exv10w2



Table of Contents








    Private
    and Confidential



 


 




    DATED
    8 April 2010



 






    SIFNOS
    SHIPPING CORPORATION

    SKIATHOS SHIPPING CORPORATION

    and

    SYROS SHIPPING CORPORATION

    as Borrowers



 






    FORTIS
    BANK

    and

    DVB BANK SE

    as Lenders

    and

    FORTIS BANK

    as Arranger, Swap Bank, Payment Agent

    and Security Trustee

    and

    DVB Bank SE

    as Agent



 






 




    FACILITY
    AGREEMENT FOR A USD 75,000,000



 






    TERM LOAN
    FACILITY



 






    IN THREE
    TRANCHES

              



 




 



     



 



    PIRAEUS



 













 








    Index



 











	 	 	 	 	 	 	 
	

    Clause


	
 
	
    Page

	 

	

    1


	
 
	
    Purpose, Definitions, Construction & Majority Lenders
	
 
	 
	
    1
	 

	

    2


	
 
	
    The Available Commitment and Cancellation
	
 
	 
	
    23
	 

	

    3


	
 
	
    Interest and Interest Periods
	
 
	 
	
    26
	 

	

    4


	
 
	
    Repayment and Prepayment
	
 
	 
	
    29
	 

	

    5


	
 
	
    Fees and Expenses
	
 
	 
	
    32
	 

	

    6


	
 
	
    Payments and Taxes; Accounts and Calculations
	
 
	 
	
    34
	 

	

    7


	
 
	
    Representations and Warranties
	
 
	 
	
    38
	 

	

    8


	
 
	
    Undertakings
	
 
	 
	
    44
	 

	

    9


	
 
	
    Conditions
	
 
	 
	
    54
	 

	

    10


	
 
	
    Events of Default
	
 
	 
	
    56
	 

	

    11


	
 
	
    Indemnities
	
 
	 
	
    62
	 

	

    12


	
 
	
    Unlawfulness and Increased Costs
	
 
	 
	
    63
	 

	

    13


	
 
	
    Application of moneys, set off, pro-rata payments and
    miscellaneous
	
 
	 
	
    65
	 

	

    14


	
 
	
    Accounts
	
 
	 
	
    70
	 

	

    15


	
 
	
    Assignment, transfer and lending office
	
 
	 
	
    72
	 

	

    16


	
 
	
    Arranger, Agent and Security Trustee
	
 
	 
	
    77
	 

	

    17


	
 
	
    Notices and other matters
	
 
	 
	
    92
	 

	

    19


	
 
	
    Governing law
	
 
	 
	
    95
	 

	

    20


	
 
	
    Jurisdiction
	
 
	 
	
    97
	 

	

    Schedule 1 The Lenders and their Commitments


	
 
	 
	
 
	 

	

    Schedule 2 Form of Drawdown Notice


	
 
	 
	
 
	 

	

    Schedule 3 Conditions precedent


	
 
	 
	
 
	 

	

    Schedule 4 Form of Transfer Certificate


	
 
	 
	
 
	 

	

    Schedule 5 Form of Trust Deed


	
 
	 
	
 
	 

	

    Schedule 6 Form of Compliance Certificate


	
 
	 
	
 
	 

	

    Schedule 7 Vessel details


	
 
	 
	
 
	 

	

    Execution Pages


	
 
	 
	
    119
	 

























Table of Contents








    THIS
    AGREEMENT dated   April 2010 is made BY and
    BETWEEN:



 



    (1) SIFNOS SHIPPING CORPORATION, SKIATHOS SHIPPING
    CORPORATION and SYROS SHIPPING CORPORATION as
    Borrowers;



 



    (2) FORTIS BANK and DVB BANK SE as Lenders;



 



    (3) DVB BANK SE as Agent;



 



    (4) FORTIS BANK as Arranger, Account Bank, Payment
    Agent and Security Trustee; and



 



    (5) FORTIS BANK as Swap Bank.



 




    NOW IT IS
    HEREBY AGREED AS FOLLOWS:



 




    1  PURPOSE,
    DEFINITIONS, CONSTRUCTION & MAJORITY LENDERS



 




    1.1  Purpose



 



    This Agreement sets out the terms and conditions on which Fortis
    Bank and DVB Bank SE agree to make available to the Borrowers a
    loan of up to seventy five million Dollars (USD 75,000,000) in
    three equal Tranches, for the purpose of part-financing the
    purchase price of three MR Product Tankers which are to be
    constructed by the Builder.



