(c) If the Vessel is drydocked pursuant to Clause 6 (a)(ii) or 6 (b) above:

 

167

(i) The Classification Society may require survey of the tailshaft system, the extent of the

168

survey being to the satisfaction of the Classification surveyor. If such survey is

169

not required by the Classification Society, the Buyers shall have the option to require the

170

tailshaft to be drawn and surveyed by the Classification Society, the extent of the survey

171

being in accordance with the Classification Society’s rules for tailshaft survey and

172

consistent with the current stage of the Vessel’s survey cycle. The Buyers shall declare

173

whether they require the tailshaft to be drawn and surveyed not later than by the

174

completion of the inspection by the Classification Society. The drawing and refitting of

175

the tailshaft shall be arranged by the Sellers. Should any parts of the tailshaft system be

176

condemned or found defective so as to affect the Vessel’s class, those parts shall be

177

renewed or made good at the Sellers’ cost and expense to the satisfaction of

178

Classification Society without condition/recommendation**.

 

179

(ii) The costs and expenses relating to the survey of the tailshaft system shall be borne by

180

the Buyers unless the Classification Society requires such survey to be carried out or if

181

parts of the system are condemned or found defective or broken so as to affect the

182

Vessel’s class, in which case the Sellers shall pay these costs and expenses.

 

183

(iii) The Buyers’ representative(s) shall have the right to be present in the drydock, as

184

observer(s) only without interfering with the work or decisions of the Classification

185

Society surveyor.

 

186

(iv) The Buyers shall have the right to have the underwater parts of the Vessel cleaned

187

and painted at their risk, cost and expense without interfering with the Sellers’ or the

188

Classification Society surveyor’s work, if any, and without affecting the Vessel’s timely

189

delivery. If, however, the Buyers’ work in drydock is still in progress when the

190

Sellers have completed the work which the Sellers are required to do, the additional

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


191

docking time needed to complete the Buyers’ work shall be for the Buyers’ risk, cost and

192

expense. In the event that the Buyers’ work requires such additional time, the Sellers

193

may upon completion of the Sellers’ work tender Notice of Readiness for delivery whilst

194

the Vessel is still in drydock and, notwithstanding Clause 5(a), the Buyers shall be

195

obliged to take delivery in accordance with Clause 3 (Payment), whether the Vessel is in

196

drydock or not.

 

197

*6 (a) and 6 (b) are alternatives; delete whichever is not applicable. In the absence of deletions,

198

alternative 6 (a) shall apply.

 

199

**Notes or memoranda, if any, in the surveyor’s report which are accepted by the Classification

200

Society without condition/recommendation are not to be taken into account.

 

201 7.

Spares, bunkers and other items

 

202

The Sellers shall deliver the Vessel to the Buyers with everything belonging to her on board

203

and on shore. All spare parts and spare equipment including spare tail-end shaft(s) and/or

204

spare propeller(s)/propeller blade(s), if any, belonging to the Vessel at the time of inspectiondelivery

205

used or unused, whether on board or not shall become the Buyers’ property, but spares on

206

order are excluded. Forwarding charges, if any, shall be for the Buyers’ account. The Sellers

207

are not required to replace spare parts including spare tail-end shaft(s) and spare

208

propeller(s)/propeller blade(s) which are taken out of spare and used as replacement prior to

209

delivery, but the replaced items shall be the property of the Buyers. Unused stores and

210

provisions shall be included in the sale and be taken over by the Buyers without extra payment.

 

211

Library and forms exclusively for use in the Sellers’ vessel(s) and captain’s, officers’ and crew’s

212

personal belongings including the slop chest are excluded from the sale without compensation,

213

as well as the following additional items: (include list)

 

214

Items on board which are on hire or owned by third parties, listed as follows, are excluded from

215

the sale without compensation: (include list)

 

216

Items on board at the time of inspection which are on hire or owned by third parties, not listed

217

above, shall be replaced or procured by the Sellers prior to delivery at their cost and expense.

218

The Buyers shall take over remaining bunkers and unused lubricating and hydraulic oils and

219

greases in storage tanks and unopened drums at not extra cost. and pay either:

 

220

(a) *the actual net price (excluding barging expenses) as evidenced by invoices or vouchers; or

 

221

(b) *the current net market price (excluding barging expenses) at the port and date of delivery

222

of the Vessel or, if unavailable, at the nearest bunkering port,

 

223

for the quantities taken over.

 

224

Payment under this Clause shall be made at the same time and place and in the same

225

currency as the Purchase Price.

 

226

“inspection” in this Clause 7, shall mean the Buyers’ inspection according to Clause 4(a) or 4(b)

227

(Inspection), if applicable. If the Vessel is taken over without inspection, the date of this

228

Agreement shall be the relevant date.

 

229

*(a) and (b) are alternatives, delete whichever is not applicable. In the absence of deletions

230

alternative (a) shall apply.

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


231 8.

Documentation

 

232

The place of closing: To be agreed between the Buyers and the Sellers.

 

233

(a) In exchange for pPayment of the Purchase Price shall be subject to the terms of Clauses 19 (Payment of pPurchase pPrice) and 20 (Further conditions precedent) and further conditional on the provision by the Sellers of the following the Sellers shall provide the Buyers with the

234

following delivery documents:

 

235

(i) Legal Bill(s) of Sale in a form recordable in the Buyers’ Nominated Flag State,

236

transferring title of the Vessel and stating that the Vessel is free from all mortgages,

237

encumbrances and maritime liens (whether maritime or otherwise) or any other debts whatsoever, duly notarially attested

238

and legalised or apostilled, as required by the Buyers’ Nominated Flag State;

 

239

(ii) Evidence that all necessary corporate, shareholder and other action has been taken by

240

the Sellers to authorise the execution, delivery and performance of this Agreement;

 

241

(iii) Power of Attorney of the Sellers appointing one or more representatives to act on behalf

242

of the Sellers in the performance of this Agreement, duly notarially attested and legalised

243

or apostilled (as appropriate);

 

244

(iv) Certificate or Transcript of Registry issued by the competent authorities of the flag state

245

on the date of delivery evidencing the Sellers’ ownership of the Vessel and that the

246

Vessel is free from registered encumbrances and mortgages, to be faxed or e-mailed by

247

such authority to the closing meeting with the original to be sent to the Buyers as soon as

248

possible after delivery of the Vessel;

 

249

(v) Declaration of Class or (depending on the Classification Society) a Class Maintenance

250

Certificate issued within three (3) BusinessBanking Days prior to delivery confirming that the

251

Vessel is in Class free of overdue condition/recommendation;

 

252

(vi) Certificate of Deletion of the Vessel from the Vessel’s registry or other official evidence of

253

deletion appropriate to the Vessel’s registry at the time of delivery, or, in the event that

254

the registry does not as a matter of practice issue such documentation immediately, a

255

written undertaking by the Sellers to effect deletion from the Vessel’s registry forthwith

256

and provide a certificate or other official evidence of deletion to the Buyers promptly and

257

latest within four (4) weeks after the Purchase Price has been paid and the Vessel has

258

been delivered;

 

259

(vii) A copy of the Vessel’s Continuous Synopsis Record certifying the date on which the

260

Vessel ceased to be registered with the Vessel’s registry, or, in the event that the registry

261

does not as a matter of practice issue such certificate immediately, a written undertaking

262

from the Sellers to provide the copy of this certificate promptly upon it being issued

263

together with evidence of submission by the Sellers of a duly executed Form 2 stating

264

the date on which the Vessel shall cease to be registered with the Vessel’s registry;

 

265

(viii) Commercial Invoice for the Vessel;

 

266

(ix) Commercial Invoice(s) for bunkers, lubricating and hydraulic oils and greases;

 

267

(x) A copy of the Sellers’ letter to their satellite communication provider cancelling the

268

Vessel’s communications contract which is to be sent immediately after delivery of the

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


269

Vessel;

 

270

(xvii) Any additional documents as may reasonably be required by the competent authorities of

271

the Buyers’ Nominated Flag State for the purpose of registering the Vessel, each in a form acceptable to the Buyers’ Nominated Flag State, duly notarially attested and legalised or apostilled (if required) provided the

272

Buyers notify the Sellers of any such documents as soon as possible after the date of

273

this Agreement; and

 

274

(xviii) The Sellers’ letter of confirmation that to the best of their knowledge, the Vessel is not

275

black listed by any nation or international organisation.

 

276

(b) At the time of delivery the Buyers shall provide the Sellers with:

 

277

(i) Evidence that all necessary corporate, shareholder and other action has been taken by

278

the Buyers to authorise the execution, delivery and performance of this Agreement; and

 

279

(ii) Power of Attorney of the Buyers (if any) appointing one or more representatives to act on behalf

280

of the Buyers in the performance of this Agreement, duly notarially attested and legalised

281

or apostilled (as appropriateif so required by the Buyers’ Nominated Flag State).

 

282

(c) If any of the documents listed in Sub-clauses (a) and (b) above are not in the English

283

language they shall be accompanied by an English translation by an authorised translator or

284

certified by a lawyer qualified to practice in the country of the translated language.

 

285

(d) The Parties shall to the extent possible exchange copies, drafts or samples of the

286

documents listed in Sub-clause (a) and Sub-clause (b) above for review and comment by the

287

other party not later than three (3) Business Days (or such shorter period as the Buyers may agree) prior to the Scheduled Delivery Date (state number of days), or if left blank, nine (9) days prior to the

288

Vessel’s intended date of readiness for delivery as notified by the Sellers pursuant to

289

Clause 5(b) of this Agreement.

 

290

(e) On delivery, Concurrent with the exchange of documents in Sub clause (a) and Sub clause (b) above,

291

the Sellers shall also hand to the Buyers copies of the classification certificate(s) as well as all plans,

292

drawings and manuals, (excluding ISM/ISPS manuals), which are on board the Vessel (with the originals to follow promptly after delivery). Other

293

certificates which are on board the Vessel shall also be handed over to the Buyers unless

294

the Sellers are required to retain same, in which case the Buyers have the right to take copies.

 

295

(f) Other technical documentation which may be in the Sellers’ possession shall promptly after

296

delivery be forwarded to the Buyers at their Sellers’ expense, if they so request. The Sellers may keep

297

the Vessel’s log books but the Buyers have the right to take copies of same.

 

298

(g) The Parties shall sign and deliver to each other a Protocol of Delivery and Acceptance

299

confirming the date and time of delivery of the Vessel from the Sellers to the Buyers.

300 9. Encumbrances

 

301

The Sellers warrant that the Vessel, at the time of delivery, is free from all charters (other than the Bareboat Charter and any Approved Sub-charter),

 

302

encumbrances, mortgages and maritime liens (whether maritime or otherwise) or any other debts whatsoever, and is not subject

303

to Port State or other administrative detentions. The Sellers hereby undertake to indemnify the

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


304

Buyers against all consequences of claims made against the Vessel which have been incurred

305

prior to the time of delivery.

306 10. Taxes, fees and expenses

 

307

Any taxes, fees and expenses in connection with the purchase of the Vessel and registration in the Buyers’

308

Nominated Flag State shall be for the Buyers’ account, whereas similar charges and in connection

309

with the closing of the Sellers’ register shall be for the Sellers’ account.

310 11. Condition on delivery

 

311

The Vessel with everything belonging to her shall be at the Sellers’ risk and expense until she is

312

delivered to the Buyers, but subject pursuant to the terms and conditions of this Agreement she shall be

313

delivered and taken over as she was at the time of inspection, fair wear and tear excepted.

 

314

However, the Vessel shall be delivered free of cargo and free of stowaways with her Class

315

maintained without free from all overdue condition/recommendation*, free of average damage affecting the Vessel’s

316

class, and with her classification certificates and national certificates, as well as all other

317

certificates the Vessel had at the time of inspectiondelivery, valid and unextended without

318

condition/recommendation* by the Classification Society or the relevant authorities at the time

319

of delivery.

 

320

“inspection” in this Clause 11, shall mean the Buyers’ inspection according to Clause 4(a) or

321

4(b) (Inspections), if applicable. If the Vessel is taken over without inspection, the date of this

322

Agreement shall be the relevant date.

 

323

*Notes and memoranda, if any, in the surveyor’s report which are accepted by the Classification

324

Society without condition/recommendation are not to be taken into account.

325 12. Name/markings

 

326

Upon delivery the Buyers undertake to change the name of the Vessel and alter funnel

327

markings.

328 13. Buyers’ default

 

329

Should the Deposit not be lodged in accordance with Clause 2 (Deposit), the Sellers have the

330

right to cancel this Agreement, and they shall be entitled to claim compensation for their losses

331

and for all expenses incurred together with interest.

332

Should the Purchase Price not be paid in accordance with Clause 3 (Payment) this Agreement, the Sellers

333

have the right to cancel this Agreement, in which case it shall terminate whereupon all the Buyers’ liabilities hereunder shall be extinguished. the Deposit together with interest

334

earned, if any, shall be released to the Sellers. If the Deposit does not cover their loss, the

335

Sellers shall be entitled to claim further compensation for their losses and for all expenses

336

incurred together with interest.

337 14. Sellers’ default

 

338

Should the Sellers fail to give Notice of Readiness in accordance with Clause 5(b) or fail to be

339

ready to validly complete a legal transfer by the Cancelling Date the Buyers shall have the

340

option of cancelling this Agreement. If after Notice of Readiness has been given but before

341

the Buyers have taken delivery, the Vessel ceases to be physically ready for delivery and is not

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


342

made physically ready again by the Cancelling Date and new Notice of Readiness given, the

343

Buyers shall retain their option to cancel. In the event that the Buyers elect to cancel this

344

Agreement, the Deposit together with interest earned, if any, shall be released to them

345

immediately.

 

346

Without prejudice to any of the rights the Buyers may have under the Leasing Documents, at law or otherwise, Sshould the Sellers fail to give Notice of Readiness by the Cancelling Date or fail to be ready to

347

validly complete a legal transfer as aforesaid they shall make due compensation to the Buyers

348

for their loss and for all documented expenses together with interest if their failure is due to proven

349

negligence and whether or not the Buyers cancel this Agreement.

350 15. Buyers’ representatives

 

351

After this Agreement has been signed by the Parties and the Deposit has been lodged, the

352

Buyers have the right to place two (2) representatives on board the Vessel at their sole risk and

353

expense.

 

354

These representatives are on board for the purpose of familiarisation and in the capacity of

355

observers only, and they shall not interfere in any respect with the operation of the Vessel. The

356

Buyers and the Buyers’ representatives shall sign the Sellers’ P&I Club’s standard letter of

357

indemnity prior to their embarkation.

358 16. Law and Arbitration - see Clause 30 (Governing lLaw and eEnforcement)

 

359

(a) *This Agreement shall be governed by and construed in accordance with English law and

360

any dispute arising out of or in connection with this Agreement shall be referred to arbitration in

361

London in accordance with the Arbitration Act 1996 or any statutory modification or re

362

enactment thereof save to the extent necessary to give effect to the provisions of this Clause.

 

363

The arbitration shall be conducted in accordance with the London Maritime Arbitrators

364

Association (LMAA) Terms current at the time when the arbitration proceedings are

365

commenced.

 

366

The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall

367

appoint its arbitrator and send notice of such appointment in writing to the other party requiring

368

the other party to appoint its own arbitrator within fourteen (14) calendar days of that notice and

369

stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own

370

arbitrator and gives notice that it has done so within the fourteen (14) days specified. If the

371

other party does not appoint its own arbitrator and give notice that it has done so within the

372

fourteen (14) days specified, the party referring a dispute to arbitration may, without the

373

requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator

374

and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on

375

both Parties as if the sole arbitrator had been appointed by agreement.

 

376

In cases where neither the claim nor any counterclaim exceeds the sum of US$100,000 the

377

arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at

378

the time when the arbitration proceedings are commenced.

 

379

(b) *This Agreement shall be governed by and construed in accordance with Title 9 of the

380

United States Code and the substantive law (not including the choice of law rules) of the State

381

of New York and any dispute arising out of or in connection with this Agreement shall be

382

referred to three (3) persons at New York, one to be appointed by each of the parties hereto,

383

and the third by the two so chosen; their decision or that of any two of them shall be final, and

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


384

fer-the-puffpeses-ef--enfer-eingeeyewafdr jedgment-may-be-enteFed-ene-neward-by-afl-N.’eauft-df

385

eempet-ent-jensdietien,The-pfeeeedings shall be conducted in accordance with the rules of the

386

Society of Maritime Arbitrators, Inc.

 

387

1-n-eases-wliere-neitner-the-eleim-ner-aweeenterelei-m-exeeeds-the-sufn-ef-U-S$4(40 70004he

388

ar-laitr-atien-511e[kbe-ednel-uet-ed-kl-aseardenee-with4lie—Sher-t-ened-Arlalt-ret-iewPfeeedufe-ef-t-he

389

Society of Maritime Arbitrators, Inc.

 

390

(c) This Agreement shall be governed--lay-ane-eeestr-ued-i-n-accer-danee-wit-h-the-lews-of

391

{-stat-e-p4aee)-aRel-any-c145pe-te-a-6411-g-aut-ef-e-r-i-n-eeneeetien-with4h-i-s-Agreement-s-hell-be

392

referred to arbitration at {state place), subject to the procedures applicable there.

 

393

1-1-6{-a)16{-1a)-a-n-6146{-0-ar-e-altern-ativest delete-whiehever-is-net-alaPlieable,41-thealasence-ef

394

delet-iensralternetive46(a)-s

395 17. Notices - see Clause 26 (Notices)

 

396

All notices to be provided under this Agreement shall be in writing.

 

397

Contact details for recipients of notices arc as follows:

 

398

For the Buyers:

 

399

For the Sellers:

400 18. Entire Agreement

 

401

The written terms of this Agreement (together with the other Leasing Documents) comprise the entire agreement between the Buyers and

 

402

the Sellers in relation to the sale and purchase of the Vessel and supersede all previous

403

agreements whether oral or written between the Parties in relation thereto.

 

404

Each of the Parties acknowledges that in entering into this Agreement it has not relied on and

405

shall have no right or remedy in respect of any statement, representation, assurance or

406

warranty (whether or not made negligently) other than as is expressly set out in this Agreement.

 

407

Any terms implied into this Agreement by any applicable statute or law are hereby excluded to

408

the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude

409

any liability for fraud.

For and on behalf of the Sellers                                For and on behalf of the Buyers

Name: GEORGIOS PANAGAKIS                        Name:

Title:                                                                           Title:

 

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


384

fec-the-p-bkriaeses-ef-enfo-Feing-afiy-ewaFdr fudgment-may-be-eht-efed-eft-ah-awa-Fd-lay-afty-eouft-ef

385

eempeteRtiu-r-iselletion,-Thelar-eeeedin. gs-s-he44-be-eeflti-u.ete.d-itl-a.eee.Felonee-wit-h-the-Futes-ef-the

386

Society-of-WieFit-iffie-k-bitFater-sr Inc.

 

387

.141-eases-Wilefe-neither-the-elaifh-her-aRy-eei&hteFelai.m-eNeeeds-t-he-swri-ef-U4-100 70430-t-he

388

e-Flait-r-atien-shall-be-eoh€14eteel-in--aeeerr-dance-wit-h-thes,hertehed-Afiattfation-RFeeed4r-e-of-the

389

Seeiety-ef-Mer-it-ifneAr-bit-Fatef5r

 

390

(e)4his-AgFeement-sh-all-be-gover-nee144y-affel-eehstfuefl-th-aeeerdahee-with-t-he4aws-ef

391

ist-eteigaeefah.d-any-disiivute-aFISinteet-ef-Of-i11-eeftheet-ieh-Mt-h4h4s-Agr-eemeht-shai-1-43e

392

fefer-r-ed4e-ar-bit-Fatieh-at- kstate-pleee)r subjeet-t-e-the-pfeeedufes-app4ieable4heFe7

 

393

±--1-C4a)4fifb4..afid4gke)_afe..a.k.e.FRat4vesi_ei.e[ete4vh4thever_is_net_appi4.ee6ie[a_the_a.bseFFee_ef

394

efelet4ensra4t-efriative-1604-shall-appPft

395 17. Notices - see Clause 26 I: Notices)

 

396

AH-r+et-iees-te-be-pr-ravieleel-u.Rder-t-Wks-Atr-eem-eot-s494-1-be4n-vofi-t4-rig:

 

397

ceefitest-eleta-i-16-fer-Feelpiehts-ef-Ret-iees-afe-as-fei4ews4

 

398

.FeFt4eiluye-Fsi

 

399

For the Sellers:

400 18. Entire Agreement

 

401

The written terms of this Agreement toflether with the other Leasing Document_sicomprise the entire agreement between the Buyers and

402

the Sellers in relation to the sale and purchase of the Vessel and supersede all previous

403

agreements whether oral or written between the Parties in relation thereto.

 

404

Each of the Parties acknowledges that in entering into this Agreement it has not relied on and

405

shall have no right or remedy in respect of any statement, representation, assurance or

406

warranty (whether or not made negligently) other than as is expressly set out in this Agreement.

 

407

Any terms Implied into this Agreement by any applicable statute or law are hereby excluded to

408

the extent that such exclusion can legally be made. Nothing in this Clause shall limit or exclude

409

any liability for fraud.

For and on behalf of the Sellers                                For and on behalf of the Buyers

Name:                                                                        Name: s/s YANG GUANGYI

Title:                                                                           Title: Attorney-in-Fact

41,

 

Copyright © 2012 Norwegian Shipbrokers’ Association. All rights reserved. Published by BIMCO. No part of this BIMCO SmartCon document may be copied, reproduced or distributed in any form without the prior written permission of the Norwegian Shipbrokers’ Association. Explanatory notes are available from BIMCO at www.bimco.org. Adopted by BIMCO in 1956, revised 1966, 1983, 1986/87, 1993 and 2012.


EXECUTION VERSION

ADDITIONAL CLAUSES TO MEMORANDUM OF AGREEMENT

DATED 12 June 2020

CLAUSE 19 PAYMENT OF PURCHASE PRICE

 

(a)

Subject to the provisions of this Agreement:

 

  (i)

the Sellers shall sell and transfer all rights, title and interest in the Vessel absolutely, with full title guarantee, to the Buyers on the Delivery Date; and

 

  (ii)

the Buyers shall pay the Purchase Price to the Sellers on the Delivery Date for the purchase of the Vessel from the Sellers upon the terms and conditions set out herein, provided that an amount of the Purchase Price equivalent to the aggregate of the Advance Charterhire and the Deposit shall be set off against the Charterers’ obligation to pay the same under the Bareboat Charter, such that the Buyers shall only be required to remit a net amount equivalent to the Purchase Price (less the Advance Charterhire and the Deposit) to the Sellers for their purchase of the Vessel hereunder (the “Net Remittance”).

 

(b)

Transfer of the Net Remittance by the Sellers is subject to the following procedure and conditions:

 

  (i)

the conditions precedent set out in Part A of Schedule II of the Bareboat Charter being fulfilled to the satisfaction of the Buyers prior to the issuance of a Payment Notice by the Sellers, after which the Sellers may issue a Payment Notice (which shall be irrevocable once issued unless otherwise agreed by the Buyers) to the Buyers whereupon the Buyers are required to remit an amount equal to the Net Remittance to the Escrow Agent’s account to be held and released in accordance with the terms of the Escrow Agreement;

 

  (ii)

the Remittance Date falling on a Business Day within the Availability Period and being no earlier than three (3) Business Days after the date the Payment Notice is issued;

 

  (iii)

Delivery taking place (and the proposed Scheduled Delivery Date being) on a Business Day on or before the Cancelling Date;

 

  (iv)

no Potential Termination Event or Termination Event having occurred and being continuing on the Remittance Date and on the Delivery Date immediately before the release of the Net Remittance referred to below; and

 

  (v)

the further conditions precedent set out in Clause 20 (Further Conditions Precedent) and the conditions precedent set out in Part B Schedule II of the Bareboat Charter being fulfilled to the satisfaction of the Buyers on the Delivery Date in which case the Net Remittance shall be released to the Sellers in accordance with the terms of the Escrow Agreement.

 

(c)

The Sellers hereby irrevocably and unconditionally undertake to pay, to the Buyers, interest on the Finance Amount calculated at the rate of the LIBOR (based the rate that would be applicable to the first Term assuming delivery on the Scheduled Delivery Date) plus 3.9% per annum for each day during the period commencing on and from the Remittance Date up to earlier of (I) the Delivery Date (but excluding the Delivery Date for such calculation) or (II) the day the Net Remittance is returned to the Buyers (and including return such date for such calculation) if such sale does not complete. The Buyers shall notify the Sellers of any interest payable hereunder and the same shall be payable by the Buyers to the Sellers on the first Payment Date under the Bareboat Charter (unless otherwise agreed by the Buyers and the Sellers) or if the sale does not complete, on demand by the Buyers.

 

1


CLAUSE 20 FURTHER CONDITIONS PRECEDENT

The conditions precedent referred to in Clause 19(b)(v) are:

 

(a)

the items listed in Clause 8(a)(i) to (viii) of this Agreement; and

 

(b)

such other documents as the Buyers may reasonably notify the Sellers as being necessary in relation to the Vessel and/or its status (including without limitation, such confirmation of no liens and/or indemnity thereto which the Buyers may require the Sellers to provide or procure in respect of the Vessel).