 




    1.2  Definitions



 



    In this Agreement, unless the context otherwise requires:



 



    “Account Bank” means Fortis Bank acting
    through its office at Vas Sofias 94 & Kerasourtos 115 28
    Athens, Greece or such other Lender as may be designated by the
    Agent as the Account Bank for the purposes of this Agreement;



 



    “Advance” means the principal amount of
    each drawing in respect of the Loan to be made pursuant to
    Clause 2.5;



 



    “Agent” means DVB Bank SE, Nordic Branch
    acting for the purposes of this Agreement through its branch at
    Strandgaten 18, P.O. Box 701 S, 5807 Bergen, Norway (or of such
    other address as may last have been notified to the other
    parties to this Agreement) or such other person as may be
    appointed as agent by the Banks pursuant to clause 16.13;



 



    “Approved Broker” means each of
    Fearnleys A.S., Oslo Shipbrokers A.S., Clarkson Valuations
    Limited, Simpson Spence & Young Shipbrokers Ltd., E.A.
    Gibson Shipbrokers Ltd., Jacq. Pierot Jr. & Sons, Allied
    Shipbroking, Greece, RS Platou ASA, ICAP Shipping Limited, ACM
    Ltd., London, Island Shipbrokers PTE LTD, Singapore or such
    other reputable, independent and first class firm of shipbrokers
    specialising in the valuation of vessels of the relevant type
    appointed by the Agent and agreed with the Borrowers;



 



    “Arranger” means Fortis Bank acting
    through its office at Vas Sofias 94 & Kerasountos 1, 115 28
    Athens, Greece;



 



    “Banking Day” means a day on which
    dealings in deposits in USD are carried on in the London
    Interbank Eurocurrency Market and (other than Saturday or
    Sunday) on which banks are open for business in London,
    Frankfurt, Piraeus and New York City (or any other relevant
    place of payment under clause 6);



 



    “Banks” means, together, the Arranger,
    the Agent, the Payment Agent, the Security Trustee, the Account
    Bank, the Lenders, the Swap Bank and any Transferee Lenders;



 



    “Borrower” means each of SIFNOS SHIPPING
    CORPORATION (“Sifnos”), SKIATHOS SHIPPING
    CORPORATION (“Skiathos”) and SYROS SHIPPING
    CORPORATION (“Syros”) each











Table of Contents







    having its registered office at Trust Company Complex,
    Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands,
    MH96960 and in the plural means all of them;



 



    “Break Costs” means the aggregate amount
    of all losses, premiums, penalties, costs and expenses
    whatsoever certified by the Payment Agent at any time and from
    time to time as having been incurred by the Lenders or any of
    them in maintaining or funding their Contributions or in
    liquidating or re-employing fixed deposits acquired to maintain
    the same as a result of either:



 



    (a) any repayment or prepayment of the Loan or any part
    thereof otherwise than (i) in accordance with
    clause 4.1 or (ii) on an Interest Payment Date whether
    on a voluntary or involuntary basis or otherwise
    howsoever; or



 



    (b) as a result of the Borrowers failing or being incapable
    of drawing an Advance after a relevant Drawdown Notice has been
    given;



 



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



 



    “Charter Assignment” means a specific
    assignment of each Extended Employment Contract required to be
    executed hereunder by any Borrower in favour of the Security
    Trustee (including any notices
    and/or
    acknowledgements
    and/or
    undertakings associated therewith) in such form as the Agent and
    the Majority Lenders may require in their sole discretion;



 



    “Charter Insurances” means all policies
    and contracts of insurance which are from time to time during
    the Facility Period in place or taken out or entered into by or
    for the benefit of the Owners in respect of loss of earnings and
    all benefits thereof (including claims of whatsoever nature and
    return of premiums);



 



    “Charter Insurance Assignment” means a
    first priority assignment of the Charter Insurances executed or
    to be executed by such named insured as the Agent may require in
    favour of the Security Trustee, in such form as the Agent and
    the Majority Lenders may in their sole discretion require;



 



    “Classification” means, in relation to
    each Vessel, the highest class available for a vessel of her
    type with the relevant Classification Society;



 



    “Classification Society” means, in
    relation to each Vessel, any IACS classification society which
    the Lenders shall, at the request of the Borrowers, have agreed
    in writing shall be treated as the classification society in
    relation to such Vessel for the purposes of the relevant Ship
    Security Documents;



 



    “Commitment” means, in relation to the
    Loan in relation to each Lender, the sum set out opposite its
    name in schedule 1 or any replacement thereof and in
    relation to each Tranche in relation to each Lender one third of
    the sum set out opposite its name in schedule 1 or any
    replacement thereof, or otherwise pursuant to the terms of any
    relevant Transfer Certificate as the amount which, subject to
    the terms of this Agreement, it is obliged to advance to the
    Borrowers hereunder in respect of the Loan Facility, in each
    case as such amount may have been reduced
    and/or
    cancelled under this Agreement;



 



    “Compliance Certificate” means a
    certificate substantially in the form set out in schedule 6
    signed by the chief financial officer of the Corporate Guarantor;



 



    “Compulsory Acquisition” means, in
    respect of a Vessel, requisition for title or other compulsory
    acquisition including, if that ship is not released therefrom
    within the Relevant Period, capture, appropriation, forfeiture,
    seizure, detention, deprivation or confiscation howsoever for
    any reason (but excluding requisition for use or hire) by or on
    behalf of any Government Entity or other competent authority or
    by pirates, hijackers, terrorists or similar persons;
    “Relevant Period” means for the purposes of this
    definition of Compulsory Acquisition either (i) ninety
    (90) days or, (ii) if relevant underwriters confirm in
    writing (in customary terms) prior to the end of such ninety
    (90) day period that such capture, seizure, detention or
    confiscation will be covered by the relevant Owner’s war
    risks insurance if