CLAUSE 21 FURTHER REPRESENTATION AND WARRANTIES OF SELLERS

 

(a)

In addition to the warranty provided by the Sellers under Clause 9 (Encumbrances), the Sellers represent and warrant to the Buyers that:

 

  (i)

they are duly incorporated and validly existing under the laws of their jurisdiction of incorporation;

 

  (ii)

they have the requisite power and authority to enter into and perform this Agreement and this Agreement constitutes their valid, legal and binding obligations in accordance with its terms;

 

  (iii)

the execution and performance by them of this Agreement will not breach or constitute a default under their constitutional documents or any agreement, instrument, order, judgment or other restriction which binds the Sellers;

 

  (iv)

they have good and marketable title to the Vessel and are the sole legal and beneficial owner of the Vessel;

 

  (v)

the Vessel is:

 

  (A)

in a good and safe condition and state of repair consistent with first class ship ownership and management practice;

 

  (B)

is classed with the Classification Society at the highest classification available for vessels of its type and is free of all overdue recommendations or conditions; and

 

  (C)

has her survey cycles up-to-date and all trading and class certificates valid for at least three (3) months;

 

  (vi)

the Vessel is free from all Security Interests and they have not agreed to create any Security Interest over the Vessel (or any part of it) other than in favour of the Buyers (in their capacity as owners) under a Leasing Document;

 

  (vii)

the Vessel is free of all charters (other than the Bareboat Charter and any Approved Sub-charter);

 

  (viii)

they:

 

  (A)

are not a Restricted Person;

 

2


  (B)

they are not owned or controlled by or acting directly on behalf of or for the benefit of, a Restricted Person; and

 

  (C)

they do not own or control a Restricted Person;

 

  (ix)

neither they nor any of their directors, officers or employees or any person acting on their behalf have received notice or are aware of any claim, action, suit, proceeding or investigation against them with respect to Sanctions; and

 

  (x)

no proceeds of the Purchase Price shall be made available, directly or (to the best of their knowledge and belief (after making due and careful enquiries) indirectly, to or for the benefit of a Restricted Person nor shall they be otherwise directly or (to the best of their knowledge and belief (after making due and careful enquiries) indirectly, applied in a manner or for a purpose prohibited by Sanctions.

 

(b)

Each of the representations and warranties made by the Sellers under this Clause 21 (Further Representation and Warranties of Sellers) shall be deemed to be made and repeated on the date of this Agreement and each day thereafter up to and on the Delivery Date, with reference to the facts and circumstances then existing on such date.

CLAUSE 22 ACCESS TO INFORMATION AND INSPECTION

The Buyers shall be entitled to request such information that they may reasonably require in relation to the Vessel and copies of the documentation held by the Sellers relating to the Vessel, and all such information and documentation shall be delivered promptly by the Sellers to the Buyers, upon the Buyers’ request.

CLAUSE 23 BUYERS’ FURTHER RIGHTS ON TERMINATION

If a Termination Event occurs prior to Delivery, the Buyers shall have the right (in their absolute discretion) to terminate this Agreement immediately by written notice to the Sellers and such termination shall become effective on the date of such written notification (or such other date as the Buyers may specify in such notice), whereupon:

 

(a)

the Buyers shall cease to have any rights or obligations in relation to each other under this Agreement, provided however that, in consideration of the Buyers entering into this Agreement and the Bareboat Charter as at the date hereof, the Buyers shall be entitled to retain all Indemnified Expenses and/or fees paid by the Sellers under this Agreement and the other Leasing Documents, and such payment is acknowledged by the Charterers to be proportionate as to amount, having regard to the legitimate interest of the Buyers, in protecting against the Buyers’ risk of the Sellers failing to perform its obligations under this Agreement; and

 

(b)

the Sellers shall be obliged to immediately refund or procure that there be immediately refunded in full to the Buyers, any portion of the Purchase Price remitted or transferred by the Buyers under this Agreement, as at the date of such termination.

CLAUSE 24 PHYSICAL PRESENCE

If there is any change in the flag state from the Flag State at the date of this Agreement and such new Flag State requires the Buyers to register itself and/or have a physical presence or office or be otherwise registered in the jurisdiction of such Flag State, all fees, costs and expenses arising out of or in connection with such registration and/or the establishment and maintenance of such physical presence or office or registration by the Buyers shall be borne by the Sellers.

 

3


CLAUSE 25 INDEMNITIES

 

(a)

In consideration of the Buyers entering into this Agreement and the Bareboat Charter as at the date hereof, the Sellers shall indemnify and pay such amounts to the Buyers in respect of all costs, claims, expenses, liabilities, losses, damages and fees (including but not limited to any Escrow Agent fees, legal fees, vessel registration and tonnage fees) suffered or incurred by or imposed on the Buyers arising from this Agreement or in connection with the Delivery, registration, purchase and inspection of the Vessel by the Buyers whether prior to, during or after termination of this Agreement or in connection with or resulting from the funding or payment of all or any portion of the Purchase Price regardless of whether a Payment Notice has already been issued or not, and whether the Vessel is in the possession of or the control of the Sellers, or otherwise.

 

(b)

Notwithstanding anything to the contrary herein, the indemnities provided by the Sellers shall be provided in favour of the Buyers and shall continue in full force and effect notwithstanding any breach by the Sellers of the terms of this Agreement or termination of this Agreement by the Buyers pursuant to the terms hereof.

CLAUSE 26 NOTICES

Any notice, certificate, demand or other communication to be served, given, made or sent under or in relation to this Agreement shall be in English and in writing and (without prejudice to any other valid method or giving, making or sending the same) shall be deemed sufficiently given or made or sent if sent by registered post or by email to the following respective address:

 

(A)

to the Buyers:         c/o AVIC International Leasing Co., Ltd.

                                          18/F, CATIC Tower,

                                          212 Jiang Ning Road,

                                          Shanghai 200041,

                                          The People’s Republic of China

                                          Attention: Emily Chen

                                          Email: chenzhengrong@chinaleasing.net

 

(B)

to the Sellers:         c/o Navios Tankers Management Inc.

                                          85 Akti Miaouli, 18535, Piraeus, Greece

                                          Attention: Vasiliki Papaefthymiou

                                          Email: legal_corp@Navios.com

or, if a party hereto changes its address or email address, to such other address (or email address) as that party may notify to the other.

CLAUSE 27 NO WAIVER OF RIGHTS

 

(a)

No neglect, delay, omission or indulgence on the part of a Party in enforcing the terms and conditions of this Agreement shall prejudice the strict rights of such Party or be construed as a waiver thereof nor shall any single or partial exercise of any right of either party preclude any other or further exercise thereof.

 

(b)

No right or remedy conferred upon a Party by this Agreement shall be exclusive of any other right or remedy provided for herein or by law and all such rights and remedies shall be cumulative.

 

4


CLAUSE 28 ASSIGNMENT AND TRANSFER

Each of the Buyers and the Sellers may only assign or transfer (whether by novation or otherwise) their rights and/or obligations under this Agreement, to the extent it may do so under the Bareboat Charter.

CLAUSE 29 MISCELLANEOUS

 

(a)

Unless otherwise expressly stated to the contrary in this Agreement, any payment which is due to be made on a day which is not a Business Day shall be made on the preceding Business Day instead.

 

(b)

If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

 

(c)

The Sellers waive any rights of sovereign immunity which they or any of their assets may enjoy in any jurisdiction and subjects itself to civil and commercial law with respect to their obligations under this Agreement.

 

(d)

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.

 

(e)

This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement or that Leasing Document, as the case may be.

 

(f)

The Sellers hereby acknowledge that the Buyers are relying on the Sellers in all respects to check all matters concerning the Vessel, its safety, condition, quality and to ensure that the Vessel is fit for purpose.

CLAUSE 30 GOVERNING LAW AND ENFORCEMENT

 

(a)

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

 

(b)

Any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a “Dispute”) shall be referred to and finally resolved by arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause 30 (Governing Law and Enforcement). The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (“LMAA”) Terms current at the time when the arbitration proceedings are commenced.

 

(c)

The reference shall be to three arbitrators. A party wishing to refer a Dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a Dispute to arbitration

 

5


  may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator.

 

(d)

Where the reference is to three arbitrators the procedure for making appointments shall be in accordance with the procedure for full arbitration stated above.

 

(e)

The language of the arbitration shall be English.

CLAUSE 31 DEFINITIONS

Unless otherwise specified hereunder, capitalised terms in this Agreement shall have the same meaning as defined in the Bareboat Charter:

Availability Period” means the period commencing from the date of this Agreement up to and including the earliest of (i) the Delivery Date, (ii) the date on which the Bareboat Charter is repudiated, rescinded, terminated or cancelled pursuant to the terms thereof or otherwise ceases to be valid and enforceable against the parties thereto for any reason whatsoever and (iii) the Cancelling Date.

Bareboat Charter” means the bareboat charterparty in respect of the Vessel dated on or about the date hereof and entered into between the Buyers as owners and the Sellers as bareboat charterers.

Cancelling Date” means 30 September 2020 or such later date as may be agreed by the Buyers acting in their absolute discretion.

Delivery” means the transfer of the legal and beneficial interest in the Vessel from the Sellers to the Buyers pursuant to the terms of this Agreement.

Delivery Date” means the date on which Delivery occurs.

Dispute” shall have the meaning ascribed thereto under Clause 30 (Governing Law and Enforcement).

Escrow Agent” means Herring Parry Khan Law Office trading as INCE of 47-49 Akti Miaouli, Piraeus 185 36, Greece.

Escrow Agreement” means the escrow agreement dated on or around the date of this Agreement setting out the terms of appointment of the Escrow Agent and the manner in which the Escrow Agent will hold and release or return the Net Remittance in a form acceptable to the Buyers.

Indemnified Expenses” means any costs, expenses and/or liabilities of the Buyers indemnified by the Sellers under this Agreement and the other Leasing Documents.

Net Remittance” has the meaning given to it under Clause 19(a)(ii) of this Agreement. “Party” means a party to this Agreement.

Payment Notice” means the notice to be submitted by the Sellers to the Buyers to request for the Buyers’ payment of the Net Remittance, which shall be in the form set out in Schedule 1.

 

6


Purchase Price” means the lower of:

 

(a)

the Estimated Value; and

 

(b)

the Initial Market Value.

“Remittance Date” means the date on which the Buyers are to make the transfer of Net Remittance to the Escrow Agent in accordance with the terms of the Escrow Agreement, such date being at least one Business Day before the Scheduled Delivery Date (or as otherwise agreed between the Sellers and the Buyers).

“Scheduled Delivery Date” means the expected date of delivery of the Vessel set out in the Payment Notice.

 

7


EXECUTION PAGE

BUYERS

SIGNED BY YANG GUANGYI

for and on behalf of

GREAT RHODES LIMITED

as attorney-in-fact

in the presence of

 

Witness’ signature:

Witness’ name:

Witness’ address:

     

SELLERS

SIGNED BY

for and on behalf of

RHODES SHIPPING CORPORATION

as attorney-In-fact

in the presence of

Witness’ signature:

Witness’ name:

Witness’ address:

 

9


EXECUTION PAGE

BUYERS

SIGNED BY

for and on behalf of

GREAT RHODES LIMITED

as attorney-in-fact

in the presence of

Witness’ signature:

Witness’ name:

Witness’ address:

 

SELLERS

 

SIGNED BY GEORGIOS PANAGAKIS

for and on behalf of

RHODES SHIPPING CORPORATION

as attorney-in-fact

in the presence of

 

Witness’ signature:

Witness’ name:

Witness’ address:

 

 

 

)

)

)

)

)

 

)

)

  

 

 

—0/41tAl

./.0..eti A ‘DIMITREOu

‘UVA;i2ON FARLEY & WILLIAMS

348 SYNGROU AVENUE

176 74 KALUTHEA

ATHENS - Griti

 

9

v3.20.2
Cover
6 Months Ended
Jun. 30, 2020
Cover [Abstract]  
Document Type 6-K
Amendment Flag false
Document Period End Date Jun. 30, 2020
Document Fiscal Period Focus Q2
Document Fiscal Year Focus 2020
Current Fiscal Year End Date --12-31
Entity Registrant Name NAVIOS MARITIME ACQUISITION CORPORATION
Entity Central Index Key 0001437260
v3.20.2
Condensed Consolidated Balance Sheets - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Current assets    
Cash and cash equivalents $ 67,718 $ 43,561
Restricted cash 764 490
Accounts receivable, net 29,563 34,235
Due from related parties, short term 2,039 16,688
Prepaid expenses and other current assets 9,703 12,826
Inventories 5,440 6,208
Assets held for sale 83,006 0
Total current assets 198,233 114,008
Vessels, net 1,318,656 1,348,251
Goodwill 1,579 1,579
Other long-term assets 9,383 5,456
Deferred dry dock and special survey costs, net 43,169 37,133
Investment in affiliates 0 6,650
Due from related parties, long-term 14,658 42,878
Total non-current assets 1,387,445 1,441,947
Total assets 1,585,678 1,555,955
Current liabilities    
Accounts payable 9,776 15,355
Accrued expenses 14,078 14,337
Due to related parties, short-term 0 32,150
Dividends payable 4,809 4,711
Deferred revenue 8,290 2,433
Current portion of long-term debt, net of deferred finance costs 99,956 172,953
Liabilities associated with assets held for sale 50,323 0
Total current liabilities 187,232 241,939
Long-term debt, net of current portion, premium and net of deferred finance costs 1,061,078 1,000,164
Total non-current liabilities 1,061,078 1,000,164
Total liabilities 1,248,310 1,242,103
Commitments and contingencies 0 0
Stockholders’ equity    
Preferred stock, $0.0001 par value; 10,000,000 shares authorized; no shares of Series C issued and outstanding as of June 30, 2020 and December 31, 2019 0 0
Common stock, $0.0001 par value; 250,000,000 shares authorized; 16,089,890 and 15,873,391 issued and outstanding as of June 30, 2020 and December 31, 2019, respectively 2 2
Additional paid-in capital 512,905 521,275
Accumulated deficit (175,539) (207,425)
Total stockholders’ equity 337,368 313,852
Total liabilities and stockholders’ equity $ 1,585,678 $ 1,555,955
v3.20.2
Condensed Consolidated Balance Sheets (Parenthetical) - $ / shares
Jun. 30, 2020
Dec. 31, 2019
Preferred stock - par value $ 0.0001 $ 0.0001
Preferred stock shares authorized 10,000,000 10,000,000
Common stock shares issued 16,089,890 15,873,391
Common stock shares outstanding 16,089,890 15,873,391
Common stock - par value $ 0.0001 $ 0.0001
Common stock shares authorized 250,000,000 250,000,000
Series C Preferred Stock [Member]    
Common stock shares issued 0  
Common stock shares outstanding   0
v3.20.2
Condensed Consolidated Statements of Operations - USD ($)
$ in Thousands
3 Months Ended 6 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Jun. 30, 2020
Jun. 30, 2019
Income Statement [Abstract]        
Revenue $ 112,224 $ 58,585 $ 210,081 $ 135,704
Time charter and voyage expenses (3,450) (4,196) (9,532) (8,963)
Direct vessel expenses (3,465) (2,323) (6,605) (4,678)
Vessel operating expenses (management fees entirely through related party transactions) (29,836) (26,481) (59,673) (54,387)
General and administrative expenses (6,293) (6,808) (10,247) (11,945)
Depreciation and amortization (16,643) (17,320) (33,249) (35,041)
Gain on sale of vessels 0 2,594 0 3,245
Interest income 4 2,296 7 4,456
Interest expense and finance cost (21,680) (23,696) (43,523) (46,625)
Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies 0 889 (13,900) 1,734
Other income 156 0 0 1,333
Other expense 0 (90) (1,473) (522)
Net income/ (loss) 31,017 (16,550) 31,886 (15,689)
Dividend declared on restricted shares (47) (65) (94) (131)
Undistributed loss attributable to Series C participating preferred shares 0 0 0 (13)
Net income/ (loss) attributable to common stockholders, basic 30,970 (16,615) 31,792 (15,833)
Undistributed loss attributable to Series C participating preferred shares 0 0 0 13
Net income/ (loss) attributable to common stockholders, diluted $ 30,970 $ (16,615) $ 31,792 $ (15,820)
Net income/ (loss) per share, basic $ 1.95 $ (1.23) $ 2.01 $ (1.18)
Weighted average number of shares, basic 15,888,354 13,510,361 15,803,166 13,414,547
Net income/ (loss) per share, diluted $ 1.93 $ (1.23) $ 1.99 $ (1.18)
Weighted average number of shares, diluted 16,043,704 13,510,361 15,958,897 13,414,547
v3.20.2
Condensed Consolidated Statements of Cash Flows - USD ($)
$ in Thousands
6 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Operating Activities    
Net income/ (loss) $ 31,886 $ (15,689)
Adjustments to reconcile net income/ (loss) to net cash provided by operating activities:    
Depreciation and amortization 33,249 35,041
Amortization and write-off of deferred finance fees and bond premium 3,045 2,293
Amortization of dry dock and special survey costs 6,167 4,626
Stock based compensation 246 460
Gain on sale of vessels 0 (3,245)
Impairment loss relating to the investment in Navios Europe II 13,900 0
Equity in net earnings of affiliated companies, net of dividends received 0 (1,734)
Changes in operating assets and liabilities:    
Decrease/(increase) in prepaid expenses and other current assets 2,918 (413)
Decrease in inventories 2,489 0
Decrease in accounts receivable 3,772 8,343
Increase in due from related parties, short-term (2,038) (15,804)
Increase in other long term assets (3,927) 0
(Increase)/ decrease in due from related parties, long-term (1,845) 2,431
Decrease in accounts payable (5,362) (1,834)
Increase in accrued expenses 860 476
Payments for dry dock and special survey costs (20,421) (1,662)
Decrease in due to related parties, short-term (20,073) (12,029)
Increase in deferred revenue 5,857 285
Net cash provided by operating activities 50,723 1,545
Investing Activities    
Loans to affiliates 0 (2,000)
Container vessel owning companies acquisition/ vessels improvements (44,623) (5,563)
Net cash proceeds from sale of vessel 33,301
Net cash (used in)/ provided by investing activities (44,623) 25,738
Financing Activities    
Loan proceeds, net of deferred finance costs 133,054 98,201
Loan repayments (106,107) (121,525)
Dividend paid (9,564) (8,240)
Acquisition of treasury stock 0 (366)
Net proceeds from equity offering 948  
Net cash provided by/ (used in) financing activities 18,331 (31,930)
Net increase/(decrease) in cash, cash equivalents and restricted cash 24,431 (4,647)
Cash, cash equivalents and restricted cash, beginning of period 44,051 46,609
Cash, cash equivalents and restricted cash, end of period 68,482 41,962
Supplemental disclosures of cash flow information    
Cash interest paid 40,212 44,525
Non-cash investing activities    
Accrued interest on loan to affiliate 0 1,734
Container vessel owning companies acquisition 37,658 0
Non-cash financing activities    
Stock based compensation 246 460
Deferred finance costs 215 492
Other long term assets $ 0 $ 3,095
v3.20.2
Condensed Consolidated Statements of Changes In Equity - USD ($)
$ in Thousands
Preferred Stock [Member]
Common Stock [Member]
Additional Paid-in Capital [Member]
Retained Earnings [Member]
Total
Balance, at Dec. 31, 2018 $ (0) $ 1 $ 522,335 $ (141,984) $ 380,352
Balance, shares at Dec. 31, 2018 1,000 13,280,927      
Conversion of preferred stock to common, shares (1,000)        
Conversion of preferred stock to common, shares   511,733      
Acquisition of treasury stock $ 0 $ 0 (366) 0 (366)
Acquisition of treasury stock, shares   (64,289)      
Stock based compensation (0) $ (0) 229 (0) 229
Dividend paid/ declared 0 0 (4,121) 0 (4,121)
Net loss (0) (0) (0) 861 861
Balance, at Mar. 31, 2019 $ (0) $ 1 518,077 (141,123) 376,955
Balance, shares at Mar. 31, 2019 0 13,728,371      
Balance, at Dec. 31, 2018 $ (0) $ 1 522,335 (141,984) 380,352
Balance, shares at Dec. 31, 2018 1,000 13,280,927      
Net loss         (15,689)
Balance, at Jun. 30, 2019 $ (0) $ 1 514,189 (157,673) $ 356,517
Balance, shares at Jun. 30, 2019 0       13,728,371
Balance, at Mar. 31, 2019 $ (0) $ 1 518,077 (141,123) $ 376,955
Balance, shares at Mar. 31, 2019 0 13,728,371      
Stock based compensation $ (0) $ (0) 231 (0) 231
Dividend paid/ declared 0 0 (4,119) 0 (4,119)
Net loss (0) (0) (0) (16,550) (16,550)
Balance, at Jun. 30, 2019 $ (0) 1 514,189 (157,673) $ 356,517
Balance, shares at Jun. 30, 2019 0       13,728,371
Balance, at Dec. 31, 2019 $ 2 521,275 (207,425) $ 313,852
Balance, shares at Dec. 31, 2019 0 15,873,391      
Stock based compensation $ (0) $ (0) 123 (0) 123
Continuous Offering Program (see Note 15) (0)   304   304
Continuous Offering Program program, shares   63,545      
Dividend paid/ declared 0 $ 0 (4,755) 0 (4,755)
Net loss (0) (0) (0) 869 869
Balance, at Mar. 31, 2020 $ (0) $ 2 516,947 (206,556) 310,393
Balance, shares at Mar. 31, 2020 0 15,936,936      
Balance, at Dec. 31, 2019 $ 2 521,275 (207,425) 313,852
Balance, shares at Dec. 31, 2019 0 15,873,391      
Net loss         31,886
Balance, at Jun. 30, 2020 $ (0) $ 2 512,905 (175,539) 337,368
Balance, shares at Jun. 30, 2020 0 16,089,890      
Balance, at Mar. 31, 2020 $ (0) $ 2 516,947 (206,556) 310,393
Balance, shares at Mar. 31, 2020 0 15,936,936      
Stock based compensation $ (0) $ (0) 123 (0) 123
Continuous Offering Program (see Note 15) (0)   644 (0) 644
Continuous Offering Program program, shares   152,954      
Dividend paid/ declared 0 $ 0 (4,809) 0 (4,809)
Net loss (0) (0) (0) 31,017 31,017
Balance, at Jun. 30, 2020 $ (0) $ 2 $ 512,905 $ (175,539) $ 337,368
Balance, shares at Jun. 30, 2020 0 16,089,890      
v3.20.2
Description of Organization and Business Operations
6 Months Ended
Jun. 30, 2020
Accounting Policies [Abstract]  
Business Description and Basis of Presentation [Text Block]

NOTE 1: DESCRIPTION OF ORGANIZATION AND BUSINESS OPERATIONS

 

 

Navios Maritime Acquisition Corporation (Navios Acquisition” or the “Company”) (NYSE: NNA) owns a large fleet of modern crude oil, refined petroleum product and chemical tankers providing world-wide marine transportation services. The Company’s strategy is to charter its vessels to international oil companies, refiners and large vessel operators under long, medium and short-term contracts. The Company is committed to providing quality transportation services and developing and maintaining long-term relationships with its customers. The operations of Navios Acquisition are managed by Navios Tankers Management Inc. (the “Manager”).

 

Navios Acquisition was incorporated in the Republic of the Marshall Islands on March 14, 2008. On July 1, 2008, Navios Acquisition completed its initial public offering (“IPO”). On May 28, 2010, Navios Acquisition consummated the vessel acquisition which constituted its initial business combination. Following such transaction, Navios Acquisition commenced its operations as an operating company.

 

On November 22, 2019, an agreement was reached to liquidate Navios Europe I. As a result of the liquidation, which was completed in December

2019 (“Liquidation of Navios Europe I”), Navios Acquisition acquired five vessel owning companies.

 

In October 2019, Navios Acquisition completed a registered direct offering of 1,875,000 shares of its common stock at $8.00 per share, raising gross proceeds of $15,000. Total net proceeds of the above transactions, net of agents’ costs of $675 and offering costs of $957, amounted to $13,368.

 

On November 29, 2019, Navios Acquisition entered into a Continuous Offering Program Sales Agreement for the issuance and sale from time to time shares of Navios Acquisition’s common stock having an aggregate offering price of up to $25,000. The sales were being made pursuant to a prospectus supplement as part of a shelf registration statement which was set to expire in December 2019. Navios Acquisition went effective on a new shelf registration statement which was declared effective on December 23, 2019. Accordingly, an updated Continuous Offering Program Sales Agreement (the “Sales Agreement”) was entered into on December 23, 2019. As before, the updated Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Acquisition and indemnification obligations of the parties thereto as well as certain termination rights for such parties. As of June 30, 2020, since the program commencement Navios Acquisition has issued 486,519 shares of common stock having received net proceeds of $3,047.

 

On April 21, 2020, an agreement was reached to liquidate Navios Europe II. As a result of the liquidation, which was completed in June 2020 (“Liquidation of Navios Europe II”), Navios Acquisition acquired seven vessel owning companies. The vessels are containerships and meet the criteria to be accounted for as held for sale.

 

As of June 30, 2020, Navios Maritime Holdings Inc. (“Navios Holdings”) had 30.2% of the voting power and 30.5% of the economic interest in Navios Acquisition.

 

As of June 30, 2020, Navios Acquisition had: 16,089,890 shares of common stock outstanding.

 

 

v3.20.2
Summary of Significant Accounting Policies
6 Months Ended
Jun. 30, 2020
Accounting Policies [Abstract]  
Significant Accounting Policies [Text Block]

NOTE 2: SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

 

(a) Basis of presentation:

The accompanying interim condensed consolidated financial statements are unaudited, but, in the opinion of management, reflect all adjustments for a fair statement of Navios Acquisition’s unaudited condensed consolidated balance sheets, statement of changes in equity, statements of operations and cash flows for the periods presented. The results of operations for the interim periods are not necessarily indicative of results for the full year. The footnotes are condensed as permitted by the requirements for interim financial statements and accordingly, do not include information and disclosures required under accounting principles generally accepted in the United States of America (“U.S. GAAP”) for complete financial statements. All such adjustments are deemed to be of a normal recurring nature. These interim financial statements should be read in conjunction with the Company’s consolidated financial statements and notes included in Navios Acquisition’s 2019 Annual Report filed on Form 20-F with the Securities and Exchange Commission (“SEC”).

 

 

 

(ab) Recent accounting pronouncements

 

In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting”, which provides guidance to alleviate the burden in accounting for reference rate reform by allowing certain expedients and exceptions in applying generally accepted accounting principles to contract modifications, hedging relationships, and other transactions impacted by reference rate reform. The provisions of ASU 2020-04 apply only to those transactions that reference LIBOR or another reference rate expected to be discontinued due to reference rate reform. Adoption of the provisions of ASU 2020-04 is optional and is effective from March 12, 2020 through December 31, 2022. The company is currently evaluating the impact of ASU 2020-04 on our condensed consolidated financial statements.

 

In August 2018, FASB issued ASU 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement”. This update modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for fiscal years beginning after December 15, 2019, and earlier adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In October 2018, FASB issued ASU 2018-17, Consolidation (Topic 810): “Targeted Improvements to Related Party Guidance for Variable Interest Entities” (“ASU 2018-17”). ASU 2018-17 provides that indirect interests held through related parties in common control arrangements should be considered on a proportional basis for determining whether fees paid to decision makers and service providers are variable interests. This is

consistent with how indirect interests held through related parties under common control are considered for determining whether a reporting entity must consolidate a Variable Interest Entity (“VIE). For Public business entities the amendments are effective for fiscal years beginning after December 15,

2019, and interim periods within those fiscal years. Early adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In January 2017, the FASB issued ASU No. 2017-04, Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill

Impairment. The ASU is effective for periods beginning after December 15, 2019, with an election to adopt early. The ASU requires only

a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value. It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The adoption of this new accounting guidance did not have a material effect on the Companys consolidated financial statements.

 

In June 2016, FASB issued ASU 2016-13, “Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments.” This standard requires entities to measure all expected credit losses of financial assets held at a reporting date based on historical experience, current conditions, and reasonable and supportable forecasts in order to record credit losses in a more timely matter. ASU 2016-13 also amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The standard is effective for interim and annual reporting periods beginning after December 15, 2019, although early adoption is permitted for interim and annual periods beginning after December 15, 2018. In November 2018, FASB issued ASU 2018-19 “Codification Improvements to topic 326, Financial Instruments-Credit Losses”. The amendments in this update clarify that operating lease receivables are not within the scope of ASC 326-20 and should instead be accounted for under the new leasing standard, ASC 842. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

(b) Principles of consolidation:

The accompanying consolidated financial statements include the accounts of Navios Acquisition, a Marshall Islands corporation, and its majority owned subsidiaries. All significant intercompany balances and transactions have been eliminated in the consolidated statements.

 

The Company also consolidates entities that are determined to be variable interest entities (“VIEs”) as defined in the accounting guidance, if it determines that it is the primary beneficiary. A variable interest entity is defined as a legal entity where either (a) equity interest holders as a group lack the characteristics of a controlling financial interest, including decision making ability and an interest in the entity’s residual risks and rewards, or (b) the equity holders have not provided sufficient equity investment to permit the entity to finance its activities without additional subordinated financial support, or (c) the voting rights of some investors are not proportional to their obligations to absorb the expected losses of the entity, their rights to receive the expected residual returns of the entity, or both and substantially all of the entity’s activities either involve or are conducted on behalf of an investor that has disproportionately few voting rights.

 

Based on internal forecasts and projections that take into account reasonably possible changes in Company’s trading performance, management believes that the Company has adequate financial resources to continue in operation and meet its financial commitments, including but not limited to capital expenditures and debt service obligations, for a period of at least twelve months from the date of issuance of these consolidated financial statements. Accordingly, the Company continues to adopt the going concern basis in preparing its financial statements.

 

(c) Equity method investments:

Affiliates are entities over which the Company generally has between 20% and 50% of the voting rights, or over which the Company has significant influence, but it does not exercise control. Investments in these entities are accounted for under the equity method of accounting. Under this method, the Company records an investment in the stock of an affiliate at cost, and adjusts the carrying amount for its share of the earnings or losses of the affiliate subsequent to the date of investment and reports the recognized earnings or losses in income. Dividends received from an affiliate reduce the carrying amount of the investment. The Company recognizes gains and losses in earnings for the issuance of shares by its affiliates, provided that the issuance of such shares qualifies as a sale of such shares. When the Company’s share of losses in an affiliate equals or exceeds its interest in the affiliate, the Company does not recognize further losses, unless the Company has incurred obligations or made payments on behalf of the affiliate.

 

Navios Acquisition evaluates its equity method investments, for other than temporary impairment, on a quarterly basis. Consideration is given to (1) the length of time and the extent to which the fair value has been less than the carrying value, (2) the financial condition and near-term prospects and (3) the intent and ability of the Company to retain its investments for a period of time sufficient to allow for any anticipated recovery in fair value.

 

(d) Subsidiaries:

Subsidiaries are those entities in which the Company has an interest of more than one half of the voting rights and/or otherwise has power to govern the financial and operating policies. The acquisition method of accounting is used to account for the acquisition of subsidiaries if deemed to be a business combination. The cost of an acquisition is measured as the fair value of the assets given up, shares issued or liabilities undertaken at the date of acquisition. The excess of the cost of acquisition over the fair value of the net assets acquired and liabilities assumed is recorded as goodwill.

 

 

As of June 30, 2020, the entities included in these consolidated financial statements were: 

                   

Navios Maritime Acquisition

Corporation and Subsidiaries:

  Nature  

Country of

Incorporation

  2020   2019  
Company Name                  
Aegean Sea Maritime Holdings Inc.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amorgos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Andros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antikithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antiparos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amindra Navigation Co.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Crete Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Folegandros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ikaria Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ios Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Kithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Mytilene Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Acquisition Corporation   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Finance (U.S.) Inc.   Co-Issuer   Delaware   1/1 – 6/30   1/1 – 6/30  
Rhodes Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Serifos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Loyalty Limited   Former Vessel-Owning Company(1)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Navigator Limited   Former Vessel-Owning Company(2)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sifnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skiathos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skopelos Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Syros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thera Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Oinousses Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Psara Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipsara Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samothrace Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thasos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Limnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skyros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alonnisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Makronisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Iraklia Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Paxos Shipping Corporation   Former Vessel-Owning Company(5)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipaxos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Donoussa Shipping Corporation   Former Vessel-Owning Company(6)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Schinousa Shipping Corporation   Former Vessel-Owning Company(7)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Europe Finance Inc   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kerkyra Shipping Corporation   Vessel-Owning Company(3)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Lefkada Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Zakynthos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Leros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kimolos Shipping Corporation   Former Vessel-Owning Company(13)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tilos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Delos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Agistri Shipping Corporation   Operating Subsidiary   Malta   1/1 – 6/30   1/1 – 6/30  
Olivia Enterprises Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Cyrus Investments Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Doxa International Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tzia Shipping Corp.   Vessel-Owning Company(10)   Marshall Is.   6/4 – 6/30    –   
Navios Maritime Midstream Partners GP LLC   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Operating LLC   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners L.P.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners Finance (US) Inc.   Co-borrower   Delaware   1/1 – 6/30   1/1 – 6/30  
Shinyo Kannika Limited   Former Vessel-Owning Company   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Ocean Limited   Former Vessel-Owning Company(11)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Saowalak Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Kieran Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Dream Limited   Former Vessel-Owning Company(12)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sikinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alkmene Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Persephone Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Rhea Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Aphrodite Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Dione Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Bole Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Boysenberry Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Brandeis Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Buff Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cadmium Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Celadon Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cerulean Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
                   

  

(1) Former vessel-owner of the Shinyo Splendor which was sold to an unaffiliated third party on May 6, 2014.

(2)       Former vessel-owner of the Shinyo Navigator which was sold to an unaffiliated third party on December 6, 2013.

(3)       Navios Midstream acquired all of the outstanding shares of capital stock of the vessel-owning subsidiary on March 29, 2018.

(4) Each company had the rights over a shipbuilding contract of an MR2 product tanker vessel. In February 2015, these shipbuilding contracts were terminated, with no exposure to Navios Acquisition, due to the shipyard’s inability to issue a refund guarantee.

(5) Former vessel-owner of the Nave Lucida which was sold to an unaffiliated third party on January 27, 2016.

(6) Former vessel-owner of the Nave Universe which was sold to an unaffiliated third party on October 4, 2016.

(7) Former vessel-owner of the Nave Constellation which was sold to an unaffiliated third party on November 15, 2016.

(8) Currently, vessel-operating company under a sale and leaseback transaction.

(9)  The vessel Shinyo Kannika was sold to an unaffiliated third party on March 22, 2018.

(10) Bareboat chartered-in vessels with purchase option, expected to be delivered in each of the fourth quarter of 2020, the first and the third quarters of 2021 and the second quarter of 2022.

(11) In March 2019, the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt was involved in a collision incident. The Company maintains insurance coverage for such types of events (subject to applicable deductibles and other customary limitations). In May 10, 2019, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

(12) On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750.

(13) On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

(14) In December 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers following the Liquidation of Navios Europe I.

(15) In June 2020, Navios Acquisition acquired seven vessel owning companies following the Liquidation of Navios Europe II.

 

 

 

 

 

 

(g) Assets / Liabilities associated with Assets Held for Sale

It is the Company’s policy to dispose of vessels and other fixed assets when suitable opportunities occur and not necessarily to keep them until the end of their useful life. The Company classifies assets and disposal groups as “being held for sale” when the following criteria are met: management has committed to a plan to sell the asset (disposal group); the asset (disposal group) is available for immediate sale in its present condition; an active program to locate a buyer and other actions required to complete the plan to sell the asset (disposal group) have been initiated; the sale of the asset (disposal group) is probable and transfer of the asset (disposal group) is expected to qualify for recognition as a completed sale within one year; the asset (disposal group) is being actively marketed for sale at a price that is reasonable in relation to its current fair value and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long-lived assets or disposal groups classified as held for sale are measured at the lower of their carrying amount or fair value less cost to sell. These assets are not depreciated once they meet the criteria to be held for sale.

 

(f) Revenue and Expense Recognition:

 

Revenue Recognition:

On January 1, 2018, the Company adopted the provisions of ASC 606, Revenue from Contracts with Customers (ASC

606). The guidance provides a unified model to determine how revenue is recognized. In doing so, the Company makes judgments including identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price, and allocating the transaction price to each performance obligation. Revenues are recognized to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. In determining the appropriate amount of revenue to be recognized as it fulfills its obligations under its agreements, the Company performs the following steps: (i) identification of the promised goods or services in the contract; (ii) determination of whether the promised goods or services are performance obligations, including whether they are distinct in the context of the contract; (iii) measurement of the transaction price, including the constraint on variable consideration; (iv) allocation of the transaction price to the performance obligations based on estimated selling prices; and (v) recognition of revenue when (or as) the Company satisfies each performance obligation.

 

In February 2016, the FASB issued ASU 2016-02, “Leases (Topic 842)” (“ASU 2016-02”). ASU 2016-02 will apply to both types of leases – capital (or finance) leases and operating leases. According to the new Accounting Standard, (a) lessees will be required to recognize assets and liabilities on the balance sheet for the rights and obligations created by all leases with terms of more than 12 months and (b) previous accounting standards for lessors will be updated to align certain requirements with the updates to lessee accounting standards and the revenue recognition accounting standards. ASU 2016 – 02 is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. Early application is permitted. In July 2018, the FASB issued ASU 2018-10, Codification Improvements to Topic 842 Leases (“ASU 2018-10”). The amendments in ASU 2018-10 affect narrow aspects of the guidance issued in the amendments in ASU 2016-02. For entities that early adopted Topic 842, the amendments are effective upon issuance of this Update, and the transition requirements are the same as those in Topic 842. For entities that have not adopted Topic 842, the effective date and transition requirements will be the same as the effective date and transition requirements in Topic 842. In addition in July 2018, the FASB issued ASU 2018-11, Targeted Improvements to Topic 842 Leases (“ASU 2018-11). The improvements in ASU 2018-11 provide for (a) an optional new transition method for adoption that results in initial recognition of a cumulative effect adjustment to retained earnings in the year of adoption and (b) a practical expedient for lessors, under certain circumstances, to combine the lease and non-lease components of revenues for presentation purposes.

 

 

The Company has elected to early adopt the requirements of ASU 2016-02 effective January 1, 2018, using the modified retrospective method which is consistent, with the approach the Company has elected under the new revenue standard, and elected to apply the additional optional transition method along with the following practical expedients: (i) a package of practical expedients which does not require the Company to reassess: (1) whether any expired or existing contracts are or contain leases; (2) lease classification for any expired or existing leases; and (3) whether initial direct costs for any expired or existing leases would qualify for capitalization under ASC 842; (ii) to account for non-lease components (primarily crew and maintenance services) of time charters as a single lease component as the timing and pattern of transfer of the non-lease components and associated lease component are the same, the lease components, if accounted for separately, would be classified as an operating lease, and such non-lease components are not predominant components of the combined component. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of adoption, there was no cumulative impact to the Company’s retained earnings at January 1, 2018.

 

The Company’s contract revenues from time chartering and pooling arrangements are governed by ASU 2016-02 “Leases”, which the Company early adopted on January 1, 2018. Upon adoption of ASC 606 and ASC 842, the timing and recognition of earnings from the pool arrangements and time charter contracts to which the Company is party did not change from previous practice. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of the adoption of these standards, there was no effect on the Company’s opening retained earnings, consolidated balance sheets and consolidated statements of income.

 

In December 2018, FASB issued ASU 2018-20, Leases (Topic 842), “Narrow-Scope Improvements for Lessors”: to clarify guidance for lessors on sales taxes and other similar taxes collected from lessees, certain lessor costs and recognition of variable payments for contracts with lease and non-lease components. The Company has early adopted the standard effective January 1, 2018 and is using that date as the date of initial application. The adoption of this guidance had no impact on the Company’s disclosures to the consolidated financial statements.

 

 

Revenue from time chartering

 

Revenues from time chartering of vessels are accounted for as operating leases and are thus recognized on a straight-line basis as the average revenue over the rental periods of such charter agreements, as service is performed. A time charter involves placing a vessel at the charterers’ disposal for a period of time during which the charterer uses the vessel in return for the payment of a specified daily hire rate. Under time charters, operating costs such as for crews, maintenance and insurance are typically paid by the owner of the vessel. Revenues from time chartering of vessels amounted to $74,824 and $41,143 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues from time chartering of vessels amounted to $129,166 and $88,735, respectively. The majority of revenue from time chartering is usually collected in advance.

 

 

Pooling arrangements

 

For vessels operating in pooling arrangements, the Company earns a portion of total revenues generated by the pool, net of expenses incurred by the pool. The amount allocated to each pool participant vessel, including the Company’s vessels, is determined in accordance with an agreed-upon formula, which are determined by the margins awarded to each vessel in the pool based on the vessel’s age, design and other performance characteristics. Revenue under pooling arrangements is accounted for as variable rate operating leases on the accrual basis and is recognized in the period in which the variability is resolved. The Company recognizes net pool revenue on a monthly and quarterly basis, when the vessel has participated in a pool during the period and the amount of pool revenue can be estimated reliably based on the pool report. The allocation of such net revenue may be subject to future adjustments by the pool however, such changes are not expected to be material. Revenue for vessels operating in pooling arrangements amounted to $16,682 and $13,430 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenue operating in pooling arrangements amounted to $39,358 and $32,596, respectively. The majority of revenue from pooling arrangements is usually collected through the month they are incurred.

 

 

Revenue from voyage contracts

 

The Company’s revenues earned under voyage contracts (revenues for the transportation of cargo) were previously recognized ratably over the estimated relative transit time of each voyage. A voyage was deemed to commence when a vessel was available for loading and was deemed to end upon the completion of the discharge of the current cargo. Under a voyage charter, a vessel is provided for the transportation of specific goods between specific ports in return for payment of an agreed upon freight per ton of cargo. Upon adoption of ASC 606, the Company recognizes revenue ratably from port of loading to when the charterer’s cargo is discharged as well as defer costs that meet the definition of “costs to fulfill a contract” and relate directly to the contract. Revenues earned under voyage contracts amounted to $0 and $3,639 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues under voyage contracts amounted to $9,713 and $9,678, respectively. Capitalized costs as of June 30, 2020 and December 31, 2019 related to costs to fulfill the contract amounted to $0 and $103, respectively, and are included under caption “Prepaid expenses and other current assets”. Accounts receivable, net, as of June 30, 2020 that related to voyage contracts was $1,910 (December 31, 2019: $12,219). The majority of revenue from voyage contracts is usually collected after the discharging takes place.

 

 

Revenue from profit sharing

 

Profit-sharing revenues are calculated at an agreed percentage of the excess of the charterer’s average daily income (calculated on a quarterly or half-yearly basis) over an agreed amount and accounted for on an accrual basis based on provisional amounts and for those contracts that provisional accruals cannot be made due to the nature of the profit share elements, these are accounted for on the actual cash settlement. Profit sharing for the three month periods ended June 30, 2020 and 2019 amounted to $20,718 and $373, respectively. For the six month periods ended June 30, 2020 and 2019, profit sharing revenues amounted to $31,844 and $4,695, respectively.

 

Revenues are recorded net of address commissions. Address commissions represent a discount provided directly to the charterers based on a fixed percentage of the agreed upon charter or freight rate. Since address commissions represent a discount (sales incentive) on services rendered by the Company and no identifiable benefit is received in exchange for the consideration provided to the charterer, these commissions are presented as a reduction of revenue.

 

 

Options to extend or terminate a lease

 

The Company’s vessels have the following options to extent or renew their charters:

     

Vessel

  Option
Hector N   Charterer’s option to extend the charter for one year at $15,800 net per day.
Nave Sextans   Charterer’s option to extend the charter for one year at $18,750 net per day.
Nave Pulsar   Charterer’s option to extend the charter for one year at $16,590 net per day plus ice-transit premium.

Nave Rigel

  Charterer has the option to charter the vessel for an optional year at a rate of $17,063 net per day.
Nave Cetus   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Equinox   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Aquila   Charterer's option to extend the charter for one year at $16,886 net per day
Nave Titan   Charterer's option to extend the charter for 30-90 days at $12,838 net per day with the last 30 days at $15,306 net per day
TBN 1   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.
TBN 2   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.

 

 

 

 

 

v3.20.2
Cash and Cash Equivalents And Restricted Cash
6 Months Ended
Jun. 30, 2020
Cash and Cash Equivalents [Abstract]  
Cash and Cash Equivalents Disclosure [Text Block]

NOTE 3: CASH AND CASH EQUIVALENTS AND RESTRICTED CASH

 

 

 

Cash and cash equivalents consisted of the following:

 

 

 

                 
    June 30, 2020     December 31, 2019  
Cash on hand and at banks   $ 67,718     $ 43,561  
Restricted cash     764       490  
Total cash, cash equivalents and restricted cash   $ 68,482     $ 44,051  

 

 

 

Cash deposits and cash equivalents in excess of amounts covered by government-provided insurance are exposed to loss in the event of non-performance by financial institutions. The Company does maintain cash deposits and equivalents in excess of government-provided insurance limits. The Company also minimizes exposure to credit risk by dealing with a diversified group of major financial institutions.

 

Restricted cash includes amounts held in retention accounts in order to service debt and interest payments, as required by certain of Navios Acquisition’s credit facilities.

 

 

v3.20.2
Inventories, Prepaid Expenses And Other Current Assets
6 Months Ended
Jun. 30, 2020
Deferred Costs, Capitalized, Prepaid, and Other Assets Disclosure [Abstract]  
Deferred Costs, Capitalized, Prepaid, and Other Assets Disclosure [Table Text Block]

NOTE 4: INVENTORIES, PREPAID EXPENSES AND OTHER CURRENT ASSETS

 

Inventories, prepaid expenses and other current assets consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Inventories   $ 5,440     $ 6,208  
Advances for working capital purposes     5,350       7,250  
Insurance claims     3,384       4,785  
Voyage charters deferred contract costs and other     969       791  
   
 
 
   
 
 
 
Total inventories, prepaid expenses and other current assets   $ 15,143     $ 19,034  
   
 
 
   
 
 
 

 

 

v3.20.2
Vessels, Net
6 Months Ended
Jun. 30, 2020
Property, Plant and Equipment [Abstract]  
Property, Plant and Equipment Disclosure [Text Block]

NOTE 5: VESSELS, NET

 

Vessels, Net 

  

                         

Vessels

  Cost     Accumulated
Depreciation
    Net Book
Value
 
Balance at December 31, 2018   $ 1,687,274     $ (303,669)     $ 1,383,605  
Additions/ (Depreciation)     102,637       (63,935)       38,702  
Disposals     (77,922)       11,153       (66,769)  
Impairment loss     (7,287)                (7,287)  
Balance at December 31, 2019   $ 1,704,702       (356,451)       1,348,251  
Additions/ (Depreciation)     3,654       (33,249)     (29,595)
Balance at June 30, 2020   $ 1,708,356     $ (389,700)     1,318,656  

 

Additions of vessels

 

2020

 

As of June 30, 2020, certain extraordinary fees and costs related to vessels’ regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation, amounted to $3,654 (see Note 13 — Transactions with related parties).

 

 

2019

 

As of December 31, 2019, certain extraordinary fees and costs related to vessels’ regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation, amounted to $18,207 (see Note 13 — Transactions with related parties).

 

During the quarter ended December 31, 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers for an acquisition cost of approximately $84,430 in total, following the Liquidation of Navios Europe I, through bank financing of $32,500 and $33,210 receivables (Please refer to Note 8 – Investments in Affiliates).

 

For each of the vessels purchased from Navios Europe I, the acquisition of all vessels was effected through the acquisition of all of the capital stock of the respective vessel-owning companies, which held the ownership and other contractual rights and obligations related to each of the acquired vessels, including the respective charter-out contracts. Management accounted for each acquisition as an asset acquisition under ASC 805. At the transaction date, the purchase price approximated the fair value of the assets acquired, which was determined based on a combination of methodologies including discounted cash flow analyses and independent valuation analyses.

 

 

Disposals of vessels

 

2019

 

On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750. The gain on sale of the vessel amounted to $651, which is included in “Gain on sale of vessels.

 

On May 10, 2019, following a collision incident, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

 

On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

 

 

Impairment loss

 

2019

 

During the year ended December 31, 2019 and as a result of the impairment review performed, it was determined that the carrying amount of one tanker was not recoverable and, therefore, an impairment loss of $7,287 was recognized.

 

 

v3.20.2
Intangible Assets Other Than Goodwill
6 Months Ended
Jun. 30, 2020
Goodwill and Intangible Assets Disclosure [Abstract]  
Intangible Assets Disclosure [Text Block]

NOTE 6: INTANGIBLE ASSETS OTHER THAN GOODWILL

 

 

On December 13, 2018, Navios Acquisition acquired, as part of the Merger, at fair value, the intangible assets of Navios Midstream, consisting of favorable lease terms.

 

Intangible assets as of June 30, 2020 and December 31, 2019 were $0.

 

On September 25, 2019, the U.S. Department of Treasury’s Office of Foreign Assets Control added, amongst others, COSCO Shipping Tanker (Dalian) Co., Ltd. (COSCO Dalian”) to the Specially Designated Nationals and Blocked Persons list after being determined by the State Department to meet the criteria for the imposition of sanctions under Executive Order 13846. The Company had two VLCCs chartered to COSCO Dalian, the Nave Constellation (ex. Shinyo Saowalak) and the Nave Universe (ex. Shinyo Kieran), through June 18, 2025 and June 8, 2026, respectively, each at a net rate of $48,153 per day, with profit sharing above $54,388. Subsequent to September 30, 2019 both charter contracts have been terminated and the two vessels are now employed in the open market.

 

COSCO Dalian was removed from the Specially Designated Nationals and Blocked Persons list on January 31, 2020.

 

Amortization expense of favorable lease terms for the three and six month periods ended June 30, 2020 and 2019 is presented in the following table:

 

                                 
    Three Month Period Ended     Six Month Period Ended  
    June 30,
2020
    June 30,
2019
    June 30,
2020
    June 30,
2019
 
Favorable lease terms charter-out   $ —       $ (1,319   $ —       $ (2,639
Total   $ —       $ (1,319   $ —       $ (2,639

 

 

 

v3.20.2
Assets/ Liabilities Associated with Assets Held for Sale
6 Months Ended
Jun. 30, 2020
Property, Plant and Equipment [Abstract]  
Disclosure of Long Lived Assets Held-for-sale [Table Text Block]

NOTE 7: ASSETS/ LIABILITIES ASSOCIATED WITH ASSETS HELD FOR SALE

 

 

Following the Liquidation of Navios Europe II (Note 8) on June 29, 2020, Navios Acquisition acquired seven vessel owning companies. For each of the vessels purchased from Navios Europe II, the acquisition of all vessels was effected through the acquisition of all of the capital stock of the respective vessel-owning companies, which held the ownership and other contractual rights and obligations related to each of the acquired vessels, including the respective charter-out contracts. Management accounted for each acquisition as an asset acquisition under ASC 805. At the transaction date, the purchase price approximated the fair value of the assets acquired, which was determined based on a combination of methodologies including discounted cash flow analyses and independent valuation analyses.