Table of Contents







    continuing for a further period exceeding ten (10) calendar
    months, the shorter of twelve (12) months and such period
    at the end of which cover is confirmed to attach;



 



    “Contribution” means, at any relevant
    time, in relation to each Lender, the principal amount of the
    Loan owing to such Lender at such time;



 



    “Corporate Guarantee” means the
    guarantee required to be executed hereunder by the relevant
    Corporate Guarantor in such form as the Agent and the Majority
    Lenders may require in their sole discretion;



 



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



 



    “Delivered Tranche” means each Tranche
    which has been applied in financing a Vessel which has been
    transferred and delivered by the Builder to its Owner;



 



    “Delivery Date” means, in relation to a
    Vessel, the date on which title to and possession of that Vessel
    is transferred from the Builder to the relevant Borrower;



 



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



 



    “Drawdown Date” means, in relation to
    each Advance, any date being a Banking Day falling during the
    Drawdown Period, on which the relevant Advance is, or is to be,
    made available;



 



    “Drawdown Notice” means, in relation to
    each Advance, a notice substantially in the form of
    schedule 2;



 



    “Drawdown Period” means the period
    commencing on the Execution Date and ending in respect of:



 



    (i) Tranche A on 26 September 2013;



 



    (ii) Tranche B on 25 November 2013; and



 



    (iii) Tranche C on 26 December 2013



 



    or, in each case, on the latest date the Vessel to be
    financed by the relevant Tranche may be delivered in accordance
    with the Shipbuilding Contract relating thereto or on the date
    on which the Commitment in respect of that Tranche is finally
    cancelled or no longer available under the terms of this
    Agreement;



 



    “Earnings Account” means, in respect of
    each Borrower, an interest bearing USD Account required to be
    opened hereunder with the Account Bank in the name of that
    Borrower designated “[NAME OF BORROWER] —
    Earnings Account” and includes any other account designated
    in writing by the Payment Agent to be an Earnings Account for
    the purposes of this Agreement;



 



    “Earnings Account Pledge” means, in
    respect of each Earnings Account, a first priority charge
    required to be executed hereunder between the relevant Borrower
    and the Security Trustee in respect of its Earnings Account in
    such form as the Agent and the Majority Lenders may require in
    their sole discretion, and in the plural means all of them;



 



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



 



    “Environmental Affiliate” means any
    agent or employee of any Borrower, the Manager, or any other
    Group Member or any other person having a contractual
    relationship with any Borrower, the Manager, or any other Group
    Member in connection with any Relevant Ship or its operation or
    the












Table of Contents







    carriage of cargo
    and/or
    passengers thereon
    and/or the
    provision of goods
    and/or
    services on or from any Relevant Ship;



 



    “Environmental Approval” means any
    consent, authorisation, licence or approval of any governmental
    or public body or authorities or courts applicable to any
    Relevant Ship or its operation or the carriage of cargo
    and/or
    passengers thereon
    and/or the
    provision of goods
    and/or
    services on or from any Relevant Ship required under any
    Environmental Law;



 



    “Environmental Claim” means (i) any
    claim by any applicable Government Entity alleging breach of, or
    non-compliance with, any Environmental Laws or Environmental
    Approvals or otherwise howsoever relating to or arising out of
    an Environmental Incident or (ii) any claim by any other
    third party howsoever relating to or arising out of an
    Environmental Incident (and, in each such case,
    “claim” shall include a claim for damages
    and/or
    direction for
    and/or
    enforcement relating to
    clean-up
    costs, removal, compliance, remedial action or otherwise) or
    (iii) any Proceedings arising from any of the foregoing;



 



    “Environmental Incident” means,
    regardless of cause, (i) any discharge or release of
    Environmentally Sensitive Material from any Relevant Ship;
    (ii) any incident in which Environmentally Sensitive
    Material is discharged or released from a vessel other than a
    Relevant Ship which involves collision between a Relevant Ship
    and such other vessel or some other incident of navigation or
    operation, in either case, where the Relevant Ship, the Manager
    and/or the
    relevant Owner
    and/or the
    relevant Group Member
    and/or the
    relevant Operator are actually, contingently or allegedly at
    fault or otherwise howsoever liable (in whole or in part) or
    (iii) any incident in which Environmentally Sensitive
    Material is discharged or released from a vessel other than a
    Relevant Ship and where such Relevant Ship is actually or
    reasonably likely to be arrested as a result
    and/or where
    the Manager
    and/or the
    relevant Owner
    and/or other
    Group Member
    and/or the
    relevant Operator are actually or contingently at fault or
    allegedly and reasonably likely to be found at fault or
    otherwise howsoever liable to any administrative or legal action;