 

 

Upon acquisition of the vessel owning companies, the Company assessed that all the held for sale criteria were met for their assets, mainly consisting of the vessels owned and reviewed the carrying amount in connection with their fair market value less any costs to sell. The review indicated that such carrying amounts were not in excess of the fair value less any costs to sell. Therefore, no loss was recorded in the accompanying condensed consolidated statement of income. Furthermore, liabilities associated with the assets held for sale are separately presented under Liabilities associated with assets held for sale in the accompanying condensed consolidated balance sheet. The major class of assets held for sale consist of the carrying value of the vessels amounting to $79,080. The major class of liabilities associated with assets held for sale, consist of their respective debt with a carrying amount of $41,700. Please refer to Note 11 “Borrowings”.

 

 

 

v3.20.2
Investment in Affiliates
6 Months Ended
Jun. 30, 2020
Investments in and Advances to Affiliates [Abstract]  
Investments in and Advances to Affiliates [Table Text Block]

NOTE 8: INVESTMENT IN AFFILIATES

 

 

Navios Europe I

 

On October 9, 2013, Navios Holdings, Navios Acquisition and Navios Maritime Partners L.P. (“Navios Partners”) established Navios Europe I and had economic interests of 47.5%, 47.5% and 5.0%, respectively. On December 18, 2013, Navios Europe I acquired ten vessels for aggregate consideration consisting of (i) cash which was funded with the proceeds of senior loan facility (the “Senior Loan I”) and loans aggregating $10,000 from Navios Holdings, Navios Acquisition and Navios Partners (collectively, the “Navios Term Loans I) and (ii) the assumption of a junior participating

loan facility (the “Junior Loan I”). In addition to the Navios Term Loans I, Navios Holdings, Navios Acquisition and Navios Partners agreed to make available to Navios Europe I revolving loans up to $24,100 to fund working capital requirements (collectively, the “Navios Revolving Loans I”). In December 2018, the availability under the Revolving Loans I was increased by $30,000. Effective November 2014 and through the Liquidation completed in December 2019, Navios Holdings, Navios Acquisition and Navios Partners had a voting interest of 50%, 50% and 0%, respectively.

 

On an ongoing basis, Navios Europe I was required to distribute cash flows (after payment of operating expenses, amounts due pursuant to the terms of the Senior Loan I and repayments of the Navios Revolving Loans I) according to a defined waterfall calculation.

 

Following the Liquidation of Navios Europe I, Navios Acquisition acquired five vessel owning companies for an acquisition cost of approximately $84,627 in total.

 

As of June 30, 2020 and December 31, 2019 and subsequent to the Liquidation of Navios Europe I, the Company had no exposure.

 

For the three month period ended June 30, 2019 income recognized in “Equity in net earnings of affiliated companies” was $297. For the six month period ended June 30, 2019 income recognized in “Equity in net earnings of affiliated companies” was $583.

 

 

 

Navios Europe II

 

On February 18, 2015, Navios Holdings, Navios Acquisition and Navios Partners established Navios Europe II Inc. and had in such entity economic interests of 47.5%, 47.5% and 5.0%, respectively, and voting interests of 50.0%, 50.0% and 0%, respectively. From June 8, 2015 through December 31, 2015, Navios Europe II acquired fourteen vessels for: (i) cash consideration of $145,550 (which was funded with the proceeds of $131,550 of senior loan facilities (the “Senior Loans II”) and loans aggregating $14,000 from Navios Holdings, Navios Acquisition and Navios Partners (collectively, the “Navios Term Loans II); and (ii) the assumption of a junior participating loan facility (the “Junior Loan II”) with a face amount of $182,150 and fair value of $99,147. In addition to the Navios Term Loans II, Navios Holdings, Navios Acquisition and Navios Partners agreed to make available to Navios Europe II revolving loans up to $57,500 to fund working capital requirements (collectively, the “Navios Revolving Loans II”). On April 21, 2020, Navios Europe II agreed with the lender to fully release the liabilities under the junior participating loan facility for $5,000.

 

On an ongoing basis, Navios Europe II was required to distribute cash flows (after payment of operating expenses, amounts due pursuant to the terms of the Senior Loans and repayments of the Navios Revolving Loans II) according to a defined waterfall calculation.

 

As of June 30, 2020 and subsequent to the Liquidation of Navios Europe II, the Company had no exposure. As of December 31, 2019, the estimated maximum potential loss by Navios Acquisition in Navios Europe II was $51,558, which represented the Company’s carrying value of the investment of $6,650, the Company’s balance of the Navios Revolving Loans II including accrued interest on the Navios Term Loans II of $28,220, which was included under “Due from related parties, long-term”, and the accrued interest income on the Navios Revolving Loans II in the amount of $16,688, which is included under “Due from related parties, short-term”. Refer to Note 13 for the terms of the Navios Revolving Loans II.

 

The decline in the fair value of the investment was considered as other-than-temporary and, therefore, an aggregate loss of $13,900 was recognized and included in the accompanying condensed consolidated statements of income for the three month period ended March 31, 2020, and the six month period ended June 30, 2020, as "Impairment of receivable in affiliated company/ Equity in net earnings of affiliated companies." The fair value of the Company's investment was determined based on the liquidation value of Navios Europe II, determined on the individual fair values assigned to the assets and liabilities of Navios Europe II.

 

For the three month periods ended June 30, 2020 and 2019 income recognized in “Equity in net earnings of affiliated companies” was $0 and $592, respectively. For the six month periods ended June 30, 2020 and 2019 income/ loss recognized in “Impairment of receivable in affiliated company / Equity in net earnings of affiliated companies” was $13,900 and $1,151, respectively.

 

 

v3.20.2
Dividends Payable
6 Months Ended
Jun. 30, 2020
Dividends Payable  
DIVIDENDS PAYABLE

NOTE 9: DIVIDENDS PAYABLE

 

 

On January 22, 2020, the Board of Directors declared a quarterly cash dividend in respect of the fourth quarter of 2019 of $0.30 per share of common stock which was paid on April 7, 2020 to stockholders of record as of March 5, 2020.

 

On April 29, 2020, the Board of Directors declared a quarterly cash dividend in respect of the first quarter of 2020 of $0.30 per share of common stock which was paid on July 9, 2020 to stockholders of record as of June 3, 2020

 

The declaration and payment of any further dividends remain subject to the discretion of the Board of Directors and will depend on, among other things, Navios Acquisitions cash requirements as measured by market opportunities and restrictions under its credit agreements and other debt obligations and such other factors as the Board of Directors may deem advisable.

 

 

v3.20.2
Accrued Expenses
6 Months Ended
Jun. 30, 2020
Accrued Expenses  
[custom:AccruedLiabilitiesDisclosureTextBlock]

NOTE 10: ACCRUED EXPENSES

 

 

Accrued expenses as of June 30, 2020 and December 31, 2019 consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Accrued voyage expenses   $ 2,052     $ 2,643  
Accrued loan interest     8,286       10,468  
Accrued legal and professional fees     3,740       1,226  
Total accrued expenses   $ 14,078     $ 14,337  

 

 

v3.20.2
Borrowings
6 Months Ended
Jun. 30, 2020
Debt Disclosure [Abstract]  
Debt Disclosure [Text Block]

NOTE 11: BORROWINGS

 

 

 

                 
    June 30,
2020
    December 31,
2019
 
Eurobank Ergasias S.A. $52,000           28,758  
DVB Bank S.E. and Credit Agricole Corporate and Investment Bank     37,891       39,453  
Ship Mortgage Notes $670,000     658,000       658,000  
Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB     19,065       39,173  
BNP Paribas $44,000     26,000       28,000  
HSH $24,000     17,135       18,280  
HCOB $31,800     30,108       31,800  
Deutsche Bank AG Filiale Deutschlandgeschäft           32,500  
Eurobank S.A. $20,800     20,800           
Total credit facilities     808,999       875,964  
Sale and Leaseback Agreements–$71,500     58,094       62,563  
Sale and Leaseback Agreements–$103,155     93,189       97,723  
Sale and Leaseback Agreements–$15,000     13,281       14,219  
Sale and Leaseback Agreements–$47,220     43,133       45,858  
Sale and Leaseback Agreements–$90,811     85,158       90,811  
Sale and Leaseback Agreements–$72,053     72,053           
Total borrowings     1,173,907       1,187,138  
Less: Deferred finance costs, net     (13,318)     (14,638)  
Add: bond premium     445       617  
Less: current portion of credit facilities, net of deferred finance costs     (61,261)     (141,214)  
Less: current portion of Sale and Leaseback Agreements, net of deferred finance costs     (38,695)     (31,739)  
Total long-term borrowings, net of current portion, bond premium and deferred finance costs   $ 1,061,078     $ 1,000,164  

 

 

 

 

Long-Term Debt Obligations and Credit Arrangements

 

Ship Mortgage Notes:

 

8 1/8% First Priority Ship Mortgages: On November 13, 2013, the Company and its wholly owned subsidiary, Navios Acquisition Finance (US) Inc. (“Navios Acquisition Finance” and together with the Company, the “2021 Co-Issuers”) issued $610,000 in first priority ship mortgage notes (the “Existing Notes”) due on November 15, 2021 at a fixed rate of 8.125%.

 

On March 31, 2014, the Company completed a sale of $60,000 of its first priority ship mortgage notes due in 2021 (the “Additional Notes,” and together with the Existing Notes, the “2021 Notes”). The terms of the Additional Notes are identical to the Existing Notes and were issued at 103.25% plus accrued interest from November 13, 2013.

 

The 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of Navios Acquisitions subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries.

 

The 2021 Co-Issuers currently have the option to redeem the 2021 Notes in whole or in part, at a fixed price of 106.094% of the principal amount, which price declines ratably until it reaches par in 2019, plus accrued and unpaid interest, if any.

 

In addition, upon the occurrence of certain change of control events, the holders of the 2021 Notes will have the right to require

the 2021 Co-Issuers to repurchase some or all of the 2021 Notes at 101% of their face amount, plus accrued and unpaid interest to the repurchase date.

 

The 2021 Notes contain covenants which, among other things, limit the incurrence of additional indebtedness, issuance of certain preferred stock, the payment of dividends, redemption or repurchase of capital stock or making restricted payments and investments, creation of certain liens, transfer or sale of assets, entering in transactions with affiliates, merging or consolidating or selling all or substantially all of the 2021 Co-Issuers’ properties and assets and creation or designation of restricted subsidiaries.

 

Following the acquisition of the Star N and the Hector N MR1 product tankers from Navios Europe I, the vessels were offered as collateral under its ship mortgage notes, in substitution of an amount of $25,405 that was held as cash collateral from the sale proceeds of the Nave Electron.

 

In the fourth quarter of 2019, Navios Acquisition repurchased $12,000 of its ship mortgage notes for a cash consideration of $9,950 resulting in a gain on bond repurchase of $1,940 net of deferred fees written-off.

 

The 2021 Co-Issuers were in compliance with the covenants as of June 30, 2020.

 

The Existing Notes and the Additional Notes are treated as a single class for all purposes under the indenture including, without limitation, waivers, amendments, redemptions and other offers to purchase and the Additional Notes rank evenly with the Existing Notes. The Additional Notes and the Existing Notes have different CUSIP numbers.

 

Guarantees

The Company’s 2021 Notes are fully and unconditionally guaranteed on a joint and several basis by all of the Company’s subsidiaries with the exception of Navios Acquisition Finance (a co-issuer of the 2021 Notes) and the exception of Navios Midstream subsidiaries. The Company’s 2021 Notes are unregistered. The guarantees of the Company’s subsidiaries that own mortgaged vessels are senior secured guarantees and the guarantees of Company’s subsidiaries that do not own mortgaged vessels are senior unsecured guarantees. All subsidiaries, including Navios Acquisition Finance and Navios Midstream subsidiaries are 100% owned. Navios Acquisition does not have any independent assets or operations.

 

 

Credit Facilities

 

As of June 30, 2020, the Company had secured credit facilities with various commercial banks with a total outstanding balance of $150,999.

 

On December 6, 2010, Navios Acquisition entered into a loan agreement with Eurobank Ergasias S.A. of up to $52,000 out of which $46,200 has been drawn (divided into two tranches of $23,100 each) to partially finance the acquisition costs of two LR1 product tanker vessels. Each tranche of the facility was repayable in 32 equal quarterly installments of $306 each with a final balloon payment of $13,308, to be repaid on the last repayment date. The maturity date of the loan was in the third and fourth quarter of 2020. The repayment of each tranche started three months after the delivery date of the respective vessel. It bore interest at a rate of LIBOR plus 300 bps. The loan also required compliance with certain financial covenants. The outstanding balance under the facility of amount of $27,534 was fully prepaid in June 2020. Following the prepayment, an amount of $50 was written-off in the consolidated statement of operations.

 

In November 2015, Navios Acquisition, entered into a term loan facility of up to $125,000 (divided into five tranches) with Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB for the: (i) financing of the purchase price of the Nave Spherical; and (ii) the refinancing of the existing facility with Deutsche Bank AG Filiale Deutschlandgescäft and Skandinaviska Enskilda Banken AB, dated July 18, 2014. Four of the five tranches of the facility are repayable in 20 quarterly installments of between approximately $435 and $1,896, each with a final balloon repayment to be made on the last repayment date. The fifth tranche is repayable in 16 quarterly installments of between approximately $709 and $803, each. The maturity date of the loan is in the fourth quarter of 2020. The credit facility bears interest at LIBOR plus 295 bps per annum. On March 23, 2018, Navios Acquisition prepaid $26,770, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Equinox and the Nave Pyxis, which substituted the Nave Galactic as collateral vessels under the 8 1/8% 2021 Notes. Following the prepayment, an amount of $297 was written-off in the consolidated statement of operations. On June 18, 2020, Navios Acquisition prepaid $16,272, being the respective tranche of the Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB facility that was drawn to finance the Nave Sextans. Following the prepayment, an amount of $26 was written-off in the consolidated statement of operations. As of June 30, 2020, the outstanding balance under this facility was $19,065.

 

In December 2019, Navios Acquisition entered into a loan agreement with Deutsche Bank AG Filiale Deutschlandgeschäft of up to $32,500 in order to finance one MR1 and two LR1s acquired from Navios Europe I. The facility was repayable in one single repayment on the last repayment date. The facility matured in June 2020 and bore interest at LIBOR plus 400 bps per annum. In the second quarter of 2020, Navios Acquisition fully repaid the amount of $32,500.

 

In June 2020, Navios Acquisition entered into a loan agreement with Eurobank S.A. of $20,800 in order to refinance two LR1s. The facility is repayable in 16 quarterly installments of $800 each with a final balloon payment of $8,000 repayable on the last repayment date. The facility matures in June 2024 and bears interest at LIBOR plus 300 bps per annum. As of June 30, 2020, an amount of $20,800 was outstanding under this facility.

 

In June 2020, Navios Acquisition entered into a loan agreement with Hamburg Commercial Bank AG of $41,700 in order to acquire seven containerships. The facility is repayable in 4 quarterly installments with a final balloon payment of $21,700 repayable on the last repayment date. The facility matures in May 2021 and bears interest at LIBOR plus 375 bps per annum. As of June 30, 2020, an amount of $41,700 was outstanding under this facility and is presented under “Liabilities associated with assets held for sale”. (Please refer to Note 7)

 

Amounts drawn under the facilities are secured by first preferred mortgages on Navios Acquisition’s vessels and other collateral and are guaranteed by each vessel-owning subsidiary. The credit facilities contain a number of restrictive covenants that prohibit or limit Navios Acquisition from, among other things: incurring or guaranteeing indebtedness; entering into affiliate transactions; changing the flag, class, management or ownership of Navios Acquisition’s vessels; changing the commercial and technical management of Navios Acquisition’s vessels; selling Navios Acquisition’s vessels; and subordinating the obligations under each credit facility to any general and administrative costs relating to the vessels, including the fixed daily fee payable under the Management Agreement. The credit facilities also require Navios Acquisition to comply with the ISM Code and ISPS Code and to maintain valid safety management certificates and documents of compliance at all times.

 

As of June 30, 2020 no amount was available to be drawn from the Company’s facilities.

 

 

Sale and Leaseback Agreements

 

 

As of June 30, 2020, the Company had sale and leaseback agreements with various unrelated third parties with a total outstanding balance of $364,908.

 

As of June 30, 2020 and December 31, 2019, the deposits under the sale and leaseback agreements were $9,058 and $5,456, respectively, and are presented under “Other long term assets” in the condensed consolidated balance sheets.

 

In June 2020, Navios Acquisition entered into sale and leaseback agreements with unrelated third parties for $72,053 in order to refinance one MR1, one MR2 and two LR1s. Navios Acquisition has a purchase obligation to acquire the vessels at the end of the lease term and under ASC 842-40, the transaction was determined to be a failed sale. The agreements will be repaid through periods ranging from four to seven years in consecutive quarterly installments of $1,791 each, with a repurchase obligation of up to $26,963 in total. The sale and leaseback arrangements bear interest at LIBOR plus a margin ranging from 390 bps to 410 bps per annum, depending on the vessel financed. As of June 30, 2020, the outstanding balance under the agreements was $72,053.

 The maturity table below reflects the principal payments of all notes, credit facilities and the Financing arrangements outstanding as of June 30, 2020 for the next five years and thereafter are based on the repayment schedule of the respective financing arrangements (as described above) and the outstanding amount due under the 2021 Notes.

  

  

         
    June 30,
2020
 
Long-Term Debt Obligations:        
12 month period ending      
June 30, 2021   102,608    
June 30, 2022   757,620    
June 30, 2023   67,364    
June 30, 2024   92,908    
June 30, 2025   32,144    
June 30, 2026 and thereafter   121,263    
Total $ 1,173,907    

 

 

The financing arrangements include, among other things, compliance with loan to value ratios and certain financial covenants: (i) minimum liquidity at the higher of $40,000 or $1,000 per vessel; (ii) net worth ranging from $50,000 to $135,000; and (iii) total liabilities divided by total assets, adjusted for market values to be generally lower than 75% or 80% and for certain facilities, as amended for a specific period of time until December 31, 2019 to be ranging from a maximum of 80% to 85%. It is an event of default under the credit facilities if such covenants are not complied with, including the loan to value ratios for which the Company may provide sufficient additional security or prepay part of the facility, to prevent such an event.

 

As of June 30, 2020, the Company was in compliance with its covenants.

 

 

v3.20.2
Fair Value of Financial Instruments
6 Months Ended
Jun. 30, 2020
Fair Value Disclosures [Abstract]  
Fair Value Disclosures [Text Block]

NOTE 12: FAIR VALUE OF FINANCIAL INSTRUMENTS

Fair Value of Financial Instruments

The following methods and assumptions were used to estimate the fair value of each class of financial instruments:

 

Cash and cash equivalents: The carrying amounts reported in the consolidated balance sheets for interest bearing deposits approximate their fair value because of the short maturity of these investments.

 

Restricted Cash: The carrying amounts reported in the consolidated balance sheets for interest bearing deposits approximate their fair value because of the short maturity of these investments.

 

Accounts receivable, net: Carrying amounts are considered to approximate fair value due to the short-term nature of these accounts receivables and no significant changes in interest rates. All amounts that are assumed to be uncollectible are written-off and/or reserved.

 

Accounts payable: The carrying amount of accounts payable reported in the balance sheet approximates its fair value due to the short-term nature of these accounts payable and no significant changes in interest rates.

 

 

Due from related parties, long-term: The carrying amount of due from related parties, long-term reported in the balance sheet approximates its fair value.

 

Other long-term debt, net of deferred finance costs: As a result of the adoption of ASU 2015-03, the book value has been adjusted to reflect the net presentation of deferred financing costs. The outstanding balance of the floating rate loans continues to approximate its fair value, excluding the effect of any deferred finance costs.

 

Ship Mortgage Notes and premiums: The fair value of the 2021 Notes, which has a fixed rate, was determined based on quoted market prices, as indicated in the table below.

.

 

 

    June 30, 2020     December 31, 2019  
    Book Value     Fair Value     Book Value     Fair Value  
Cash and cash equivalents   $ 67,718     $ 67,718     $ 43,561     $ 43,561  
Restricted cash   $ 764     $ 764     $ 490     $ 490  
Accounts receivable   $ 29,563     $ 29,563     $ 34,235     $ 34,235  
Accounts payable   $ 9,776     $ 9,776     $ 15,355     $ 15,355  
Ship mortgage notes and premium   $ 654,694     $ 382,186     $ 653,614     $ 527,005  
Other long-term debt, net of deferred finance costs   $ 506,340     $ 515,907     $ 519,503     $ 529,138  
Due from related parties, long-term   $ 14,658     $ 14,658     $ 42,878     $ 42,878  

 

Fair Value Measurements

 

The estimated fair value of the financial instruments that are not measured at fair value on a recurring basis, categorized based upon the fair value hierarchy, is as follows:

 

Level I: Inputs are unadjusted, quoted prices for identical assets or liabilities in active markets that we have the ability to access. Valuation of these items does not entail a significant amount of judgment.

 

Level II: Inputs other than quoted prices included in Level I that are observable for the asset or liability through corroboration with market data at the measurement date.

 

Level III: Inputs that are unobservable. The Company did not use any Level III inputs as of June 30, 2020 and December 31, 2019.

 

 

                                 
    Fair Value Measurements at June 30, 2020 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 67,718     $ 67,718     $ —       $ —    
Restricted cash   $ 764     $ 764     $ —       $ —    
Accounts receivable   $ 29,563     $ 29,563     $ —       $ —    
Accounts payable   $ 9,776     $ 9,776     $ —       $ —    
Ship mortgage notes and premium   $ 382,186     $   382,186     $ —       $ —    
Other long-term debt(1)   $   515,907     $        $   515,907     $ —    
Due from related parties, long-term(2)   $ 14,658     $        $ 14,658     $ —    

 

                                 
    Fair Value Measurements at December 31, 2019 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 43,561     $ 43,561     $ —       $ —    
Restricted cash   $ 490     $ 490     $ —       $ —    
Accounts receivable   $ 34,235     $ 34,235     $ —       $ —    
Accounts payable   $ 15,355     $ 15,355     $ —       $ —    
Ship mortgage notes and premium   $ 527,005     $ 527,005     $ —       $ —    
Other long-term debt(1)   $ 529,138     $        $ 529,138     $ —    
Due from related parties, long-term(2)   $ 42,878     $        $ 42,878     $ —    

 

(1) The fair value of the Company’s other long-term debt is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the Company’s creditworthiness.
(2) The fair value of the Company’s long term amounts due from related parties is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the counterparty’s creditworthiness.

 

 

 

 

v3.20.2
Transactions with Related Parties
6 Months Ended
Jun. 30, 2020
Related Party Transactions [Abstract]  
Related Party Transactions Disclosure [Text Block]

NOTE 13: TRANSACTIONS WITH RELATED PARTIES

 

 

 

Vessel operating expenses (management fees): Pursuant to the management agreement with the Manager (the “Management Agreement”) dated May 28, 2010 and as amended in May 2012, May 2014, May 2016 and May 2018, the Manager provided commercial and technical management services to Navios Acquisition’s vessels for a fixed daily fee of: (a) $6.5 per MR2 product tanker and chemical tanker vessel; (b) $7.15 per LR1 product tanker vessel; and (c) the current daily fee of $9.5 per VLCC, through May 2020.

 

Following the Merger with Navios Midstream, completed on December 13, 2018, the Management Agreement also covers vessels acquired in the Merger.

 

In August 2019, Navios Acquisition extended the duration of its existing Management Agreement with the Manager until January 1, 2025, to be automatically renewed for another five years. In addition management fees are fixed for two years commencing from January 1, 2020 at: (a) $6.8 per day per MR2 product tanker and chemical tanker vessel; (b) $7.23 per day per LR1 product tanker vessel; and (c) $9.7 per day per VLCC. The agreement also provides for a technical and commercial management fee of $0.05 per day per vessel and an annual increase of 3% for the remaining period unless agreed otherwise and provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Management Agreement is terminated on or before December 31, 2024.

 

Following the Liquidation of Navios Europe I in December 2019, Navios Acquisition acquired three MR1 product tankers and two LR1 product tankers. As per the Management Agreement as amended in December 2019, management fees are fixed for two years commencing from January 1, 2020 at: (a) $6.8 per day per MR1 product tanker; and (b) $7.23 per day per LR1 product tanker vessel. The agreement also provides for a technical and commercial management fee of $0.05 per day per vessel and an annual increase of 3% after January 1, 2022 for the remaining period unless agreed otherwise.

 

 

 Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containers on June 29, 2020. As per the amendment to the Management Agreement dated June 26, 2020, the management fees are fixed at: (a) $5.3 per day per Container vessel of 1,500 TEU up to 1,999 TEU; and (b) $6.1 per day per Container vessel of 2,000 TEU up to 3,450 TEU.

 

Drydocking expenses are reimbursed at cost for all vessels.

 

For the six month periods ended June 30, 2020 and 2019 certain extraordinary fees and costs related to regulatory requirements, including ballast water treatment system installation and exhaust gas cleaning system installation and under Company’s Management Agreement amounted to $3,654 and $5,563, respectively, and are presented under “Container vessel owning companies acquisition/ vessels improvements” in the condensed Consolidated Statements of Cash Flows. (Please refer to Note 5)

 

Total vessel operating expenses for the three month periods ended June 30, 2020 and 2019 amounted to $29,836 and $26,481, respectively. Total vessel operating expenses for the six month periods ended June 30, 2020 and 2019 amounted to $59,673 and $54,387, respectively.

 

General and administrative expenses: On May 28, 2010, Navios Acquisition entered into an Administrative Services Agreement with the Manager, pursuant to which the Manager provides certain administrative management services to Navios Acquisition which include: bookkeeping, audit and accounting services, legal and insurance services, administrative and clerical services, banking and financial services, advisory services, client and investor relations and other services. The Manager is reimbursed for reasonable costs and expenses incurred in connection with the provision of these services. In May 2014, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager, until May 2020.

 

Following the Merger with Navios Midstream, completed on December 13, 2018, the Administrative Services Agreement covered the vessels acquired.

 

In August 2019, Navios Acquisition extended the duration of its existing Administrative Services Agreement with the Manager until January 1, 2025, to be automatically renewed for another five years. The agreement also provides for payment of a termination fee, equal to the fees charged for the full calendar year preceding the termination date, by Navios Acquisition in the event the Administrative Services Agreement is terminated on or before December 31, 2024.

 

Following the Liquidation of Navios Europe I in December 2019, Navios Acquisition acquired three MR1 product tankers and two LR1 product tankers. The Administrative Services Agreement also covers the vessels acquired.

 

Following the Liquidation of Navios Europe II, Navios Acquisition acquired seven containers on June 29, 2020. The Administrative Services Agreement also covers the vessels acquired.

 

For each of the three month periods ended June 30, 2020 and 2019 the expense arising from administrative services rendered by the Manager amounted to $2,985 and $2,761, respectively. For each of the six month periods ended June 30, 2020 and 2019 the expense arising from administrative services rendered by the Manager amounted to $5,987 and $5,626, respectively.

 

Balance due from/ (to) related parties (exluding Navios Europe II): Balance due from related parties (both short and long-term) as of June 30, 2020, was $16,697 (December 31, 2019: $14,658) and balance due to related parties as of June 30, 2020 was $0 (December 31, 2019:$32,150). The balances mainly consisted of administrative expenses, costs related to regulatory requirements including ballast water treatment system, special survey and dry docking expenses, as well as operating expenses and working capital deposits, in accordance with the Management Agreement. The balance due from related parties excludes the amount of the working capital deposits, in accordance with the Management Agreement of $1,845 for the seven containerships acquired after the liquidation of Navios Europe II. The amount of $1,845 million is included under “Assets held for sale” in the condensed consolidated balance sheets.

 

Navios Midstream Merger Agreement: On December 13, 2018, Navios Acquisition completed the Merger contemplated by the Merger Agreement, dated as of October 7, 2018, by and among Navios Acquisition, its direct wholly-owned subsidiary Merger Sub, Navios Midstream and NAP General Partner. Pursuant to the Merger Agreement, Merger Sub merged with and into Navios Midstream, with Navios Midstream surviving as a wholly-owned subsidiary of Navios Acquisition.

 

 

Omnibus Agreements

 

Acquisition Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Acquisition Omnibus Agreement”) with Navios Holdings and Navios Partners in connection with the closing of Navios Acquisition’s initial vessel acquisition, pursuant to which, among other things, Navios Holdings and Navios Partners agreed not to acquire, charter-in or own liquid shipment vessels, except for container vessels and vessels that are primarily employed in operations in South America without the consent of an independent committee of Navios Acquisition. In addition, Navios Acquisition, under the Acquisition Omnibus Agreement, agreed to cause its subsidiaries not to acquire, own, operate or charter-in drybulk carriers under specific exceptions. Under the Acquisition Omnibus Agreement, Navios Acquisition and its subsidiaries grant to Navios Holdings and Navios Partners a right of first offer on any proposed sale, transfer or other disposition of any of its drybulk carriers and related charters owned or acquired by Navios Acquisition. Likewise, Navios Holdings and Navios Partners agreed to grant a similar right of first offer to Navios Acquisition for any liquid shipment vessels they might own. These rights of first offer will not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the existing terms of any charter or other agreement with a counterparty; or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third party.

 

Midstream Omnibus Agreement: Navios Acquisition entered into an omnibus agreement (the “Midstream Omnibus Agreement”), with Navios Midstream, Navios Holdings and Navios Partners in connection with the Navios Midstream IPO, pursuant to which Navios Acquisition, Navios Midstream, Navios Holdings, Navios Partners and their controlled affiliates generally have agreed not to acquire or own any VLCCs, crude oil tankers, refined petroleum product tankers, liquefied petroleum gas (“LPG”) tankers or chemical tankers under time charters of five or more years without the consent of the Navios Midstream General Partner. The Midstream Omnibus Agreement contains significant exceptions that have allowed Navios Acquisition, Navios Holdings, Navios Partners or any of their controlled affiliates to compete with Navios Midstream under specified circumstances.

 

Under the Midstream Omnibus Agreement, Navios Midstream and its subsidiaries have granted to Navios Acquisition a right of first offer on any proposed sale, transfer or other disposition of any of its VLCCs or any crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers and related charters owned or acquired by Navios Midstream. Likewise, Navios Acquisition have agreed (and will cause its subsidiaries to agree) to grant a similar right of first offer to Navios Midstream for any of the VLCCs, crude oil tankers, refined petroleum product tankers, LPG tankers or chemical tankers under charter for five or more years it might own. These rights of first offer do not apply to a: (a) sale, transfer or other disposition of vessels between any affiliated subsidiaries, or pursuant to the terms of any charter or other agreement with a charter party, or (b) merger with or into, or sale of substantially all of the assets to, an unaffiliated third-party.

 

Navios Containers Omnibus Agreement: In connection with the Navios Maritime Containers Inc. (“Navios Containers”) private placement and listing on the Norwegian over-the-counter market effective June 8, 2017, Navios Acquisition entered into an omnibus agreement with Navios Containers, Navios Midstream, Navios Holdings and Navios Partners, pursuant to which Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream have granted to Navios Containers a right of first refusal over any container vessels to be sold or acquired in the future. The omnibus agreement contains significant exceptions that will allow Navios Acquisition, Navios Holdings, Navios Partners and Navios Midstream to compete with Navios Containers under specified circumstances.

 

 

Navios Midstream General Partner Option Agreement with Navios Holdings: Navios Acquisition entered into an option agreement, dated November 18, 2014, with Navios Holdings under which Navios Acquisition grants Navios Holdings the option to acquire any or all of the outstanding membership interests in Navios Midstream General Partner and all of the incentive distribution rights in Navios Midstream representing the right to receive an increasing percentage of the quarterly distributions when certain conditions are met. The option shall expire on November 18, 2024. Any such exercise shall relate to not less than twenty-five percent of the option interest and the purchase price for the acquisition of all or part of the option interest shall be an amount equal to its fair market value.

 

Balance due from Navios Europe II: Navios Holdings, Navios Acquisition and Navios Partners have made available to Navios Europe II revolving loans up to $43,500 to fund working capital requirements. In March 2017, the availability under the Navios Revolving Loans II was increased by $14,000. See Note 8 for the Investment in Navios Europe II.

 

Following the Liquidation of Navios Europe II, the balance due from Navios Europe II as of June 30, 2020 was $0. The balance due from Navios Europe II as of December 31, 2019 was $44,908 which included the Navios Revolving Loans II of $20,662, the non-current amount of $7,558 related to the accrued interest income earned under the Navios Term Loans II under the caption “Due from related parties, long-term” and the accrued interest income earned under the Navios Revolving Loans II of $16,688 under the caption “Due from related parties, short-term.”

 

v3.20.2
Commitments and Contigencies
6 Months Ended
Jun. 30, 2020
Commitments and Contingencies Disclosure [Abstract]  
Commitments and Contingencies Disclosure [Text Block]

NOTE 14: COMMITMENTS AND CONTINGENCIES

 

 

In September 2018, Navios Acquisition agreed to a 12-year bareboat charter-in agreement with de-escalating purchase options for two newbuild Japanese VLCCs each delivering in the fourth quarter of 2020 and the first quarter of 2021. In the first quarter of 2019, Navios Acquisition exercised its option for a third Japanese VLCC newbuilding under a 12 year bareboat chartered-in agreement with de-escalating purchase options. The vessel is expected to be delivered in the second quarter of 2021. In the second quarter of 2020, Navios Acquisition exercised its option for a fourth Japanese newbuild VLCC under a twelve year bareboat charter agreement with de-escalating purchase options and expected delivery in the second quarter of 2022.

 

The future minimum commitments as of June 30, 2020 of Navios Acquisition under its charter-in agreement for vessels delivery are as follows:

 

         
    Amount  
Lease Obligations (Time Charters) for vessels to be delivered:        
12 month period ending        
June 30, 2021     10,397  
June 30, 2022     25,740  
June 30, 2023     33,434  
June 30, 2024     33,526  
June 30, 2025     33,434  
June 30, 2026 and thereafter     264,952  
Total   $ 401,483  

 

 

 

The Company is involved in various disputes and arbitration proceedings arising in the ordinary course of business. Provisions have been recognized in the financial statements for all such proceedings where the Company believes that a liability may be probable, and for which the amounts are reasonably estimable, based upon facts known at the date of the financial statements were prepared. In the opinion of the management, the ultimate disposition of these matters individually and in aggregate will not materially affect the Company’s financial position, results of operations or liquidity.

 

 

v3.20.2
Common Stock
6 Months Ended
Jun. 30, 2020
Equity [Abstract]  
Stockholders' Equity Note Disclosure [Text Block]

NOTE 15: COMMON STOCK

 

 

Common Stock and Puttable Common Stock

 

 

In February 2018, the Board of Directors of Navios Acquisition authorized a stock repurchase program for up to $25.0 million of Navios Acquisition’s common stock, for two years. Stock repurchases were made from time to time for cash in open market transactions at prevailing market prices or in privately negotiated transactions. The timing and amount of repurchases under the program were determined by management based upon market conditions and other factors. Repurchases were made pursuant to a program adopted under Rule 10b5-1 under the Securities Exchange Act of 1934, as amended. The program did not require any minimum repurchase or any specific number or amount of shares of common stock and was suspended or reinstated at any time in Navios Acquisition’s discretion and without notice. Repurchases were subject to restrictions under Navios Acquisition’s credit facilities and indenture. The program expired in February 2020. Upon the expiration, the Company had repurchased and cancelled 735,251 shares of common stock, at a total cost of approximately $7,493.

 

 

Equity Offering

 

In October 2019, Navios Acquisition completed a registered direct offering of 1,875,000 shares of its common stock at $8.00 per share, raising gross proceeds of $15,000. Total net proceeds of the above transactions, net of agents’ costs of $675 and offering costs of $957, amounted to $13,368.

 

 

Continuous Offering Program

 

On November 29, 2019, as further updated on December 23, 2019 to provide for Navios Acquisition’s replacement of its expiring universal shelf, Navios Acquisition entered into a Continuous Offering Program Sales Agreement, pursuant to which Navios Acquisition may issue and sell from time to time through the sales agent shares of common stock having an aggregate offering price of up to $25,000. The sales were being made pursuant to a prospectus supplement as part of a shelf registration statement which was set to expire in December 2019. Navios Acquisition went effective on a new shelf registration statement which was declared effective on December 23, 2019. Accordingly, an updated Continuous Offering Program Sales Agreement (the “Sales Agreement”) was entered into on December 23, 2019. As before, the Sales Agreement contains, among other things, customary representations, warranties and covenants by Navios Acquisition and indemnification obligations of the parties thereto as well as certain termination rights for such parties. As of June 30, 2020, since the commencement of the program, Navios Acquisition has issued 486,519 shares of common stock and received net proceeds of $3,047.

 

As of June 30, 2020, the Company was authorized to issue 250,000,000 shares of $0.0001 par value common stock of which 16,089,890 were issued and outstanding.

 

 

Stock based compensation

 

During the fiscal year 2019 and the six month period ended June 30, 2020, the Company did not authorize and issue any restricted shares of common stock to its directors and officers.

 

2018

 

In December 2018, Navios Acquisition authorized and issued in the aggregate 129,269 restricted shares of common stock to its directors and officers. These awards of restricted common stock are based on service conditions only and vest over four years.

 

 

The holders of restricted stock are entitled to dividends paid on the same schedule as paid to the stock-holders of the company. The fair value of restricted stock is determined by reference to the quoted stock price on the date of grant of $5.36 per share (or total fair value of $693).

 

Compensation expense is recognized based on a graded expense model over the vesting period.

 

The effect of compensation expense arising from the stock-based arrangement described above was $47 and $90 for the three months periods ended June 30, 2020 and 2019 respectively, and it is reflected in general and administrative expenses on the statement of operations. The recognized compensation expense for the year is presented as adjustment to reconcile net income to net cash provided by operating activities on the statements of cash flows. For the six month period ended June 30, 2020 and 2019, the effect of compensation expense arising from the stock-based arrangement described above amounted to $94 and $179, respectively.

 

There were no restricted stock or stock options exercised, forfeited or expired, that were issued in 2018, during the six month period ended June 30, 2020.

 

As of June 30, 2020 and December 31, 2019, there remained 95,452 and 96,952 restricted shares outstanding, respectively, that were issued in 2018, that had not yet vested.

 

The estimated compensation cost relating to service conditions of non-vested restricted stock, not yet recognized was $233 as of June 30, 2020 and is expected to be recognized over the weighted average time to vest of 2.5 years.

 

2017

 

In December 2017, Navios Acquisition authorized and issued in the aggregate 118,328 restricted shares of common stock to its directors and officers. These awards of restricted common stock are based on service conditions only and vest over four years.

 

The holders of restricted stock are entitled to dividends paid on the same schedule as paid to the stock holders of the Company. The fair value of restricted stock is determined by reference to the quoted stock price on the date of grant of $17.7 per share (or total fair value of $2,094).

 

Compensation expense is recognized based on a graded expense model over the vesting period.

 

The effect of compensation expense arising from the stock-based arrangement described above was $76 and $141 for the three month period ended June 30, 2020 and 2019, respectively, and it is reflected in general and administrative expenses on the statement of operations. The recognized compensation expense for the year is presented as adjustment to reconcile net income to net cash provided by operating activities on the statements of cash flows. For the six month period ended June 30, 2020 and 2019, the effect of compensation expense arising from the stock-based arrangement described above amounted to $152 and $281, respectively.

 

There were no restricted stock or stock options exercised, forfeited or expired, that were issued in 2017, during the six month period ended June 30, 2020.

 

As of June 30, 2020 and December 31, 2019, there remained 58,496 and 59,162 restricted shares outstanding, respectively, that were issued in 2017, that had not yet vested.

 

The estimated compensation cost relating to service conditions of non-vested restricted stock, not yet recognized was $267 as of June 30, 2020 and is expected to be recognized over the weighted average time to vest of 1.5 years.

 

 

v3.20.2
Segment Information
6 Months Ended
Jun. 30, 2020
Segment Reporting [Abstract]  
Schedule of Segment Reporting Information, by Segment [Table Text Block]

NOTE 16: SEGMENT INFORMATION

 

 

Navios Acquisition reports financial information and evaluates its operations by charter revenues. Navios Acquisition does not use discrete financial information to evaluate operating results for each type of charter. As a result, management reviews operating results solely by revenue per day and operating results of the fleet and thus Navios Acquisition has determined that it operates under one reportable segment.

 

The following table sets out operating revenue by geographic region for Navios Acquisition’s reportable segment. Revenue is allocated on the basis of the geographic region in which the customer is located. Tanker vessels operate worldwide. Revenues from specific geographic regions which contribute over 10% of total revenue are disclosed separately.

 

 

Revenue by Geographic Region

 

Vessels operate on a worldwide basis and are not restricted to specific locations. Accordingly, it is not possible to allocate the assets of these operations to specific countries.

 

   

                                 
    Three Month
Period ended
June 30, 2020
(unaudited)
    Three Month
Period ended
June 30, 2019
(unaudited)
    Six Month
Period ended
June 30, 2020
(unaudited)
    Six Month
Period ended
June 30, 2019
(unaudited)
 
Asia   $ 87,753     $ 43,466     $ 161,265     $ 101,784  
Europe     16,659       4,232       33,558       9,148  
United States     7,812       10,887       15,258       24,712  
   
 
 
   
 
 
   
 
 
   
 
 
 
Total   $ 112,224     $ 58,585     $ 210,081     $ 135,704  
   
 
 
   
 
 
   
 
 
   
 
 
 

 

 

v3.20.2
Earnings/ (Loss) per Common Share
6 Months Ended
Jun. 30, 2020
Earnings Per Share [Abstract]  
Earnings Per Share [Text Block]

NOTE 17: EARNINGS/ (LOSS) PER COMMON SHARE

 

 

Earnings/ (loss) per share is calculated by dividing net income attributable to common stockholders by the weighted average number of shares of common stock of Navios Acquisition outstanding during the period.

 

 

 

                                 
    For the Three
Months Ended
June 30, 2020
    For the Three
Months Ended
June 30, 2019
    For the Six
Months Ended
June 30, 2020
    For the Six
Months Ended
June 30, 2019
 
Numerator:                                
Net income/ (loss)   $ 31,017     $ (16,550)     $ 31,886     $ (15,689)  
Less:                                
Dividend declared on restricted shares     (47)     (65)       (94)     (131)  
Undistributed loss attributable to Series C participating preferred shares     —         —         —         (13)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) attributable to common stockholders, basic   $ 30,970     $ (16,615)     $ 31,792     $ (15,833)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Plus:                                
Undistributed income attributable to Series C participating preferred shares     —         —         —         13  
Net income/ (loss) attributable to common stockholders, diluted   $ 30,970     $ (16,615)     $ 31,792     $ (15,820)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Denominator:                                
Denominator for basic net income/ (loss) per share — weighted average shares     15,888,354       13,510,361       15,803,166       13,414,547  
Series C participating preferred shares           —               —    
Denominator for diluted net income/ (loss)  per share — adjusted weighted average shares     16,043,704       13,510,361       15,958,897       13,414,547  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) per share, basic   $ 1.95     $ (1.23)     $ 2.01     $ (1.18)  
Net income/ (loss) per share, diluted   $ 1.93     $ (1.23)     $ 1.99     $ (1.18)  
   
 
 
   
 
 
   
 
 
   
 
 
 

 

 

 

v3.20.2
Income Taxes
6 Months Ended
Jun. 30, 2020
Income Tax Disclosure [Abstract]  
Income Tax Disclosure [Text Block]

NOTE 18: INCOME TAXES

 

 

Marshall Islands, Cayman Islands, British Virgin Islands, and Hong Kong, do not impose a tax on international shipping income. Under the laws of these countries, the countries of incorporation of the Company and its subsidiaries and /or vessels’ registration, the companies are subject to registration and tonnage taxes which have been included in the daily management fee.

 

In accordance with the currently applicable Greek law, foreign flagged vessels that are managed by Greek or foreign ship management companies having established an office in Greece are subject to duties towards the Greek state which are calculated on the basis of the relevant vessels’ tonnage. The payment of said duties exhausts the tax liability of the foreign ship owning company and the relevant manager against any tax, duty, charge or contribution payable on income from the exploitation of the foreign flagged vessel. In case that tonnage tax and/or similar taxes/duties are paid to the vessel’s flag state, these are deducted from the amount of the duty to be paid in Greece.

 

The amount included in Navios Acquisition’s statements of operations related to the Greek Tonnage tax for the six months ended June 30, 2020,and 2019 was $959 and $399, respectively, and for the three months ended June 30, 2020 and 2019, was $69 and $233, respectively.

 

Pursuant to Section 883 of the Internal Revenue Code of the United States (the “Code”), U.S. source income from the international operation of ships is generally exempt from U.S. income tax if the company operating the ships meets certain incorporation and ownership requirements. Among other things, in order to qualify for this exemption, the company operating the ships must be incorporated in a country, which grants an equivalent exemption from income taxes to U.S. corporations. All the Navios Acquisition’s ship-operating subsidiaries satisfy these initial criteria. In addition, these companies must meet an ownership test. Subject to proposed regulations becoming finalized in their current form, the management of Navios Acquisition believes by virtue of a special rule applicable to situations where the ship operating companies are beneficially owned by a publicly traded company like Navios Acquisition, the second criterion can also be satisfied based on the trading volume and ownership of the Company’s shares, but no assurance can be given that this will remain so in the future.

 

v3.20.2
Subsequent events
6 Months Ended
Jun. 30, 2020
Subsequent Events [Abstract]  
Subsequent Events [Text Block]

NOTE 19: SUBSEQUENT EVENTS

 

 

On July 28, 2020, the Board of Directors declared a quarterly cash dividend in respect of the second quarter of 2020 of $0.30 per share of common stock which will be paid on October 8, 2020 to stockholders of record as of September 4, 2020. The declaration and payment of any further dividends remain subject to the discretion of the Board of Directors and will depend on, among other things, Navios Acquisition’s cash requirements as measured by market opportunities and restrictions under its credit agreements and other debt obligations and such other factors as the Board of Directors may deem advisable.

 

Subsequently to June 30, 2020 Navios Acquisition repurchased $9,000 of Ship Mortgage Notes for a cash consideration of $5,338.

 

 

v3.20.2
Summary of Significant Accounting Policies (Policies)
6 Months Ended
Jun. 30, 2020
Accounting Policies [Abstract]  
Basis of presentation:

(a) Basis of presentation:

The accompanying interim condensed consolidated financial statements are unaudited, but, in the opinion of management, reflect all adjustments for a fair statement of Navios Acquisition’s unaudited condensed consolidated balance sheets, statement of changes in equity, statements of operations and cash flows for the periods presented. The results of operations for the interim periods are not necessarily indicative of results for the full year. The footnotes are condensed as permitted by the requirements for interim financial statements and accordingly, do not include information and disclosures required under accounting principles generally accepted in the United States of America (“U.S. GAAP”) for complete financial statements. All such adjustments are deemed to be of a normal recurring nature. These interim financial statements should be read in conjunction with the Company’s consolidated financial statements and notes included in Navios Acquisition’s 2019 Annual Report filed on Form 20-F with the Securities and Exchange Commission (“SEC”).

 

 

 

Recent accounting pronouncements

(ab) Recent accounting pronouncements

 

In March 2020, the FASB issued ASU 2020-04, “Reference Rate Reform (Topic 848): Facilitation of the Effects of Reference Rate Reform on Financial Reporting”, which provides guidance to alleviate the burden in accounting for reference rate reform by allowing certain expedients and exceptions in applying generally accepted accounting principles to contract modifications, hedging relationships, and other transactions impacted by reference rate reform. The provisions of ASU 2020-04 apply only to those transactions that reference LIBOR or another reference rate expected to be discontinued due to reference rate reform. Adoption of the provisions of ASU 2020-04 is optional and is effective from March 12, 2020 through December 31, 2022. The company is currently evaluating the impact of ASU 2020-04 on our condensed consolidated financial statements.

 

In August 2018, FASB issued ASU 2018-13, “Fair Value Measurement (Topic 820): Disclosure Framework-Changes to the Disclosure Requirements for Fair Value Measurement”. This update modifies the disclosure requirements on fair value measurements. ASU 2018-13 is effective for fiscal years beginning after December 15, 2019, and earlier adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In October 2018, FASB issued ASU 2018-17, Consolidation (Topic 810): “Targeted Improvements to Related Party Guidance for Variable Interest Entities” (“ASU 2018-17”). ASU 2018-17 provides that indirect interests held through related parties in common control arrangements should be considered on a proportional basis for determining whether fees paid to decision makers and service providers are variable interests. This is

consistent with how indirect interests held through related parties under common control are considered for determining whether a reporting entity must consolidate a Variable Interest Entity (“VIE). For Public business entities the amendments are effective for fiscal years beginning after December 15,

2019, and interim periods within those fiscal years. Early adoption is permitted. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

In January 2017, the FASB issued ASU No. 2017-04, Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill

Impairment. The ASU is effective for periods beginning after December 15, 2019, with an election to adopt early. The ASU requires only

a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value. It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The adoption of this new accounting guidance did not have a material effect on the Companys consolidated financial statements.

 

In June 2016, FASB issued ASU 2016-13, “Financial Instruments-Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments.” This standard requires entities to measure all expected credit losses of financial assets held at a reporting date based on historical experience, current conditions, and reasonable and supportable forecasts in order to record credit losses in a more timely matter. ASU 2016-13 also amends the accounting for credit losses on available-for-sale debt securities and purchased financial assets with credit deterioration. The standard is effective for interim and annual reporting periods beginning after December 15, 2019, although early adoption is permitted for interim and annual periods beginning after December 15, 2018. In November 2018, FASB issued ASU 2018-19 “Codification Improvements to topic 326, Financial Instruments-Credit Losses”. The amendments in this update clarify that operating lease receivables are not within the scope of ASC 326-20 and should instead be accounted for under the new leasing standard, ASC 842. The adoption of this new accounting guidance did not have a material effect on the Company’s consolidated financial statements.

 

Principles of consolidation:

(b) Principles of consolidation:

The accompanying consolidated financial statements include the accounts of Navios Acquisition, a Marshall Islands corporation, and its majority owned subsidiaries. All significant intercompany balances and transactions have been eliminated in the consolidated statements.