 



    “Environmental Laws” means all laws,
    regulations, conventions and agreements whatsoever relating to
    pollution, human or wildlife well-being or protection of the
    environment (including, without limitation, the United States
    Oil Pollution Act of 1990 and any comparable laws of the
    individual States of the USA);



 



    “Environmentally Sensitive Material”
    means oil, oil products or any other products or substance which
    are polluting, toxic or hazardous or any substance the release
    of which into the environment is howsoever regulated, prohibited
    or penalised by or pursuant to any Environmental Law;



 



    “Equity Deposit Account” means an
    interest bearing USD Account required to be opened hereunder
    with the Account Bank in the joint names of the Borrowers
    designated “Navios — Equity Deposit Account”
    and includes any other account designated in writing by the
    Agent to be the Equity Deposit Account for the purposes of this
    Agreement;



 



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



 



    “Execution Date” means the date on which
    this Agreement has been executed by all the parties hereto;



 



    “Extended Employment Contract” means, in
    respect of a Vessel, any time charterparty, contract of
    affreightment or other contract of employment of such ship
    (including the entry of any Vessel in any pool) which has a
    tenor exceeding twenty four (24) months (including any
    options to renew or extend such tenor);



 



    “Facility Period” means the period
    starting on the date of this Agreement and ending on such date
    as all obligations whatsoever of all of the Security Parties
    under or pursuant to the Security Documents whensoever arising,
    actual or contingent, have been irrevocably paid, performed
    and/or
    complied with;











Table of Contents







    “Final Delivery Date” means the date on
    which all of the Vessels shall have been transferred and
    delivered by the Builder to the Borrowers;



 



    “Flag State” means Panama or any other
    country acceptable to the Lenders;



 



    “General Assignment” means, in respect
    of each Vessel, the deed of assignment of its earnings,
    insurances and requisition compensation executed or to be
    executed by the relevant Owner in favour of the Security Trustee
    in such form as the Agent and the Majority Lenders may require
    in their sole discretion and in the plural means all of them;



 



    “Government Entity” means any national
    or local government body, tribunal, court or regulatory or other
    agency and any organisation of which such body, tribunal, court
    or agency is a part or to which it is subject;



 



    “Group” means at any relevant time the
    Corporate Guarantor whose Corporate Guarantee is in force and
    effect at that time and its subsidiaries but not including any
    subsidiary which is listed on any public stock exchange;



 



    “Group Member” means any member of the
    Group;



 



    “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;



 



    “Interest Payment Date” means, in
    relation to each Tranche, the last day of an Interest Period
    and, if an Interest Period is longer than 6 months, the
    date falling at the end of each successive period of
    6 months during such Interest Period starting from its
    commencement;



 



    “Interest Period” means each period for
    the calculation of interest in respect of the Loan or, as the
    case may be, Tranche ascertained in accordance with the
    provisions of clause 3;



 



    “ISM Code Documentation” means, in
    relation to a Vessel, the document of compliance (DOC) and
    safety management certificate (SMC) issued by a Classification
    Society pursuant to the ISM Code in relation to that Vessel
    within the periods specified by the ISM Code;



 



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



 



    “ISPS Code” means the International Ship
    and Port Security Code of the International Maritime
    Organisation and includes any amendments or extensions thereto
    and any regulations issued pursuant thereto;



 



    “ISSC” means an International Ship
    Security Certificate issued in respect of a Vessel pursuant to
    the ISPS Code;



 



    “Latest Accounts” means, in respect of
    any financial quarter or year of the Group, the latest unaudited
    (in respect of each financial quarter) or audited (in respect of
    each financial year) financial statements required to be
    prepared pursuant to clause 8.1.6;



 



    “Lenders” means the banks listed in
    schedule 1 and Transferee Lenders;



 



    “Lending Branch” means, in respect of
    each Lender, its office or branch at the address set out beneath
    its name in schedule 1 (or, in the case of a Transferee, in
    the Transfer Certificate to which it is a party as Transferee)
    or such other office or branch as any Lender shall from time to
    time select and notify through the Payment Agent to the other
    parties to this Agreement;



 



    “LIBOR” means, the greater of
    (i) and (ii) below:



 



    (i) the rate equal to the offered quotation for deposits in
    USD in an amount comparable with the amount in relation to which
    LIBOR is to be determined for a period equal to, or as near as
    possible equal to, the relevant period which appears on Reuters
    Screen LIBOR01 at or about 11 a.m.