 

The Company also consolidates entities that are determined to be variable interest entities (“VIEs”) as defined in the accounting guidance, if it determines that it is the primary beneficiary. A variable interest entity is defined as a legal entity where either (a) equity interest holders as a group lack the characteristics of a controlling financial interest, including decision making ability and an interest in the entity’s residual risks and rewards, or (b) the equity holders have not provided sufficient equity investment to permit the entity to finance its activities without additional subordinated financial support, or (c) the voting rights of some investors are not proportional to their obligations to absorb the expected losses of the entity, their rights to receive the expected residual returns of the entity, or both and substantially all of the entity’s activities either involve or are conducted on behalf of an investor that has disproportionately few voting rights.

 

Based on internal forecasts and projections that take into account reasonably possible changes in Company’s trading performance, management believes that the Company has adequate financial resources to continue in operation and meet its financial commitments, including but not limited to capital expenditures and debt service obligations, for a period of at least twelve months from the date of issuance of these consolidated financial statements. Accordingly, the Company continues to adopt the going concern basis in preparing its financial statements.

 

Equity method investments

(c) Equity method investments:

Affiliates are entities over which the Company generally has between 20% and 50% of the voting rights, or over which the Company has significant influence, but it does not exercise control. Investments in these entities are accounted for under the equity method of accounting. Under this method, the Company records an investment in the stock of an affiliate at cost, and adjusts the carrying amount for its share of the earnings or losses of the affiliate subsequent to the date of investment and reports the recognized earnings or losses in income. Dividends received from an affiliate reduce the carrying amount of the investment. The Company recognizes gains and losses in earnings for the issuance of shares by its affiliates, provided that the issuance of such shares qualifies as a sale of such shares. When the Company’s share of losses in an affiliate equals or exceeds its interest in the affiliate, the Company does not recognize further losses, unless the Company has incurred obligations or made payments on behalf of the affiliate.

 

Navios Acquisition evaluates its equity method investments, for other than temporary impairment, on a quarterly basis. Consideration is given to (1) the length of time and the extent to which the fair value has been less than the carrying value, (2) the financial condition and near-term prospects and (3) the intent and ability of the Company to retain its investments for a period of time sufficient to allow for any anticipated recovery in fair value.

 

Subsidiaries

(d) Subsidiaries:

Subsidiaries are those entities in which the Company has an interest of more than one half of the voting rights and/or otherwise has power to govern the financial and operating policies. The acquisition method of accounting is used to account for the acquisition of subsidiaries if deemed to be a business combination. The cost of an acquisition is measured as the fair value of the assets given up, shares issued or liabilities undertaken at the date of acquisition. The excess of the cost of acquisition over the fair value of the net assets acquired and liabilities assumed is recorded as goodwill.

 

 

As of June 30, 2020, the entities included in these consolidated financial statements were: 

                   

Navios Maritime Acquisition

Corporation and Subsidiaries:

  Nature  

Country of

Incorporation

  2020   2019  
Company Name                  
Aegean Sea Maritime Holdings Inc.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amorgos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Andros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antikithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antiparos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amindra Navigation Co.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Crete Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Folegandros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ikaria Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ios Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Kithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Mytilene Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Acquisition Corporation   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Finance (U.S.) Inc.   Co-Issuer   Delaware   1/1 – 6/30   1/1 – 6/30  
Rhodes Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Serifos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Loyalty Limited   Former Vessel-Owning Company(1)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Navigator Limited   Former Vessel-Owning Company(2)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sifnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skiathos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skopelos Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Syros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thera Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Oinousses Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Psara Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipsara Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samothrace Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thasos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Limnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skyros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alonnisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Makronisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Iraklia Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Paxos Shipping Corporation   Former Vessel-Owning Company(5)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipaxos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Donoussa Shipping Corporation   Former Vessel-Owning Company(6)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Schinousa Shipping Corporation   Former Vessel-Owning Company(7)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Europe Finance Inc   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kerkyra Shipping Corporation   Vessel-Owning Company(3)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Lefkada Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Zakynthos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Leros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kimolos Shipping Corporation   Former Vessel-Owning Company(13)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tilos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Delos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Agistri Shipping Corporation   Operating Subsidiary   Malta   1/1 – 6/30   1/1 – 6/30  
Olivia Enterprises Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Cyrus Investments Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Doxa International Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tzia Shipping Corp.   Vessel-Owning Company(10)   Marshall Is.   6/4 – 6/30    –   
Navios Maritime Midstream Partners GP LLC   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Operating LLC   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners L.P.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners Finance (US) Inc.   Co-borrower   Delaware   1/1 – 6/30   1/1 – 6/30  
Shinyo Kannika Limited   Former Vessel-Owning Company   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Ocean Limited   Former Vessel-Owning Company(11)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Saowalak Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Kieran Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Dream Limited   Former Vessel-Owning Company(12)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sikinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alkmene Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Persephone Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Rhea Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Aphrodite Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Dione Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Bole Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Boysenberry Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Brandeis Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Buff Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cadmium Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Celadon Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cerulean Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
                   

  

(1) Former vessel-owner of the Shinyo Splendor which was sold to an unaffiliated third party on May 6, 2014.

(2)       Former vessel-owner of the Shinyo Navigator which was sold to an unaffiliated third party on December 6, 2013.

(3)       Navios Midstream acquired all of the outstanding shares of capital stock of the vessel-owning subsidiary on March 29, 2018.

(4) Each company had the rights over a shipbuilding contract of an MR2 product tanker vessel. In February 2015, these shipbuilding contracts were terminated, with no exposure to Navios Acquisition, due to the shipyard’s inability to issue a refund guarantee.

(5) Former vessel-owner of the Nave Lucida which was sold to an unaffiliated third party on January 27, 2016.

(6) Former vessel-owner of the Nave Universe which was sold to an unaffiliated third party on October 4, 2016.

(7) Former vessel-owner of the Nave Constellation which was sold to an unaffiliated third party on November 15, 2016.

(8) Currently, vessel-operating company under a sale and leaseback transaction.

(9)  The vessel Shinyo Kannika was sold to an unaffiliated third party on March 22, 2018.

(10) Bareboat chartered-in vessels with purchase option, expected to be delivered in each of the fourth quarter of 2020, the first and the third quarters of 2021 and the second quarter of 2022.

(11) In March 2019, the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt was involved in a collision incident. The Company maintains insurance coverage for such types of events (subject to applicable deductibles and other customary limitations). In May 10, 2019, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

(12) On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750.

(13) On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

(14) In December 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers following the Liquidation of Navios Europe I.

(15) In June 2020, Navios Acquisition acquired seven vessel owning companies following the Liquidation of Navios Europe II.

 

 

 

 

 

 

Assets / Liabilities associated with Assets Held for Sale

(g) Assets / Liabilities associated with Assets Held for Sale

It is the Company’s policy to dispose of vessels and other fixed assets when suitable opportunities occur and not necessarily to keep them until the end of their useful life. The Company classifies assets and disposal groups as “being held for sale” when the following criteria are met: management has committed to a plan to sell the asset (disposal group); the asset (disposal group) is available for immediate sale in its present condition; an active program to locate a buyer and other actions required to complete the plan to sell the asset (disposal group) have been initiated; the sale of the asset (disposal group) is probable and transfer of the asset (disposal group) is expected to qualify for recognition as a completed sale within one year; the asset (disposal group) is being actively marketed for sale at a price that is reasonable in relation to its current fair value and actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Long-lived assets or disposal groups classified as held for sale are measured at the lower of their carrying amount or fair value less cost to sell. These assets are not depreciated once they meet the criteria to be held for sale.

 

Revenue and Expense Recognition

(f) Revenue and Expense Recognition:

 

Revenue Recognition:

On January 1, 2018, the Company adopted the provisions of ASC 606, Revenue from Contracts with Customers (ASC

606). The guidance provides a unified model to determine how revenue is recognized. In doing so, the Company makes judgments including identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price, and allocating the transaction price to each performance obligation. Revenues are recognized to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. In determining the appropriate amount of revenue to be recognized as it fulfills its obligations under its agreements, the Company performs the following steps: (i) identification of the promised goods or services in the contract; (ii) determination of whether the promised goods or services are performance obligations, including whether they are distinct in the context of the contract; (iii) measurement of the transaction price, including the constraint on variable consideration; (iv) allocation of the transaction price to the performance obligations based on estimated selling prices; and (v) recognition of revenue when (or as) the Company satisfies each performance obligation.

 

In February 2016, the FASB issued ASU 2016-02, “Leases (Topic 842)” (“ASU 2016-02”). ASU 2016-02 will apply to both types of leases – capital (or finance) leases and operating leases. According to the new Accounting Standard, (a) lessees will be required to recognize assets and liabilities on the balance sheet for the rights and obligations created by all leases with terms of more than 12 months and (b) previous accounting standards for lessors will be updated to align certain requirements with the updates to lessee accounting standards and the revenue recognition accounting standards. ASU 2016 – 02 is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. Early application is permitted. In July 2018, the FASB issued ASU 2018-10, Codification Improvements to Topic 842 Leases (“ASU 2018-10”). The amendments in ASU 2018-10 affect narrow aspects of the guidance issued in the amendments in ASU 2016-02. For entities that early adopted Topic 842, the amendments are effective upon issuance of this Update, and the transition requirements are the same as those in Topic 842. For entities that have not adopted Topic 842, the effective date and transition requirements will be the same as the effective date and transition requirements in Topic 842. In addition in July 2018, the FASB issued ASU 2018-11, Targeted Improvements to Topic 842 Leases (“ASU 2018-11). The improvements in ASU 2018-11 provide for (a) an optional new transition method for adoption that results in initial recognition of a cumulative effect adjustment to retained earnings in the year of adoption and (b) a practical expedient for lessors, under certain circumstances, to combine the lease and non-lease components of revenues for presentation purposes.

 

 

The Company has elected to early adopt the requirements of ASU 2016-02 effective January 1, 2018, using the modified retrospective method which is consistent, with the approach the Company has elected under the new revenue standard, and elected to apply the additional optional transition method along with the following practical expedients: (i) a package of practical expedients which does not require the Company to reassess: (1) whether any expired or existing contracts are or contain leases; (2) lease classification for any expired or existing leases; and (3) whether initial direct costs for any expired or existing leases would qualify for capitalization under ASC 842; (ii) to account for non-lease components (primarily crew and maintenance services) of time charters as a single lease component as the timing and pattern of transfer of the non-lease components and associated lease component are the same, the lease components, if accounted for separately, would be classified as an operating lease, and such non-lease components are not predominant components of the combined component. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of adoption, there was no cumulative impact to the Company’s retained earnings at January 1, 2018.

 

The Company’s contract revenues from time chartering and pooling arrangements are governed by ASU 2016-02 “Leases”, which the Company early adopted on January 1, 2018. Upon adoption of ASC 606 and ASC 842, the timing and recognition of earnings from the pool arrangements and time charter contracts to which the Company is party did not change from previous practice. The Company has determined to recognize lease revenue as a combined single lease component for all time charters (operating leases) as the related lease component and non-lease component will have the same timing and pattern of the revenue recognition of the combined single lease component. The performance obligations in a time charter contract are satisfied over term of the contract beginning when the vessel is delivered to the charterer until it is redelivered back to the Company. As a result of the adoption of these standards, there was no effect on the Company’s opening retained earnings, consolidated balance sheets and consolidated statements of income.

 

In December 2018, FASB issued ASU 2018-20, Leases (Topic 842), “Narrow-Scope Improvements for Lessors”: to clarify guidance for lessors on sales taxes and other similar taxes collected from lessees, certain lessor costs and recognition of variable payments for contracts with lease and non-lease components. The Company has early adopted the standard effective January 1, 2018 and is using that date as the date of initial application. The adoption of this guidance had no impact on the Company’s disclosures to the consolidated financial statements.

 

 

Revenue from time chartering

 

Revenues from time chartering of vessels are accounted for as operating leases and are thus recognized on a straight-line basis as the average revenue over the rental periods of such charter agreements, as service is performed. A time charter involves placing a vessel at the charterers’ disposal for a period of time during which the charterer uses the vessel in return for the payment of a specified daily hire rate. Under time charters, operating costs such as for crews, maintenance and insurance are typically paid by the owner of the vessel. Revenues from time chartering of vessels amounted to $74,824 and $41,143 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues from time chartering of vessels amounted to $129,166 and $88,735, respectively. The majority of revenue from time chartering is usually collected in advance.

 

 

Pooling arrangements

 

For vessels operating in pooling arrangements, the Company earns a portion of total revenues generated by the pool, net of expenses incurred by the pool. The amount allocated to each pool participant vessel, including the Company’s vessels, is determined in accordance with an agreed-upon formula, which are determined by the margins awarded to each vessel in the pool based on the vessel’s age, design and other performance characteristics. Revenue under pooling arrangements is accounted for as variable rate operating leases on the accrual basis and is recognized in the period in which the variability is resolved. The Company recognizes net pool revenue on a monthly and quarterly basis, when the vessel has participated in a pool during the period and the amount of pool revenue can be estimated reliably based on the pool report. The allocation of such net revenue may be subject to future adjustments by the pool however, such changes are not expected to be material. Revenue for vessels operating in pooling arrangements amounted to $16,682 and $13,430 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenue operating in pooling arrangements amounted to $39,358 and $32,596, respectively. The majority of revenue from pooling arrangements is usually collected through the month they are incurred.

 

 

Revenue from voyage contracts

 

The Company’s revenues earned under voyage contracts (revenues for the transportation of cargo) were previously recognized ratably over the estimated relative transit time of each voyage. A voyage was deemed to commence when a vessel was available for loading and was deemed to end upon the completion of the discharge of the current cargo. Under a voyage charter, a vessel is provided for the transportation of specific goods between specific ports in return for payment of an agreed upon freight per ton of cargo. Upon adoption of ASC 606, the Company recognizes revenue ratably from port of loading to when the charterer’s cargo is discharged as well as defer costs that meet the definition of “costs to fulfill a contract” and relate directly to the contract. Revenues earned under voyage contracts amounted to $0 and $3,639 for the three month periods ended June 30, 2020 and 2019, respectively. For the six month periods ended June 30, 2020 and 2019, revenues under voyage contracts amounted to $9,713 and $9,678, respectively. Capitalized costs as of June 30, 2020 and December 31, 2019 related to costs to fulfill the contract amounted to $0 and $103, respectively, and are included under caption “Prepaid expenses and other current assets”. Accounts receivable, net, as of June 30, 2020 that related to voyage contracts was $1,910 (December 31, 2019: $12,219). The majority of revenue from voyage contracts is usually collected after the discharging takes place.

 

 

Revenue from profit sharing

 

Profit-sharing revenues are calculated at an agreed percentage of the excess of the charterer’s average daily income (calculated on a quarterly or half-yearly basis) over an agreed amount and accounted for on an accrual basis based on provisional amounts and for those contracts that provisional accruals cannot be made due to the nature of the profit share elements, these are accounted for on the actual cash settlement. Profit sharing for the three month periods ended June 30, 2020 and 2019 amounted to $20,718 and $373, respectively. For the six month periods ended June 30, 2020 and 2019, profit sharing revenues amounted to $31,844 and $4,695, respectively.

 

Revenues are recorded net of address commissions. Address commissions represent a discount provided directly to the charterers based on a fixed percentage of the agreed upon charter or freight rate. Since address commissions represent a discount (sales incentive) on services rendered by the Company and no identifiable benefit is received in exchange for the consideration provided to the charterer, these commissions are presented as a reduction of revenue.

 

 

Options to extend or terminate a lease

 

The Company’s vessels have the following options to extent or renew their charters:

     

Vessel

  Option
Hector N   Charterer’s option to extend the charter for one year at $15,800 net per day.
Nave Sextans   Charterer’s option to extend the charter for one year at $18,750 net per day.
Nave Pulsar   Charterer’s option to extend the charter for one year at $16,590 net per day plus ice-transit premium.

Nave Rigel

  Charterer has the option to charter the vessel for an optional year at a rate of $17,063 net per day.
Nave Cetus   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Equinox   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Aquila   Charterer's option to extend the charter for one year at $16,886 net per day
Nave Titan   Charterer's option to extend the charter for 30-90 days at $12,838 net per day with the last 30 days at $15,306 net per day
TBN 1   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.
TBN 2   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.

 

 

v3.20.2
Summary of Significant Accounting Policies (Tables)
6 Months Ended
Jun. 30, 2020
Accounting Policies [Abstract]  
Summary of Significant Accounting Policies - Subsidiaries (Table)

As of June 30, 2020, the entities included in these consolidated financial statements were: 

                   

Navios Maritime Acquisition

Corporation and Subsidiaries:

  Nature  

Country of

Incorporation

  2020   2019  
Company Name                  
Aegean Sea Maritime Holdings Inc.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amorgos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Andros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antikithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antiparos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Amindra Navigation Co.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Crete Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Folegandros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ikaria Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Ios Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Kithira Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Mytilene Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Acquisition Corporation   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Finance (U.S.) Inc.   Co-Issuer   Delaware   1/1 – 6/30   1/1 – 6/30  
Rhodes Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Serifos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Loyalty Limited   Former Vessel-Owning Company(1)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Navigator Limited   Former Vessel-Owning Company(2)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sifnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skiathos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skopelos Shipping Corporation   Vessel-Owning Company(8)   Cayman Is.   1/1 – 6/30   1/1 – 6/30  
Syros Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thera Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Oinousses Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Psara Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipsara Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samothrace Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Thasos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Limnos Shipping Corporation   Vessel-Owning Company(8)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Skyros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alonnisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Makronisos Shipping Corporation   Former Vessel-Owning Company(4)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Iraklia Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Paxos Shipping Corporation   Former Vessel-Owning Company(5)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Antipaxos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Donoussa Shipping Corporation   Former Vessel-Owning Company(6)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Schinousa Shipping Corporation   Former Vessel-Owning Company(7)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Acquisition Europe Finance Inc   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kerkyra Shipping Corporation   Vessel-Owning Company(3)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Lefkada Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Zakynthos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Leros Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Kimolos Shipping Corporation   Former Vessel-Owning Company(13)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Samos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tilos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Delos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Agistri Shipping Corporation   Operating Subsidiary   Malta   1/1 – 6/30   1/1 – 6/30  
Olivia Enterprises Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Cyrus Investments Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Doxa International Corp.   Vessel-Owning Company(10)   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Tzia Shipping Corp.   Vessel-Owning Company(10)   Marshall Is.   6/4 – 6/30    –   
Navios Maritime Midstream Partners GP LLC   Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Operating LLC   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners L.P.   Sub-Holding Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Navios Maritime Midstream Partners Finance (US) Inc.   Co-borrower   Delaware   1/1 – 6/30   1/1 – 6/30  
Shinyo Kannika Limited   Former Vessel-Owning Company   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Ocean Limited   Former Vessel-Owning Company(11)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Shinyo Saowalak Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Kieran Limited   Vessel-Owning Company   British Virgin Is.   1/1 – 6/30   1/1 – 6/30  
Shinyo Dream Limited   Former Vessel-Owning Company(12)   Hong Kong   1/1 – 6/30   1/1 – 6/30  
Sikinos Shipping Corporation   Vessel-Owning Company   Marshall Is.   1/1 – 6/30   1/1 – 6/30  
Alkmene Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Persephone Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Rhea Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Aphrodite Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Dione Shipping Corporation   Vessel-Owning Company(14)   Marshall Is.   1/1 – 6/30   —   
Bole Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Boysenberry Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Brandeis Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Buff Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cadmium Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Celadon Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
Cerulean Shipping Corporation   Vessel-Owning Company(15)   Marshall Is.   6/29 – 6/30   —   
                   

  

(1) Former vessel-owner of the Shinyo Splendor which was sold to an unaffiliated third party on May 6, 2014.

(2)       Former vessel-owner of the Shinyo Navigator which was sold to an unaffiliated third party on December 6, 2013.

(3)       Navios Midstream acquired all of the outstanding shares of capital stock of the vessel-owning subsidiary on March 29, 2018.

(4) Each company had the rights over a shipbuilding contract of an MR2 product tanker vessel. In February 2015, these shipbuilding contracts were terminated, with no exposure to Navios Acquisition, due to the shipyard’s inability to issue a refund guarantee.

(5) Former vessel-owner of the Nave Lucida which was sold to an unaffiliated third party on January 27, 2016.

(6) Former vessel-owner of the Nave Universe which was sold to an unaffiliated third party on October 4, 2016.

(7) Former vessel-owner of the Nave Constellation which was sold to an unaffiliated third party on November 15, 2016.

(8) Currently, vessel-operating company under a sale and leaseback transaction.

(9)  The vessel Shinyo Kannika was sold to an unaffiliated third party on March 22, 2018.

(10) Bareboat chartered-in vessels with purchase option, expected to be delivered in each of the fourth quarter of 2020, the first and the third quarters of 2021 and the second quarter of 2022.

(11) In March 2019, the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt was involved in a collision incident. The Company maintains insurance coverage for such types of events (subject to applicable deductibles and other customary limitations). In May 10, 2019, Navios Acquisition sold the Shinyo Ocean, a 2001-built VLCC vessel of 281,395 dwt to an unaffiliated third party for a sale price of $12,525.

(12) On March 25, 2019, Navios Acquisition sold the C. Dream, a 2000-built VLCC vessel of 298,570 dwt to an unaffiliated third party for a sale price of $21,750.

(13) On October 8, 2019, Navios Acquisition sold the Nave Electron, a 2002-built VLCC vessel of 305,178 dwt to an unaffiliated third party for a sale price of $25,250.

(14) In December 2019, Navios Acquisition acquired five product tankers, two LR1 product tankers and three MR1 product tankers following the Liquidation of Navios Europe I.

(15) In June 2020, Navios Acquisition acquired seven vessel owning companies following the Liquidation of Navios Europe II.

 

Summary of Significant Accounting Policies - Options to extend or terminate a lease (Table)

The Company’s vessels have the following options to extent or renew their charters:

     

Vessel

  Option
Hector N   Charterer’s option to extend the charter for one year at $15,800 net per day.
Nave Sextans   Charterer’s option to extend the charter for one year at $18,750 net per day.
Nave Pulsar   Charterer’s option to extend the charter for one year at $16,590 net per day plus ice-transit premium.

Nave Rigel

  Charterer has the option to charter the vessel for an optional year at a rate of $17,063 net per day.
Nave Cetus   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Equinox   Charterer’s option to extend the charter for six months at $16,788 net per day.
Nave Aquila   Charterer's option to extend the charter for one year at $16,886 net per day
Nave Titan   Charterer's option to extend the charter for 30-90 days at $12,838 net per day with the last 30 days at $15,306 net per day
TBN 1   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.
TBN 2   Charterer’s option to extend the bareboat charter for five years at $29,751 net per day.

 

v3.20.2
Cash and Cash Equivalents And Restricted Cash (Tables)
6 Months Ended
Jun. 30, 2020
Cash and Cash Equivalents [Abstract]  
Cash and Cash Equivalents and Restricted Cash - Schedule (Table)

Cash and cash equivalents consisted of the following:

 

 

 

                 
    June 30, 2020     December 31, 2019  
Cash on hand and at banks   $ 67,718     $ 43,561  
Restricted cash     764       490  
Total cash, cash equivalents and restricted cash   $ 68,482     $ 44,051  

 

v3.20.2
Inventories, Prepaid Expenses And Other Current Assets (Tables)
6 Months Ended
Jun. 30, 2020
Deferred Costs, Capitalized, Prepaid, and Other Assets Disclosure [Abstract]  
Inventories, Prepaid Expenses and Other Current Assets (Table)

Inventories, prepaid expenses and other current assets consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Inventories   $ 5,440     $ 6,208  
Advances for working capital purposes     5,350       7,250  
Insurance claims     3,384       4,785  
Voyage charters deferred contract costs and other     969       791  
   
 
 
   
 
 
 
Total inventories, prepaid expenses and other current assets   $ 15,143     $ 19,034  
   
 
 
   
 
 
 
v3.20.2
Vessels, Net (Tables)
6 Months Ended
Jun. 30, 2020
Property, Plant and Equipment [Abstract]  
Vessels, Net (Table)

Vessels, Net 

  

                         

Vessels

  Cost     Accumulated
Depreciation
    Net Book
Value
 
Balance at December 31, 2018   $ 1,687,274     $ (303,669)     $ 1,383,605  
Additions/ (Depreciation)     102,637       (63,935)       38,702  
Disposals     (77,922)       11,153       (66,769)  
Impairment loss     (7,287)                (7,287)  
Balance at December 31, 2019   $ 1,704,702       (356,451)       1,348,251  
Additions/ (Depreciation)     3,654       (33,249)     (29,595)
Balance at June 30, 2020   $ 1,708,356     $ (389,700)     1,318,656  
v3.20.2
Intangible Assets Other Than Goodwill (Tables)
6 Months Ended
Jun. 30, 2020
Goodwill and Intangible Assets Disclosure [Abstract]  
Intangible Assets Other Than Goodwill - Amortization (Expense) / Income (Table)

Amortization expense of favorable lease terms for the three and six month periods ended June 30, 2020 and 2019 is presented in the following table:

 

                                 
    Three Month Period Ended     Six Month Period Ended  
    June 30,
2020
    June 30,
2019
    June 30,
2020
    June 30,
2019
 
Favorable lease terms charter-out   $ —       $ (1,319   $ —       $ (2,639
Total   $ —       $ (1,319   $ —       $ (2,639

 

v3.20.2
Accrued Expenses (Tables)
6 Months Ended
Jun. 30, 2020
Accrued Expenses  
Accrued Expenses - Schedule (Table)

Accrued expenses as of June 30, 2020 and December 31, 2019 consisted of the following:

 

                 
    June 30,
2020
    December 31,
2019
 
Accrued voyage expenses   $ 2,052     $ 2,643  
Accrued loan interest     8,286       10,468  
Accrued legal and professional fees     3,740       1,226  
Total accrued expenses   $ 14,078     $ 14,337  
v3.20.2
Borrowings (Tables)
6 Months Ended
Jun. 30, 2020
Debt Disclosure [Abstract]  
Borrowings - Schedule (Table)

 

                 
    June 30,
2020
    December 31,
2019
 
Eurobank Ergasias S.A. $52,000           28,758  
DVB Bank S.E. and Credit Agricole Corporate and Investment Bank     37,891       39,453  
Ship Mortgage Notes $670,000     658,000       658,000  
Deutsche Bank AG Filiale Deutschlandgeschäft and Skandinaviska Enskilda Banken AB     19,065       39,173  
BNP Paribas $44,000     26,000       28,000  
HSH $24,000     17,135       18,280  
HCOB $31,800     30,108       31,800  
Deutsche Bank AG Filiale Deutschlandgeschäft           32,500  
Eurobank S.A. $20,800     20,800           
Total credit facilities     808,999       875,964  
Sale and Leaseback Agreements–$71,500     58,094       62,563  
Sale and Leaseback Agreements–$103,155     93,189       97,723  
Sale and Leaseback Agreements–$15,000     13,281       14,219  
Sale and Leaseback Agreements–$47,220     43,133       45,858  
Sale and Leaseback Agreements–$90,811     85,158       90,811  
Sale and Leaseback Agreements–$72,053     72,053           
Total borrowings     1,173,907       1,187,138  
Less: Deferred finance costs, net     (13,318)     (14,638)  
Add: bond premium     445       617  
Less: current portion of credit facilities, net of deferred finance costs     (61,261)     (141,214)  
Less: current portion of Sale and Leaseback Agreements, net of deferred finance costs     (38,695)     (31,739)  
Total long-term borrowings, net of current portion, bond premium and deferred finance costs   $ 1,061,078     $ 1,000,164  

 

Borrowings - Long-Term Debt Obligations (Table)

  

  

         
    June 30,
2020
 
Long-Term Debt Obligations:        
12 month period ending      
June 30, 2021   102,608    
June 30, 2022   757,620    
June 30, 2023   67,364    
June 30, 2024   92,908    
June 30, 2025   32,144    
June 30, 2026 and thereafter   121,263    
Total $ 1,173,907    

 

v3.20.2
Fair Value of Financial Instruments (Tables)
6 Months Ended
Jun. 30, 2020
Fair Value Disclosures [Abstract]  
Fair value of Financial Instruments - Schedule (Table)

.