Table of Contents







    on the second Banking Day before the first day of such period
    (and, for the purposes of this Agreement, “Reuters Screen
    LIBOR01” means the display designated as
    “LIBOR01” on the Reuters Service or such other page as
    may replace LIBOR01 on that service for the purpose of
    displaying rates comparable to that rate or on such other
    service as may be nominated by the British Bankers’
    Association as the information vendor for the purpose of
    displaying the British Bankers’ Association Interest
    Settlement Rates for USD); and



 



    (ii) the rate per annum reasonably determined by the Agent
    from any source the Agent may reasonably select to be the rate
    which reflects the actual cost to the Lenders of funding their
    respective Contributions (or the relevant part thereof) during
    the relevant Interest Period;



 



    “Liquidity” means the aggregate of all
    cash deposits legally and beneficially owned by any Group Member
    which:



 



    (a) are free from any Encumbrance other than, in respect of
    any deposit with a Bank, any Encumbrance given as security for
    the obligations of the Borrowers under this Agreement; and



 



    (b) are otherwise at the free and unrestricted disposal of
    the relevant Group Member by which it is owned



 



    but excluding any sums on the Equity Deposit Account;



 



    “Loan” means the aggregate principal
    amount in respect of the Loan Facility owing to the Lenders
    under this Agreement at any relevant time;



 



    “Loan Facility” means the loan facility
    provided by the Lenders on the terms and subject to the
    conditions of this Agreement in the amount of
    USD 75,000,000;



 



    “Majority Lenders” means at any relevant
    time when there are two Lenders, both of them, and at any time
    when there are more than two Lenders, the Lenders whose
    Contributions exceed 75% of the Loan;



 



    “Management Agreement” means, in respect
    of each Vessel, the agreement between the relevant Owner and the
    Manager, in a form previously approved in writing by the Agent
    (acting on the instructions of the Majority Lenders);



 



    “Manager” means Navios ShipManagement
    Inc., a company incorporated in the Marshall Islands and having
    its registered office at Trust Company Complex, Ajeltake
    Road, Ajeltake Island, Majuro, Marshall Islands, MH96960 or
    (without the need for the Agent’s consent) any other
    subsidiary of Navios Maritime Holdings Inc. or any other person
    appointed by an Owner, with the prior written consent of the
    Agent, as the manager of the relevant Mortgaged Vessel;



 



    “Manager’s Undertakings” means,
    collectively, the undertakings and assignments required to be
    executed hereunder by the Manager in favour of the Security
    Trustee in respect of each of the Vessels each in such form as
    the Agent and the Majority Lenders may require in their sole
    discretion (and “Managers’ Undertakings”
    means all of them);



 



    “Margin” means, in relation to each
    Interest Period 2.50% per annum;



 



    “Master Agreement” means together
    (i) an ISDA Master Agreement made or to be made between the
    Swap Bank and the Borrowers;



 



    “Master Agreement Security Deed” means
    the security deed in respect of the Master Agreement executed or
    (as the context may require) to be each executed by the
    Borrowers in favour of the Security Trustee in such form as the
    Agent and the Majority Lenders may require in their sole
    discretion;



 



    “Material Adverse Effect” means any
    event or occurrence which the Majority Lenders reasonably
    determine has had or could reasonably be expected to have a
    material adverse effect on (i) the Banks’ rights
    under, or the security provided by, any Security Document,
    (ii) the ability of any Security Party to












Table of Contents







    perform or comply with any of its obligations under any Security
    Document or (iii) the value or nature of the property,
    assets, operations, liabilities or financial condition of any
    Security Party;



 



    “Maturity Date” means in respect of each
    Tranche, the date falling 6 years after the Delivery Date
    of the Vessel which is being financed by that Tranche;



 



    “MII & MAP Policy” means a
    mortgagee’s interest and pollution risks insurance policy
    (including additional perils (pollution) cover) in respect of
    each Mortgaged Vessel to be effected by the Security Trustee on
    or before the first Drawdown Date to cover the Mortgaged Vessels
    as the same may be renewed or replaced annually thereafter and
    maintained throughout the Facility Period through such brokers,
    with such underwriters and containing such coverage as may be
    acceptable to the Security Trustee in its sole discretion,
    insuring a sum of at least one hundred and ten per cent (110%)
    of the Loan in respect of mortgagee’s interest insurance
    and one hundred and ten per cent (110%) of the Loan in respect
    of additional perils cover;



 



    “Minimum Liquidity” means
    (i) during 2010 and 2011 and up to the Final Delivery Date
    USD40,000,000 and (ii) thereafter, USD35,000,000;



 



    “month” means a period beginning in one
    calendar month and ending in the next calendar month on the day
    numerically corresponding to the day of the calendar month on
    which it started, provided that (a) if the period started
    on the last Banking Day in a calendar month or if there is no
    such numerically corresponding day, it shall end on the last
    Banking Day in such next calendar month and (b) if such
    numerically corresponding day is not a Banking Day, the period
    shall end on the next following Banking Day in the same calendar
    month but if there is no such Banking Day it shall end on the
    preceding Banking Day and “months” and
    “monthly” shall be construed accordingly;



 



    “Mortgage” means, in respect of each
    Vessel, the first preferred Ship mortgage thereof required to be
    executed hereunder by the Owner thereof in favour of the
    Security Trustee, each in such form as the Agent and the
    Majority Lenders may require in their sole discretion and in the
    plural means all of them;



 