 

 

    June 30, 2020     December 31, 2019  
    Book Value     Fair Value     Book Value     Fair Value  
Cash and cash equivalents   $ 67,718     $ 67,718     $ 43,561     $ 43,561  
Restricted cash   $ 764     $ 764     $ 490     $ 490  
Accounts receivable   $ 29,563     $ 29,563     $ 34,235     $ 34,235  
Accounts payable   $ 9,776     $ 9,776     $ 15,355     $ 15,355  
Ship mortgage notes and premium   $ 654,694     $ 382,186     $ 653,614     $ 527,005  
Other long-term debt, net of deferred finance costs   $ 506,340     $ 515,907     $ 519,503     $ 529,138  
Due from related parties, long-term   $ 14,658     $ 14,658     $ 42,878     $ 42,878  
Fair Value of Financial Instruments - Non-Recurring Measurements (Table)

 

 

                                 
    Fair Value Measurements at June 30, 2020 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 67,718     $ 67,718     $ —       $ —    
Restricted cash   $ 764     $ 764     $ —       $ —    
Accounts receivable   $ 29,563     $ 29,563     $ —       $ —    
Accounts payable   $ 9,776     $ 9,776     $ —       $ —    
Ship mortgage notes and premium   $ 382,186     $   382,186     $ —       $ —    
Other long-term debt(1)   $   515,907     $        $   515,907     $ —    
Due from related parties, long-term(2)   $ 14,658     $        $ 14,658     $ —    

 

                                 
    Fair Value Measurements at December 31, 2019 Using  
    Total     Level I     Level II     Level III  
Cash and cash equivalents   $ 43,561     $ 43,561     $ —       $ —    
Restricted cash   $ 490     $ 490     $ —       $ —    
Accounts receivable   $ 34,235     $ 34,235     $ —       $ —    
Accounts payable   $ 15,355     $ 15,355     $ —       $ —    
Ship mortgage notes and premium   $ 527,005     $ 527,005     $ —       $ —    
Other long-term debt(1)   $ 529,138     $        $ 529,138     $ —    
Due from related parties, long-term(2)   $ 42,878     $        $ 42,878     $ —    

 

(1) The fair value of the Company’s other long-term debt is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the Company’s creditworthiness.
(2) The fair value of the Company’s long term amounts due from related parties is estimated based on currently available debt with similar contract terms, interest rate and remaining maturities as well as taking into account the counterparty’s creditworthiness.

 

v3.20.2
Commitments and Contigencies (Tables)
6 Months Ended
Jun. 30, 2020
Commitments and Contingencies Disclosure [Abstract]  
Commitments and Contigencies - Minimum Future Commitments (Table)

The future minimum commitments as of June 30, 2020 of Navios Acquisition under its charter-in agreement for vessels delivery are as follows:

 

         
    Amount  
Lease Obligations (Time Charters) for vessels to be delivered:        
12 month period ending        
June 30, 2021     10,397  
June 30, 2022     25,740  
June 30, 2023     33,434  
June 30, 2024     33,526  
June 30, 2025     33,434  
June 30, 2026 and thereafter     264,952  
Total   $ 401,483  

 

v3.20.2
Segment Information (Tables)
6 Months Ended
Jun. 30, 2020
Segment Reporting [Abstract]  
Segment Information - Revenue by Geographic Region (Table)

 

   

                                 
    Three Month
Period ended
June 30, 2020
(unaudited)
    Three Month
Period ended
June 30, 2019
(unaudited)
    Six Month
Period ended
June 30, 2020
(unaudited)
    Six Month
Period ended
June 30, 2019
(unaudited)
 
Asia   $ 87,753     $ 43,466     $ 161,265     $ 101,784  
Europe     16,659       4,232       33,558       9,148  
United States     7,812       10,887       15,258       24,712  
   
 
 
   
 
 
   
 
 
   
 
 
 
Total   $ 112,224     $ 58,585     $ 210,081     $ 135,704  
   
 
 
   
 
 
   
 
 
   
 
 
 

 

v3.20.2
Earnings/ (Loss) per Common Share (Tables)
6 Months Ended
Jun. 30, 2020
Earnings Per Share [Abstract]  
Earnings/ (loss) per Common Share - Calculation per Share (Table)

 

 

 

                                 
    For the Three
Months Ended
June 30, 2020
    For the Three
Months Ended
June 30, 2019
    For the Six
Months Ended
June 30, 2020
    For the Six
Months Ended
June 30, 2019
 
Numerator:                                
Net income/ (loss)   $ 31,017     $ (16,550)     $ 31,886     $ (15,689)  
Less:                                
Dividend declared on restricted shares     (47)     (65)       (94)     (131)  
Undistributed loss attributable to Series C participating preferred shares     —         —         —         (13)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) attributable to common stockholders, basic   $ 30,970     $ (16,615)     $ 31,792     $ (15,833)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Plus:                                
Undistributed income attributable to Series C participating preferred shares     —         —         —         13  
Net income/ (loss) attributable to common stockholders, diluted   $ 30,970     $ (16,615)     $ 31,792     $ (15,820)  
   
 
 
   
 
 
   
 
 
   
 
 
 
Denominator:                                
Denominator for basic net income/ (loss) per share — weighted average shares     15,888,354       13,510,361       15,803,166       13,414,547  
Series C participating preferred shares           —               —    
Denominator for diluted net income/ (loss)  per share — adjusted weighted average shares     16,043,704       13,510,361       15,958,897       13,414,547  
   
 
 
   
 
 
   
 
 
   
 
 
 
Net income/ (loss) per share, basic   $ 1.95     $ (1.23)     $ 2.01     $ (1.18)  
Net income/ (loss) per share, diluted   $ 1.93     $ (1.23)     $ 1.99     $ (1.18)  
   
 
 
   
 
 
   
 
 
   
 
 
 