    “Mortgaged Vessel” means, at any
    relevant time, any Vessel which is at such time subject to a
    Mortgage and a Vessel shall, for the purposes of this Agreement,
    be regarded as a Mortgaged Vessel as from the date on which the
    Mortgage of that Vessel has been executed and registered in
    accordance with this Agreement until whichever shall be the
    earlier of (i) the payment in full of the amount required
    to be paid to the Agent pursuant to clause 4.3 or 4.5 following
    the Total Loss or sale respectively of such Vessel and
    (ii) the end of the Facility Period;



 



    “Navios Acquisition” means Navios
    Maritime Acquisition Corporation a company incorporated in the
    Marshall Islands and having its registered office at
    Trust Company Complex, Ajeltake Road, Ajeltake Island,
    Majuro, Marshall Islands, MH96960;



 



    “Negative Pledge” means negative pledge
    of the shares of and in each Borrower to be executed by the
    Shareholder in favour of the Security Trustee in such form as
    the Agent and the Majority Lenders may require in their sole
    discretion and in the plural means all of them;



 



    “Net Profit” means for each financial
    year of the Corporate Guarantor, the Net Profit as set out in
    the relevant Latest Accounts;



 



    “Net Worth” means by reference to the
    Latest Accounts, the Total Assets (based on book values) less
    Total Liabilities of the Group;



 



    “Novation Agreement” means each of the
    Vessel A Novation Agreement, the Vessel B Novation Agreement and
    the Vessel C Novation Agreement and in the plural means all of
    them;



 



    “Operator” means any person who is from
    time to time during the Facility Period concerned in the
    operation of a Relevant Ship and falls within the definition of
    “Company” set out in rule 1.1.2 of the ISM Code;











Table of Contents







    “Owner” means, in relation to:



 



    (i) Vessel A, Sifnos;



 



    (ii) Vessel B, Skiathos; and



 



    (iii) Vessel C, Syros,



 



    and in the plural means all of them;



 



    “Payment Agent” means Fortis Bank acting
    through its office at Vas Sofias 94 & Kerasountos 1, 115 28
    Athens, Greece (or of such other address as may last have been
    notified to the other parties to this Agreement pursuant to
    clause 17.2.3) or such other person as may be appointed as agent
    by the Lenders pursuant to clause 16.13;



 



    “Permitted Encumbrance” means any
    Encumbrance in favour of the Banks or any of them created
    pursuant to the Security Documents and Permitted Liens;



 



    “Permitted Liens” means any lien on any
    Vessel for master’s, officer’s or crew’s wages
    outstanding in the ordinary course of trading, any lien for
    salvage and any ship repairer’s or outfitter’s
    possessory lien for a sum not (except with the prior written
    consent of the Agent) exceeding the Casualty Amount (as defined
    in the Ship Security Documents for such Vessel);



 



    “Pertinent Jurisdiction” means any
    jurisdiction in which or where any Security Party is
    incorporated, resident, domiciled, has a permanent establishment
    or assets, carries on, or has a place of business or is
    otherwise howsoever effectively connected;



 



    “Predelivery Security Assignment” means,
    in respect of each Vessel, a deed of assignment of the
    Shipbuilding Contract and of the Refund Guarantee in respect
    thereof in such form as the Agent and the Majority Lenders may
    require in their sole discretion and in the plural means all of
    them;



 



    “Prepayment Ratio” means in respect of
    the sale or Total Loss of a Mortgaged Vessel the Valuation
    Amount of such Mortgaged Vessel immediately prior to such sale
    or Total Loss divided by the Security Value immediately prior to
    such sale or Total Loss and for these purposes any valuation of
    a Vessel (calculated in accordance with Clause 8.2.2) may
    be no more than two months old;



 



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



 



    “Refund Guarantee” means each of the
    Vessel A Refund Guarantee, the Vessel B Refund Guarantee and the
    Vessel C Refund Guarantee and in the plural means all of them;



 



    “Refund Guarantor” means, in relation to
    each Vessel, the issuer of the Refund Guarantee in respect
    thereof;



 



    “Registry” means, in relation to each
    Vessel, the office of the registrar, commissioner or
    representative of the Flag State, who is duly empowered to
    register such Vessel, the relevant Owner’s title thereto
    and the relevant Mortgage under the laws and flag of the Flag
    State;



 



    “Relevant Tranche” means, in respect of
    Vessel A, Tranche A, in respect of Vessel B, Tranche B
    and in respect of Vessel C, Tranche C;



 



    “Relevant Ship” means each of the
    Vessels and any other ship from time to time (whether before or
    after the date of this Agreement) owned, managed or crewed by,
    or chartered to, any Group Member;



 



    “Repayment Dates” means, in respect of
    each Tranche, subject to clause 6.3, each of the dates
    falling at six-monthly intervals after the Delivery Date in
    respect of the Vessel which that Tranche finances, up to and
    including the date falling 72 months after such date;











Table of Contents







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



 



    “Required Security Amount” means the
    amount in USD (as certified by the Agent) which is at any
    relevant time the Relevant Percentage of the aggregate of the
    Delivered Tranches and any Swap Exposure where “Relevant
    Percentage” means:



 



    (i) during 2013, 110%;



 



    (ii) thereafter, 115%;



 



    “Retention Account” an interest bearing
    USD Account required to be opened hereunder with the Account
    Bank in the name of the Borrowers designated
    “Navios — Retention Account” and includes
    any other account designated in writing by the Payment Agent to
    be the Retention Account for the purposes of this Agreement;



 



    “Retention Account Pledge” means a first
    priority charge required to be executed hereunder between the
    Borrowers and the Security Trustee in respect of the Retention
    Account in such form as the Agent and the Majority Lenders may
    require in their sole discretion;



 



    “Retention Amount” means, in relation to
    any Retention Date, such sum as shall be the aggregate of:



 



    (a) One sixth (1/6th) of the repayment instalment in
    respect of the relevant Tranche falling due for payment pursuant
    to clause 4.1.1 (as the same may have been reduced by any
    prepayment) on the next Repayment Date after the relevant
    Retention Date in respect of that Tranche; and



 



    (b) the applicable fraction (as hereinafter defined) of the
    aggregate amount of interest falling due for payment in respect
    of each part of the Loan during and at the end of each Interest
    Period current at the relevant Retention Date and, for this
    purpose, the expression “applicable fraction”
    in relation to each Interest Period shall mean a fraction having
    a numerator of one and a denominator equal to the number of
    Retention Dates falling within the relevant Interest Period;



 



    “Retention Dates” means the date falling
    thirty (30) days after the final Drawdown Date in respect
    of a Tranche and each of the dates falling at monthly intervals
    after such date and prior to the Maturity Date in respect of
    that Tranche;



 



    “Security Documents” means this
    Agreement, the Predelivery Security Assignments, the Master
    Agreement, the Master Agreement Security Deed, the Mortgages,
    the Corporate Guarantee, the General Assignments, the Charter
    Assignments, the Earnings Account Pledge, the Manager’s
    Undertakings, the Charter Insurance Assignments, the
    Shares Pledges, the Negative Pledges, and any other
    documents as may have been or shall from time to time after the
    date of this Agreement be executed to guarantee
    and/or to
    govern
    and/or
    secure all or any part of the Loan, interest thereon and other
    moneys from time to time owing by the Borrowers pursuant to this
    Agreement
    and/or the
    Master Agreement (whether or not any such document also secures
    moneys from time to time owing pursuant to any other document or
    agreement);



 



    “Security Party” means the Borrowers,
    the Corporate Guarantor, the Shareholder or any other person who
    may at any time be a party to any of the Security Documents
    (other than the Banks);



 



    “Security Trustee” means Fortis Bank
    acting through its office at Vas Sofias 94 & Kerasountos
    1,115 28 Athens, Greece (or of such other address as may last
    have been notified to the other parties to this Agreement
    pursuant to clause 17.2.3) or such other person as may be
    appointed as Security Trustee












Table of Contents







    and trustee by the Lenders, the Arranger, Account Bank, Swap
    Bank, the Payment Agent, and the Agent pursuant to
    clause 16.14;



 



    “Security Value” means the amount in USD
    (as certified by the Agent) which is, at any relevant time, the
    aggregate of (a) the Valuation Amounts of the Mortgaged
    Vessels as most recently determined in accordance with
    clause 8.2.2 and (b) the net realizable market value
    of any additional security for the time being actually provided
    to the Lenders pursuant to clause 8.2.1(b) and (c) and
    cash over which there is an Encumbrance as security for the
    obligations of the Borrowers under this Agreement;



 



    “Share Acquisition Date” means the date
    on which Navios Acquisition acquires, directly or indirectly,
    all of the shares of and in the Shareholder;



 



    “Shareholder” means Aegean Sea Maritime
    Holdings Inc., a company incorporated in the Marshall Islands
    and having its registered office at Trust Company Complex,
    Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands,
    MH96960;



 



    “Shares Pledge” means the first
    priority pledge of the shares of and in each Borrower to be
    executed by the Shareholder in favour of the Security Trustee in
    such form as the Agent and the Majority Lenders may require in
    their sole discretion and in the plural means all of them;



 



    “Ship Security Documents” means, in
    relation to each Vessel, the relevant Mortgage, the relevant
    General Assignment, any relevant Charter Assignment and the
    relevant Manager’s Undertakings;



 



    “Shipbuilding Contract” means each of
    the Vessel A Shipbuilding Contract, the Vessel B Shipbuilding
    Contract and the Vessel C Shipbuilding Contract and in the
    plural means all of them;



 



    “Shipbuilding Contract Addendum” means,
    in respect of each Shipbuilding Contract, an addendum thereto
    pursuant to which the relevant Borrower and the Builder agree to
    vary the terms of the relevant Shipbuilding Contract, including,
    inter alia, a reduction of the purchase price;



 