v3.20.2
Summary of Significant Accounting Policies - Subsidiaries (Table) (Details)
6 Months Ended
Jun. 30, 2020
Aegean Sea Maritime Holdings Inc.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Sub-Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Amorgos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Andros Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Anthikithira Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Antiparos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Amindra Shipping Co.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Sub-Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Crete Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Folegandros Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Ikaria Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Ios Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Cayman Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Kithira Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Kos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Mytilene Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Maritime Acquisition Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Acquisition Finance (U.S.) Inc.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Co-Issuer
Country of Incorporation Delaware
2020 1/1 – 6/30
2019 1/1 – 6/30
Rhodes Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Serifos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Loyalty Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(1)
Country of Incorporation Hong Kong
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Navigator Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(2)
Country of Incorporation Hong Kong
2020 1/1 – 6/30
2019 1/1 – 6/30
Sifnos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Skiathos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Skopelos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Cayman Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Syros Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Thera Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Tinos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Oinousses Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Psara Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Anitpsara Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Samothrace Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Thasos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Limnos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(8)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Skyros Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Alonnisos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(4)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Makronisos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(4)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Iraklia Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Paxos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(5)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Antipaxos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Donoussa Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(6)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Schinousa Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(7)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Acquisition Europe Finance Inc  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Sub-Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Kerkyra Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(3)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Lefkada Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Zakynthos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Leros Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Kimolos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(13)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Samos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Tilos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Delos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Agistri Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Operating Subsidiary
Country of Incorporation Malta
2020 1/1 – 6/30
2019 1/1 – 6/30
Olivia Enterprises Corp.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(10)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Cyrus Investments Corp.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(10)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Doxa International Corp.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(10)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Tzia Shipping Corp.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(10)
Country of Incorporation Marshall Is.
2020 6/4 – 6/30
2019  – 
Navios Maritime Midstream Partners GP LLC  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Maritime Midstream Operating LLC  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Sub-Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Maritime Midstream Partners L.P.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Sub-Holding Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Navios Maritime Midstream Partners Finance (US) Inc.  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Co-borrower
Country of Incorporation Delaware
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Kannika Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company
Country of Incorporation Hong Kong
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Ocean Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(11)
Country of Incorporation Hong Kong
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Saowalak Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation British Virgin Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Kieran Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation British Virgin Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Shinyo Dream Limited  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Former Vessel-Owning Company(12)
Country of Incorporation Hong Kong
2020 1/1 – 6/30
2019 1/1 – 6/30
Sikinos Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 1/1 – 6/30
Alkmene Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(14)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 — 
Persephone Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(14)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 — 
Rhea Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(14)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 — 
Aphrodite Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(14)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 — 
Dione Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(14)
Country of Incorporation Marshall Is.
2020 1/1 – 6/30
2019 — 
Bole Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Boysenberry Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Brandeis Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Buff Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Cadmium Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Celadon Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
Cerulean Shipping Corporation  
Entity Listings [Line Items]  
Subsidiary or Equity Method Investee, Nature of Operations Vessel-Owning Company(15)
Country of Incorporation Marshall Is.
2020 6/29 – 6/30
2019 — 
v3.20.2
Description of Organization and Business Operations (Details Narrative)
$ / shares in Units, $ in Thousands
6 Months Ended 10 Months Ended 11 Months Ended 12 Months Ended
Jun. 30, 2020
USD ($)
shares
Oct. 31, 2019
USD ($)
$ / shares
shares
Nov. 29, 2019
USD ($)
Dec. 31, 2019
shares
Dec. 18, 2013
Property, Plant and Equipment [Line Items]          
Entity date of incorporation Mar. 14, 2008        
Entity date of Initial Public Offering Jul. 01, 2008        
Common stock shares outstanding | shares 16,089,890     15,873,391  
Navios Holdings          
Property, Plant and Equipment [Line Items]          
Navios Holdings' voting interest in Navios Acquisition 30.20%        
Noncontrolling Interest, Ownership Percentage by Parent 30.50%        
Common Stock [Member] | Registered Direct Offering          
Property, Plant and Equipment [Line Items]          
Issuance of common shares | shares   1,875,000      
Sale of Stock, Price Per Share | $ / shares   $ 8.00      
Gross proceeds   $ 15,000      
Agents' costs   675      
Offering costs   957      
Net proceeds   $ 13,368      
Common Stock [Member] | Continuous Offering Program Sales Agreement          
Property, Plant and Equipment [Line Items]          
Issuance of common shares | shares 486,519        
Net proceeds $ 3,047        
Common Stock [Member] | Continuous Offering Program Sales Agreement | Maximum [Member]          
Property, Plant and Equipment [Line Items]          
Sale of Stock, Consideration Received     $ 25,000    
Navios Europe I          
Property, Plant and Equipment [Line Items]          
Number of vessels acquired         10
Navios Holdings' voting interest in Navios Acquisition       50.00%  
Two LR1 and Three MR1 Product Tankers | Navios Europe I          
Property, Plant and Equipment [Line Items]          
Number of vessels acquired 5     5  
v3.20.2
Summary of Significant Accounting Policies - Options to extend or terminate a lease (Table) (Details)
$ in Thousands
6 Months Ended
Jun. 30, 2020
USD ($)
Hector N | Extention for one year  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate $ 15,800
Nave Sextans | Extention for one year  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 18,750
Nave Pulsar | Extention for one year  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 16,590
Nave Rigel | Charter for one year  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 17,063
Nave Cetus | Extention for six months  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 16,788
Nave Equinox | Extention for six months  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 16,788
Nave Aquila | Extention for one year  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 16,886
Nave Titan | Extention for 30 to 90 days  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 12,838
Nave Titan | Extention for last 30 days  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 15,306
TBN 1 | Extention for five years  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate 29,751
TBN 2 | Extention for five years  
Property, Plant and Equipment [Line Items]  
Charter hire daily rate $ 29,751
v3.20.2
Summary of Significant Accounting Policies (Details Narrative)
$ in Thousands
3 Months Ended 4 Months Ended 6 Months Ended 9 Months Ended
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Mar. 25, 2019
USD ($)
May 10, 2019
USD ($)
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Oct. 08, 2019
USD ($)
Dec. 31, 2019
USD ($)
Property, Plant and Equipment [Line Items]                
Revenues $ 112,224 $ 58,585     $ 210,081 $ 135,704    
Accounts Receivable, after Allowance for Credit Loss, Current 29,563       29,563     $ 34,235
Time charter                
Property, Plant and Equipment [Line Items]                
Revenues 74,824 41,143     129,166 88,735    
Pooling arrangements                
Property, Plant and Equipment [Line Items]                
Revenues 16,682 13,430     39,358 32,596    
Voyage contracts                
Property, Plant and Equipment [Line Items]                
Revenues 0 3,639     9,713 9,678    
Capitalized Contract Cost, Gross 0       0     103
Accounts Receivable, after Allowance for Credit Loss, Current 1,910       1,910     $ 12,219
Profit sharing                
Property, Plant and Equipment [Line Items]                
Revenues $ 20,718 $ 373     $ 31,844 $ 4,695    
Shinyo Ocean                
Property, Plant and Equipment [Line Items]                
Vessel type       2001-built VLCC        
Vessel capacity in DWT       281,395        
Sale price       $ 12,525        
C. Dream                
Property, Plant and Equipment [Line Items]                
Vessel type     2000-built VLCC          
Vessel capacity in DWT     298,570          
Sale price     $ 21,750          
Nave Electron                
Property, Plant and Equipment [Line Items]                
Vessel type             2002-built VLCC  
Vessel capacity in DWT             305,178  
Sale price             $ 25,250  
v3.20.2
Cash and Cash Equivalents and Restricted Cash - Schedule (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Jun. 30, 2019
Dec. 31, 2018
Cash and Cash Equivalents [Abstract]        
Cash on hand and at banks $ 67,718 $ 43,561    
Restricted cash 764 490    
Total cash, cash equivalents and restricted cash $ 68,482 $ 44,051 $ 41,962 $ 46,609
v3.20.2
Inventories, Prepaid Expenses and Other Current Assets (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Deferred Costs, Capitalized, Prepaid, and Other Assets Disclosure [Abstract]    
Inventories $ 5,440 $ 6,208
Advances for working capital purposes 5,350 7,250
Insurance claims 3,384 4,785
Voyage charters deferred contract costs and other 969 791
Total inventories, prepaid expenses and other current assets $ 15,143 $ 19,034
v3.20.2
Vessels, Net (Table) (Details) - USD ($)
$ in Thousands
6 Months Ended 12 Months Ended
Jun. 30, 2020
Dec. 31, 2019
Dec. 31, 2018
Property, Plant and Equipment [Line Items]      
Balance $ 1,318,656 $ 1,348,251  
Cost      
Property, Plant and Equipment [Line Items]      
Balance 1,708,356 1,704,702 $ 1,687,274
Additions/ (Depreciation) 3,654 102,637  
Disposals   (77,922)  
Impairment loss   (7,287)  
Accumulated Depreciation      
Property, Plant and Equipment [Line Items]      
Balance (389,700) (356,451) (303,669)
Additions/ (Depreciation) (33,249) (63,935)  
Disposals   11,153  
Net Book Value      
Property, Plant and Equipment [Line Items]      
Balance 1,318,656 1,348,251 $ 1,383,605
Additions/ (Depreciation)   38,702  
Additions/ (Depreciation) $ (29,595)    
Disposals   (66,769)  
Impairment loss   $ (7,287)  
v3.20.2
Vessels, Net (Details Narrative)
$ in Thousands
3 Months Ended 4 Months Ended 6 Months Ended 9 Months Ended 12 Months Ended
Mar. 25, 2019
USD ($)
May 10, 2019
USD ($)
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Oct. 08, 2019
USD ($)
Dec. 31, 2019
USD ($)
Dec. 18, 2013
Property, Plant and Equipment [Line Items]              
Payments to acquire vessels     $ 44,623 $ 5,563      
Navios Europe I              
Property, Plant and Equipment [Line Items]              
Number of vessels acquired             10
Two LR1 and Three MR1 Product Tankers | Navios Europe I              
Property, Plant and Equipment [Line Items]              
Number of vessels acquired     5     5  
Payments to Acquire Businesses, Gross           $ 84,430  
Amount of loan used to finance purchase of vessel           32,500  
Accounts Receivable, Sale           33,210  
C. Dream              
Property, Plant and Equipment [Line Items]              
Vessel type 2000-built VLCC            
Vessel capacity in DWT 298,570            
Sale price $ 21,750            
Gain (Loss) on Sale of Assets and Asset Impairment Charges $ 651            
Shinyo Ocean              
Property, Plant and Equipment [Line Items]              
Vessel type   2001-built VLCC          
Vessel capacity in DWT   281,395          
Sale price   $ 12,525          
Nave Electron              
Property, Plant and Equipment [Line Items]              
Vessel type         2002-built VLCC    
Vessel capacity in DWT         305,178    
Sale price         $ 25,250    
Other Regulatory Assets (Liabilities) [Member]              
Property, Plant and Equipment [Line Items]              
Payments to acquire vessels     $ 3,654 $ 5,563   $ 18,207  
v3.20.2
Intangible Assets Other Than Goodwill - Amortization (Expense) / Income (Table) (Details) - USD ($)
$ in Thousands
3 Months Ended 6 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Jun. 30, 2020
Jun. 30, 2019
Goodwill and Intangible Assets Disclosure [Abstract]        
Favorable lease terms charter-out $ 0 $ (1,319) $ 0 $ (2,639)
Total $ 0 $ (1,319) $ 0 $ (2,639)
v3.20.2
Intangible Assets Other Than Goodwill (Details Narrative)
3 Months Ended 6 Months Ended 9 Months Ended 10 Months Ended
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Sep. 30, 2019
USD ($)
Oct. 30, 2019
USD ($)
Dec. 31, 2019
USD ($)
Finite-Lived Intangible Assets [Line Items]              
Intangible Assets, Gross (Excluding Goodwill) $ 0   $ 0       $ 0
Revenues $ 112,224,000 $ 58,585,000 $ 210,081,000 $ 135,704,000      
Nave Constellation              
Finite-Lived Intangible Assets [Line Items]              
Charter hire daily rate           $ 48,153  
Nave Constellation | Minimum [Member]              
Finite-Lived Intangible Assets [Line Items]              
Revenues           $ 54,388,000  
Nave Universe              
Finite-Lived Intangible Assets [Line Items]              
Charter hire daily rate         $ 48,153    
Nave Universe | Minimum [Member]              
Finite-Lived Intangible Assets [Line Items]              
Revenues         $ 54,388,000    
Nave Constellation and Nave Universe              
Finite-Lived Intangible Assets [Line Items]              
Number of vessels           2  
v3.20.2
Assets/ Liabilities Associated with Assets Held for Sale (Details Narrative) - USD ($)
$ in Thousands
6 Months Ended
Jun. 30, 2020
Dec. 31, 2019
Property, Plant and Equipment [Line Items]    
Long-term Debt, Gross $ 1,173,907 $ 1,187,138
Hamburg Commercial Bank AG    
Property, Plant and Equipment [Line Items]    
Long-term Debt, Gross 41,700  
Navios Europe II | Containers    
Property, Plant and Equipment [Line Items]    
Property, Plant and Equipment, Additions $ 79,080  
v3.20.2
Investment in Affiliates (Details Narrative)
$ in Thousands
2 Months Ended 3 Months Ended 4 Months Ended 6 Months Ended 7 Months Ended 12 Months Ended
Feb. 18, 2015
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Mar. 31, 2017
USD ($)
Apr. 21, 2020
USD ($)
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Dec. 31, 2015
USD ($)
Dec. 31, 2019
USD ($)
Dec. 31, 2018
USD ($)
Dec. 18, 2013
USD ($)
Oct. 09, 2013
Schedule of Equity Method Investments [Line Items]                        
Income (Loss) from Equity Method Investments   $ 0 $ 889     $ (13,900) $ 1,734          
Payments to Acquire Property, Plant, and Equipment           44,623 5,563          
Proceeds from Lines of Credit           133,054 98,201          
Investments in and Advance to Affiliates, Subsidiaries, Associates, and Joint Ventures   0       0     $ 6,650      
Due from Related Parties, Noncurrent   14,658       14,658     42,878      
Due from Related Parties, Current   $ 2,039       2,039     $ 16,688      
Equity Method Investment, Other than Temporary Impairment           13,900 0          
Navios Europe I                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage                       47.50%
Number of vessels acquired                     10  
Navios Holdings' voting interest in Navios Acquisition                 50.00%      
Income (Loss) from Equity Method Investments     297     $ 583            
Navios Europe I | Two LR1 and Three MR1 Product Tankers                        
Schedule of Equity Method Investments [Line Items]                        
Number of vessels acquired   5       5     5      
Cost of acquired vessels           $ 84,627            
Navios Europe I | Navios Holdings                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage                       47.50%
Navios Holdings' voting interest in Navios Acquisition                 50.00%      
Navios Europe I | Navios Maritime Partners L.P.                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage                       5.00%
Navios Holdings' voting interest in Navios Acquisition                 0.00%      
Navios Europe I | Navios Holdings, Navios Acquisition and Navios Partners | Navios Revolving Loans I                        
Schedule of Equity Method Investments [Line Items]                        
Loan portion                     $ 24,100  
Line of Credit Facility, Increase (Decrease), Net                   $ 30,000    
Navios Europe I | Navios Holdings, Navios Acquisition and Navios Partners | Navios Term Loans I                        
Schedule of Equity Method Investments [Line Items]                        
Loan portion                     $ 10,000  
Navios Europe II                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage 47.50%                      
Number of vessels acquired               14        
Loan portion                 $ 20,662      
Navios Holdings' voting interest in Navios Acquisition 50.00%                      
Income (Loss) from Equity Method Investments   $ 0 $ 592                  
Payments to Acquire Property, Plant, and Equipment               $ 145,550        
Variable Interest Entity, Reporting Entity Involvement, Maximum Loss Exposure, Amount                 51,558      
Investments in and Advance to Affiliates, Subsidiaries, Associates, and Joint Ventures                 6,650      
Due from Related Parties, Noncurrent                 28,220      
Due from Related Parties, Current                 $ 16,688      
[custom:IncomeLossFromEquityMethodInvestmentsEquityMethodInvestmentOtherThanTemporaryImpairment]   13,900                    
Equity Method Investment, Other than Temporary Impairment           13,900 $ 1,151          
Navios Europe II | Senior Loan II                        
Schedule of Equity Method Investments [Line Items]                        
Proceeds from Lines of Credit               131,550        
Navios Europe II | Junior Loan II                        
Schedule of Equity Method Investments [Line Items]                        
Debt Instrument, Face Amount               182,150        
Long-term Debt, Fair Value               99,147        
Debt Instrument, Decrease, Forgiveness         $ 5,000              
Navios Europe II | Navios Holdings                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage 47.50%                      
Navios Holdings' voting interest in Navios Acquisition 50.00%                      
Navios Europe II | Navios Maritime Partners L.P.                        
Schedule of Equity Method Investments [Line Items]                        
Ownership percentage 5.00%                      
Navios Holdings' voting interest in Navios Acquisition 0.00%                      
Navios Europe II | Navios Holdings, Navios Acquisition and Navios Partners | Navios Revolving Loans II                        
Schedule of Equity Method Investments [Line Items]                        
Line of Credit Facility, Increase (Decrease), Net       $ 14,000                
Line of Credit Facility, Maximum Borrowing Capacity   $ 57,500       $ 57,500   43,500        
Navios Europe II | Navios Holdings, Navios Acquisition and Navios Partners | Navios Term Loans II                        
Schedule of Equity Method Investments [Line Items]                        
Loan portion               $ 14,000        
v3.20.2
Dividends Payable (Details Narrative)
6 Months Ended
Jun. 30, 2020
$ / shares
Installment 1 - FY 2020  
Dividends Payable [Line Items]  
Dividends Payable, Date Declared Jan. 22, 2020
Dividends Payable, Amount Per Share $ 0.30
Dividends Payable, Date to be Paid Apr. 07, 2020
Dividends Payable, Date of Record Mar. 05, 2020
Installment 2 - FY 2020  
Dividends Payable [Line Items]  
Dividends Payable, Date Declared Apr. 29, 2020
Dividends Payable, Amount Per Share $ 0.30
Dividends Payable, Date to be Paid Jul. 09, 2020
Dividends Payable, Date of Record Jun. 03, 2020
v3.20.2
Accrued Expenses - Schedule (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Accrued Expenses    
Accrued voyage expenses $ 2,052 $ 2,643
Accrued loan interest 8,286 10,468
Accrued legal and professional fees 3,740 1,226
Total accrued expenses $ 14,078 $ 14,337
v3.20.2
Borrowings - Schedule (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Line of Credit Facility [Line Items]    
Long-term Debt, Gross $ 1,173,907 $ 1,187,138
Less: Deferred finance costs, net (13,318) (14,638)
Add: bond premium 445 617
Less: current portion of credit facilities, net of deferred finance costs (61,261) (141,214)
Less: current portion of Sale and Leaseback Agreements, net of deferred finance costs (38,695) (31,739)
Total long-term borrowings, net of current portion, bond premium and deferred finance costs 1,061,078 1,000,164
Sale and Leaseback Agreements $71,500    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 58,094 62,563
Sale and Leaseback Agreements $103,155    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 93,189 97,723
Sale and Leaseback Agreements $15,000    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 13,281 14,219
Sale and Leaseback Agreements $47,220    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 43,133 45,858
Sale and Leaseback Agreements $90,811    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 85,158 90,811
Sale and Leaseback Agreements $72,053    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 72,053 0
Ship Mortgage Notes $670,000    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 658,000 658,000
Line of Credit [Member]    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 808,999 875,964
Eurobank Ergasias S.A. $52,000    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 0 28,758
DVB Bank S.E. and Credit Agricole Corporate and Investment Bank    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 37,891 39,453
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 19,065 39,173
BNP Paribas $44,000    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 26,000 28,000
HSH $24,000    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 17,135 18,280
HCOB $31,800    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 30,108 31,800
Deutsche Bank AG Filiale Deutschlandgeschaft    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross 0 32,500
Eurobank Ergasias S.A. $20,800    
Line of Credit Facility [Line Items]    
Long-term Debt, Gross $ 20,800 $ 0
v3.20.2
Borrowings - Long-Term Debt Obligations (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Long-Term Debt Obligations:    
June 30, 2021 $ 102,608  
June 30, 2022 757,620  
June 30, 2023 67,364  
June 30, 2024 92,908  
June 30, 2025 32,144  
June 30, 2026 and thereafter 121,263  
Total $ 1,173,907 $ 1,187,138
v3.20.2
Borrowings (Details Narrative) - USD ($)
$ in Thousands
3 Months Ended 6 Months Ended 11 Months Ended 12 Months Ended
Mar. 23, 2018
Jun. 30, 2020
Jun. 30, 2019
Dec. 06, 2010
Dec. 31, 2019
Debt Instrument [Line Items]          
Secured Debt   $ 150,999      
Proceeds from Lines of Credit   133,054 $ 98,201    
Long-term Debt, Gross   1,173,907     $ 1,187,138
Sale Leaseback Transaction, Net Book Value   364,908      
Other Assets, Noncurrent   $ 9,383     5,456
Sale and Leaseback Agreements $72,053          
Debt Instrument [Line Items]          
Vessels financed   one MR1, one MR2 and two LR1s      
Line of Credit Facility, Frequency of Payments   quarterly      
Interest rate description   LIBOR plus a margin ranging from 390 bps to 410 bps      
Long-term Debt, Gross   $ 72,053     0
Finance Lease, Liability   72,053      
Sale Leaseback Transaction, Quarterly Rental Payments   1,791      
Deposits [Member]          
Debt Instrument [Line Items]          
Other Assets, Noncurrent   9,058     5,456
Minimum [Member]          
Debt Instrument [Line Items]          
Minimum liquidity required for compliance   40,000      
Minimum net worth required for compliance   $ 50,000      
Total Liabilities to Total Assets ratio   75.00%      
Minimum [Member] | Sale and Leaseback Agreements $72,053          
Debt Instrument [Line Items]          
Repayment period   four      
Maximum [Member]          
Debt Instrument [Line Items]          
Minimum net worth required for compliance   $ 135,000      
Total Liabilities to Total Assets ratio   80.00%      
Maximum [Member] | Sale and Leaseback Agreements $72,053          
Debt Instrument [Line Items]          
Repayment period   seven      
Finance Lease Liability Periodic Payment Terms, Balloon Payment to be Paid   $ 26,963      
Eurobank Ergasias S.A. $52,000          
Debt Instrument [Line Items]          
Early repayment of debt   27,534      
Write-off debt   $ 50      
Line of Credit Facility, Initiation Date   Dec. 06, 2010      
Line of Credit Facility, Maximum Borrowing Capacity   $ 52,000      
Proceeds from Lines of Credit       $ 46,200  
Number of loan tranches   2      
Amount of each tranche   $ 23,100      
Vessels financed   two LR1 product tanker      
Repayment installments   32      
Line of Credit Facility, Frequency of Payments   quarterly      
Line of Credit Facility, Periodic Payment   $ 306      
Balloon payment on the last repayment date   $ 13,308      
Interest rate description   LIBOR plus 300 bps      
Long-term Debt, Gross   $ 0     28,758
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB          
Debt Instrument [Line Items]          
Line of Credit Facility, Maximum Borrowing Capacity   $ 125,000      
Number of loan tranches   5      
Interest rate description   LIBOR plus 295 bps      
Long-term Debt, Gross   $ 19,065     39,173
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Nave Equinox and Nave Pyxis          
Debt Instrument [Line Items]          
Early repayment of debt $ 26,770        
Write-off debt   297      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Nave Sextans          
Debt Instrument [Line Items]          
Early repayment of debt $ 16,272        
Write-off debt   $ 26      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Four Tranches          
Debt Instrument [Line Items]          
Number of loan tranches   4      
Repayment installments   20      
Line of Credit Facility, Frequency of Payments   quarterly      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Four Tranches | Minimum [Member]          
Debt Instrument [Line Items]          
Line of Credit Facility, Periodic Payment   $ 435      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Four Tranches | Maximum [Member]          
Debt Instrument [Line Items]          
Line of Credit Facility, Periodic Payment   $ 1,896      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Fifth Tranche          
Debt Instrument [Line Items]          
Number of loan tranches   5      
Repayment installments   16      
Line of Credit Facility, Frequency of Payments   quarterly      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Fifth Tranche | Minimum [Member]          
Debt Instrument [Line Items]          
Line of Credit Facility, Periodic Payment   $ 709      
Deutsche Bank AG Filiale Deutschlandgeschaft and Skandinaviska Enskilda Banken AB | Fifth Tranche | Maximum [Member]          
Debt Instrument [Line Items]          
Line of Credit Facility, Periodic Payment   803      
Deutsche Bank AG Filiale Deutschlandgeschaft          
Debt Instrument [Line Items]          
Early repayment of debt   32,500      
Line of Credit Facility, Maximum Borrowing Capacity   $ 32,500      
Vessels financed   one MR1 and two LR1s      
Repayment installments   1      
Interest rate description   LIBOR plus 400 bps      
Long-term Debt, Gross   $ 0     32,500
Eurobank Ergasias S.A. $20,800          
Debt Instrument [Line Items]          
Line of Credit Facility, Maximum Borrowing Capacity   $ 20,800      
Vessels financed   two LR1s      
Repayment installments   16      
Line of Credit Facility, Frequency of Payments   quarterly      
Line of Credit Facility, Periodic Payment   $ 800      
Balloon payment on the last repayment date   $ 8,000      
Interest rate description   LIBOR plus 300 bps      
Long-term Debt, Gross   $ 20,800     $ 0
Hamburg Commercial Bank AG          
Debt Instrument [Line Items]          
Line of Credit Facility, Maximum Borrowing Capacity   $ 41,700      
Vessels financed   seven      
Repayment installments   4      
Line of Credit Facility, Frequency of Payments   quarterly      
Balloon payment on the last repayment date   $ 21,700      
Interest rate description   LIBOR plus 375 bps      
Long-term Debt, Gross   $ 41,700      
Subsidiaries [Member] | Navios Acquistion          
Debt Instrument [Line Items]          
Ownreship percentage   100.00%      
Liquidity per vessel | Minimum [Member]          
Debt Instrument [Line Items]          
Minimum liquidity required for compliance   $ 1,000      
Certain Facilities | Minimum [Member]          
Debt Instrument [Line Items]          
Total Liabilities to Total Assets ratio         80.00%
Certain Facilities | Maximum [Member]          
Debt Instrument [Line Items]          
Total Liabilities to Total Assets ratio         85.00%
Existing 2021 Notes          
Debt Instrument [Line Items]          
Debt Instrument Issuance Date   Nov. 13, 2013      
Debt Instrument, Face Amount   $ 610,000      
Debt Instrument, Maturity Date   Nov. 15, 2021      
Fixed rate   8.125%      
Additional 2021 Notes          
Debt Instrument [Line Items]          
Debt Instrument Issuance Date   Mar. 31, 2014      
Debt Instrument, Face Amount   $ 60,000      
Debt instrument, Original issue price percentage   103.25%      
Ship Mortgage Notes $670,000          
Debt Instrument [Line Items]          
Redemption price percentage   106.094%      
Cash collateral   $ 25,405      
Extinguishment of Debt, Amount         $ 12,000
Early repayment of debt         9,950
Write-off debt   1,940      
Long-term Debt, Gross   $ 658,000     $ 658,000
Ship Mortgage Notes $670,000 | Redemption upon the occurence of certain change of control events          
Debt Instrument [Line Items]          
Redemption price percentage   101.00%      
v3.20.2
Fair value of Financial Instruments - Schedule (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Fair Value Disclosures [Abstract]    
Cash and cash equivalents - Book Value $ 67,718 $ 43,561
Cash and cash equivalents - Fair Value 67,718 43,561
Restricted cash - Book Value 764 490
Restricted cash - Fair Value 764 490
Accounts receivable - Book Value 29,563 34,235
Accounts receivable - Fair Value 29,563 34,235
Accounts payable - Book Value 9,776 15,355
Accounts payable - Fair Value 9,776 15,355
Ship mortgage notes and premium - Book Value 654,694 653,614
Ship mortgage notes and premium - Fair Value 382,186 527,005
Other long-term debt, net of deferred finance costs - Book Value 506,340 519,503
Other long-term debt, net of deferred finance costs - Fair Value 515,907 529,138
Due from related parties, long-term - Book Value 14,658 42,878
Due from related parties, long-term - Fair Value $ 14,658 $ 42,878
v3.20.2
Fair Value of Financial Instruments - Non-Recurring Measurements (Table) (Details) - USD ($)
$ in Thousands
Jun. 30, 2020
Dec. 31, 2019
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items]    
Cash and cash equivalents $ 67,718 $ 43,561
Restricted cash 764 490
Accounts receivable 29,563 34,235
Accounts payable 9,776 15,355
Ship mortgage notes and premium 382,186 527,005
Other long-term debt 515,907 529,138
Due from related parties, long-term 14,658 42,878
Fair Value, Inputs, Level 1 [Member]    
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items]    
Cash and cash equivalents 67,718 43,561
Restricted cash 764 490
Accounts receivable 29,563 34,235
Accounts payable 9,776 15,355
Ship mortgage notes and premium 382,186 527,005
Other long-term debt 0 0
Due from related parties, long-term 0 0
Fair Value, Inputs, Level 2 [Member]    
Fair Value, Assets and Liabilities Measured on Recurring and Nonrecurring Basis [Line Items]    
Cash and cash equivalents 0 0
Restricted cash 0 0
Accounts receivable 0 0
Accounts payable 0 0
Ship mortgage notes and premium 0 0
Other long-term debt 515,907 529,138
Due from related parties, long-term $ 14,658 $ 42,878
v3.20.2
Transactions with Related Parties (Details Narrative)
3 Months Ended 6 Months Ended 7 Months Ended 12 Months Ended
Jun. 30, 2020
USD ($)
Jun. 30, 2019
USD ($)
Mar. 31, 2017
USD ($)
Jun. 30, 2020
USD ($)
Jun. 26, 2020
USD ($)
Jun. 30, 2019
USD ($)
Jul. 31, 2019
USD ($)
Dec. 31, 2015
USD ($)
Dec. 31, 2019
USD ($)
Jun. 29, 2020
Dec. 18, 2013
Related Party Transaction [Line Items]                      
Payments to Acquire Property, Plant, and Equipment       $ 44,623,000   $ 5,563,000          
Professional and Contract Services Expense $ 29,836,000 $ 26,481,000   59,673,000   54,387,000          
General and Administrative Expense 6,293,000 6,808,000   10,247,000   11,945,000          
Due to Related Parties, Current 0     0         $ 32,150,000    
Assets Held-for-sale, Not Part of Disposal Group 83,006,000     83,006,000         0    
Due from Related Parties, Current 2,039,000     2,039,000         16,688,000    
Navios Holdings                      
Related Party Transaction [Line Items]                      
Due from Related Parties 16,697,000     16,697,000         14,658,000    
Other Regulatory Assets (Liabilities) [Member]                      
Related Party Transaction [Line Items]                      
Payments to Acquire Property, Plant, and Equipment       3,654,000   5,563,000     18,207,000    
Navios Europe I                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                     10
Navios Europe II                      
Related Party Transaction [Line Items]                      
Number of vessels acquired               14      
Payments to Acquire Property, Plant, and Equipment               $ 145,550,000      
Due from Related Parties 0     0         44,908,000    
Assets Held-for-sale, Not Part of Disposal Group 1,845,000     1,845,000              
Loans and Leases Receivable, Related Parties                 20,662,000    
Interest Receivable, Noncurrent                 7,558,000    
Due from Related Parties, Current                 $ 16,688,000    
Navios Europe II | Navios Holdings, Navios Acquisition and Navios Partners | Navios Revolving Loans II                      
Related Party Transaction [Line Items]                      
Line of Credit Facility, Maximum Borrowing Capacity 57,500,000     $ 57,500,000       $ 43,500,000      
Line of Credit Facility, Increase (Decrease), Net     $ 14,000,000                
LR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                 2    
MR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                 3    
Containers | Navios Europe II                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                   7  
Management Agreement                      
Related Party Transaction [Line Items]                      
Duration of agreement       two years              
Management Agreement | Navios Europe I                      
Related Party Transaction [Line Items]                      
Duration of agreement       two years              
Management Agreement | MR2 Product Tanker Vessel                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings             $ 6,500   $ 6,800    
Management Agreement | MR2 Chemical Tanker Vessel                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings             6,500   6,800    
Management Agreement | LR1 Product Tanker Vessel                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings             7,150   7,230    
Management Agreement | LR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings                 7,230    
Management Agreement | VLCC                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings             $ 9,500   9,700    
Management Agreement | Per Vessel                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings                 $ 50.00    
Annual increase in daily management fee                 3.00%    
Management Agreement | Per Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings                 $ 50.00    
Management Agreement | Per Vessel | Navios Europe I | After January 2022                      
Related Party Transaction [Line Items]                      
Annual increase in daily management fee                 3.00%    
Management Agreement | MR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings                 $ 6,800    
Management Agreement | Container Vessel of 1500 TEU up to 1999 TEU | Navios Europe II                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings         $ 5,300            
Management Agreement | Container Vessel of 2000 TEU up to 3450 TEU | Navios Europe II                      
Related Party Transaction [Line Items]                      
Daily management fee to Navios Holdings         $ 6,100            
Administrative services agreement with the Manager                      
Related Party Transaction [Line Items]                      
General and Administrative Expense $ 2,985,000 $ 2,761,000   $ 5,987,000   $ 5,626,000          
Administrative services agreement with the Manager | LR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                 2    
Administrative services agreement with the Manager | MR1 Product Tanker Vessel | Navios Europe I                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                 3    
Administrative services agreement with the Manager | Containers | Navios Europe II                      
Related Party Transaction [Line Items]                      
Number of vessels acquired                   7  
v3.20.2
Commitments and Contigencies - Minimum Future Commitments (Table) (Details)
$ in Thousands
Jun. 30, 2020
USD ($)
Commitments and Contingencies Disclosure [Abstract]  
June 30, 2021 $ 10,397
June 30, 2022 25,740
June 30, 2023 33,434
June 30, 2024 33,526
June 30, 2025 33,434
June 30, 2026 and thereafter 264,952
Total $ 401,483
v3.20.2
Commitments and Contigencies (Details Narrative)
3 Months Ended 6 Months Ended 21 Months Ended
Mar. 31, 2019
Jun. 30, 2020
Sep. 30, 2019
Sep. 30, 2018
Two Newbuild Japanese VLCCs        
Lessor, Lease, Description [Line Items]        
Term of finance lease     12-year  
Number of vessels       2
First Newbuild Japanese VLCC        
Lessor, Lease, Description [Line Items]        
Date of delivery   fourth quarter of 2020    
Second Newbuild Japanese VLCC        
Lessor, Lease, Description [Line Items]        
Date of delivery   first quarter of 2021    
Third Newbuild Japanese VLCC        
Lessor, Lease, Description [Line Items]        
Term of finance lease 12 year      
Date of delivery   second quarter of 2021    
Fourth Newbuild Japanese VLCC        
Lessor, Lease, Description [Line Items]        
Term of finance lease   twelve year    
Date of delivery   second quarter of 2022    
v3.20.2
Common Stock (Details Narrative) - USD ($)
$ / shares in Units, $ in Thousands
3 Months Ended 6 Months Ended 10 Months Ended 11 Months Ended 12 Months Ended 26 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Jun. 30, 2020
Jun. 30, 2019
Oct. 31, 2019
Nov. 29, 2019
Dec. 31, 2018
Dec. 31, 2017
Feb. 28, 2020
Dec. 31, 2019
Feb. 28, 2018
Class of Stock [Line Items]                      
Common Stock, Shares Authorized 250,000,000   250,000,000             250,000,000  
Common Stock, Par or Stated Value Per Share $ 0.0001   $ 0.0001             $ 0.0001  
Common Stock, Shares, Issued 16,089,890   16,089,890             15,873,391  
Common Stock, Shares, Outstanding 16,089,890   16,089,890             15,873,391  
Share-based Payment Arrangement, Noncash Expense     $ 246 $ 460              
Restricted Stock [Member] | Directors and/or officers | Share-based awards, 2018                      
Class of Stock [Line Items]                      
Stock Issued During Period, Shares, Restricted Stock Award, Net of Forfeitures     0       129,269        
Vesting period     four years                
Share-based Compensation Arrangement by Share-based Payment Award, Equity Instruments Other than Options, Grants in Period, Weighted Average Grant Date Fair Value             $ 5.36        
Share-based awards, Total fair value on grant date             $ 693        
Share-based Payment Arrangement, Noncash Expense $ 47 $ 90 $ 94 179              
Share-based Compensation Arrangement by Share-based Payment Award, Equity Instruments Other than Options, Nonvested, Number 95,452   95,452             96,952  
Share-based Payment Arrangement, Nonvested Award, Excluding Option, Cost Not yet Recognized, Amount $ 233   $ 233                
Share-based Payment Arrangement, Nonvested Award, Cost Not yet Recognized, Period for Recognition     2 years 6 months                
Restricted Stock [Member] | Directors and/or officers | Share-based awards, 2017                      
Class of Stock [Line Items]                      
Stock Issued During Period, Shares, Restricted Stock Award, Net of Forfeitures     0         118,328      
Vesting period     four years                
Share-based Compensation Arrangement by Share-based Payment Award, Equity Instruments Other than Options, Grants in Period, Weighted Average Grant Date Fair Value               $ 17.7      
Share-based awards, Total fair value on grant date               $ 2,094      
Share-based Payment Arrangement, Noncash Expense $ 76 $ 141 $ 152 $ 281              
Share-based Compensation Arrangement by Share-based Payment Award, Equity Instruments Other than Options, Nonvested, Number 58,496   58,496             59,162  
Share-based Payment Arrangement, Nonvested Award, Excluding Option, Cost Not yet Recognized, Amount $ 267   $ 267                
Share-based Payment Arrangement, Nonvested Award, Cost Not yet Recognized, Period for Recognition     1 year 6 months                
Common Stock [Member] | Registered Direct Offering                      
Class of Stock [Line Items]                      
Stock Issued During Period, Shares, New Issues         1,875,000            
Sale of Stock, Price Per Share         $ 8.00            
Gross proceeds         $ 15,000            
Noninterest Expense Offering Cost         675            
Deferred Offering Costs         957            
Stock Issued During Period, Value, New Issues         $ 13,368            
Common Stock [Member] | Continuous Offering Program Sales Agreement                      
Class of Stock [Line Items]                      
Stock Issued During Period, Shares, New Issues     486,519                
Stock Issued During Period, Value, New Issues     $ 3,047                
Common Stock [Member] | Continuous Offering Program Sales Agreement | Maximum [Member]                      
Class of Stock [Line Items]                      
Sale of Stock, Consideration Received Per Transaction           $ 25,000          
Common Stock [Member] | Share repurchase program                      
Class of Stock [Line Items]                      
Stock Repurchase Program, Authorized Amount                     $ 25,000
Stock Repurchase Program, Period in Force                 two years    
Expiration date     February 2020                
Stock Repurchased and Retired During Period, Shares     735,251                
Stock Repurchased and Retired During Period, Value     $ 7,493                
v3.20.2
Segment Information - Revenue by Geographic Region (Table) (Details) - USD ($)
$ in Thousands
3 Months Ended 6 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Jun. 30, 2020
Jun. 30, 2019
Revenues from External Customers and Long-Lived Assets [Line Items]        
Revenues $ 112,224 $ 58,585 $ 210,081 $ 135,704
Asia [Member]        
Revenues from External Customers and Long-Lived Assets [Line Items]        
Revenues 87,753 43,466 161,265 101,784
Europe [Member]        
Revenues from External Customers and Long-Lived Assets [Line Items]        
Revenues 16,659 4,232 33,558 9,148
UNITED STATES        
Revenues from External Customers and Long-Lived Assets [Line Items]        
Revenues $ 7,812 $ 10,887 $ 15,258 $ 24,712
v3.20.2
Segment Information (Details Narrative)
6 Months Ended
Jun. 30, 2020
Segment Reporting [Abstract]  
Number of Reportable Segments 1
v3.20.2
Earnings/ (loss) per Common Share - Calculation per Share (Table) (Details) - USD ($)
$ / shares in Units, $ in Thousands
3 Months Ended 6 Months Ended
Jun. 30, 2020
Mar. 31, 2020
Jun. 30, 2019
Mar. 31, 2019
Jun. 30, 2020
Jun. 30, 2019
Numerator:            
Net income/ (loss) $ 31,017 $ 869 $ (16,550) $ 861 $ 31,886 $ (15,689)
Less:            
Dividend declared on restricted shares (47)   (65)   (94) (131)
Undistributed loss attributable to Series C participating preferred shares 0   0   0 (13)
Net income/ (loss) attributable to common stockholders, basic 30,970   (16,615)   31,792 (15,833)
Plus:            
Undistributed income attributable to Series C participating preferred shares 0   0   0 13
Net income/ (loss) attributable to common stockholders, diluted $ 30,970   $ (16,615)   $ 31,792 $ (15,820)
Denominator:            
Denominator for basic net income/ (loss) per share — weighted average shares 15,888,354   13,510,361   15,803,166 13,414,547
Series C participating preferred shares 0   0   0 0
Denominator for diluted net income/ (loss)  per share — adjusted weighted average shares 16,043,704   13,510,361   15,958,897 13,414,547
Net income/ (loss) per share, basic $ 1.95   $ (1.23)   $ 2.01 $ (1.18)
Net income/ (loss) per share, diluted $ 1.93   $ (1.23)   $ 1.99 $ (1.18)
v3.20.2
Income Taxes (Details Narrative) - USD ($)
$ in Thousands
3 Months Ended 6 Months Ended
Jun. 30, 2020
Jun. 30, 2019
Jun. 30, 2020
Jun. 30, 2019
Income Tax Disclosure [Abstract]        
Greek Tonnage tax $ 69 $ 233 $ 959 $ 399
v3.20.2
Subsequent events (Details Narrative) - USD ($)
$ / shares in Units, $ in Thousands
7 Months Ended
Jul. 28, 2020
Jun. 30, 2020
Ship Mortgage Notes $670,000    
Subsequent Event [Line Items]    
Debt Instrument, Repurchased Face Amount   $ 9,000
Debt Instrument, Repurchase Amount   $ 5,338
Installemnt 3 - FY 2020 | Subsequent Event [Member]    
Subsequent Event [Line Items]    
Dividends Payable, Date Declared Jul. 28, 2020  
Dividends Payable, Amount Per Share $ 0.30  
Dividends Payable, Date of Payment Oct. 08, 2020  
Dividends Payable, Date of Record Sep. 04, 2020