    “subsidiary” of a person means any
    company or entity directly or indirectly controlled by such
    person, and for this purpose “control” means either
    the ownership of more than fifty per cent (50%) of the voting
    share capital (or equivalent rights of ownership) of such
    company or entity or the power to direct its policies and
    management, whether by contract or otherwise;



 



    “Swap Bank” means Fortis Bank acting
    through its through its office at Vas Sofias 94 &
    Kerasountos 1, 115 28 Athens, Greece;



 



    “Swap Exposure” means, as at any
    relevant date the amount certified by the Swap Bank to be the
    aggregate net amount in Dollars which would be payable by the
    Borrowers to the Swap Bank under (and calculated in accordance
    with) section 6(e) (Payments on Early Termination) of the
    Master Agreement if an Early Termination Date (as therein
    defined) had occurred on the relevant date in relation to all
    continuing Transactions (as therein defined) entered into
    between the Borrowers and the Swap Bank;



 



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



 



    “Total Assets” and “Total
    Liabilities” mean, respectively, the total assets
    and total liabilities of the Group as evidenced at any relevant
    time by the Latest Accounts, in which they shall have been
    calculated by reference to the meanings assigned to them in
    accordance with US GAAP provided that cash shall be deducted
    from Total Assets and Total Liabilities;



 



    “Total Commitment” means, at any
    relevant time, the aggregate of the Commitments of all the
    Lenders at such time (being the aggregate of the sums set out
    opposite their names in schedule 1);



 



    “Total Loss” means, in relation to each
    Vessel:



 



    (a) actual, constructive, compromised or arranged total
    loss of such Vessel; or











Table of Contents







    (b) Compulsory Acquisition; or



 



    (c) any hijacking, theft, condemnation, capture, seizure,
    arrest, detention or confiscation of such Vessel not falling
    within the definition of Compulsory Acquisition by any
    Government Entity, or by persons allegedly acting or purporting
    to act on behalf of any Government Entity, unless such Vessel be
    released and restored to the relevant Owner within ninety
    (90) days after such incident;



 



    “Tranche A” means the amount of up
    to USD25,00,000, being the aggregate of all of the Advances to
    be made available by the Lender to the Borrowers to assist
    Sifnos in its acquisition of Vessel A or, as the context
    requires, the amount thereof outstanding from time to time;



 



    “Tranche B” means the amount of up
    to USD25,000,000, being the aggregate of all of the Advances to
    be made available by the Lender to the Borrowers to assist
    Skiathos in its acquisition of Vessel B or, as the context
    requires, the amount thereof outstanding from time to time;



 



    “Tranche C” means the amount of up
    to USD25,000,000, being the aggregate of all of the Advances to
    be made available by the Lender to the Borrowers to assist Syros
    in its acquisition of Vessel C or, as the context requires, the
    amount thereof outstanding from time to time;



 



    “Tranche” means any of Tranche A,
    Tranche B or Tranche C and in the plural means all of
    them;



 



    “Transaction” means a Transaction as
    defined in the Master Agreement;



 



    “Transfer Certificate” means a
    certificate in substantially the form set out in schedule 4;



 



    “Transferee Lender” has the meaning
    ascribed thereto in clause 15.3;



 



    “Transferor Lender” has the meaning
    ascribed thereto in clause 15.3;



 



    “Trust Deed” means a trust deed in
    the form, or substantially in the form, set out in
    schedule 5;



 



    “Trust Property” means (i) the
    security, powers, rights, titles, benefits and interests (both
    present and future) constituted by and conferred on the Banks or
    any of them under or pursuant to the Security Documents
    (including, without limitation, the benefit of all covenants,
    undertakings, representations, warranties and obligations given,
    made or undertaken to any Bank in the Security Documents),
    (ii) all moneys, property and other assets paid or
    transferred to or vested in any Bank (or anyone else on such
    Bank’s behalf) or received or recovered by any Bank (or
    anyone else on such Bank’s behalf) pursuant to, or in
    connection with, any of the Security Documents whether from any
    Security Party or any other person and (iii) all moneys,
    investments, property and other assets at any time representing
    or deriving from any of the foregoing, including all interest,
    income and other sums at any time received or receivable by any
    Bank (or anyone else on such Bank’s behalf) in respect of
    the same (or any part thereof);



 



    “Underlying Documents” means, together,
    the Shipbuilding Contracts, the Shipbuilding Contract Addenda,
    the Novation Agreements, the Refund Guarantees and the
    Management Agreement;



 



    “Unlawfulness” means any event or
    circumstance which either is or, as the case may be, might in
    the opinion of the Agent become the subject of a notification by
    the Agent to the Borrowers under clause 12.1;



 



    “USA” means the United States of America;



 



    “Valuation Amount” means, in respect of
    each Mortgaged Vessel, the value thereof as most recently
    determined under clause 8.2.2; and



 



    “Vessel” means each of Vessel A, Vessel
    B and Vessel C and in the plural means all of them.



 



    Words and expressions defined in Schedule 7 (Vessel
    Details) shall have the meanings given to them therein as if the
    same were set out in full in this clause 1.2.











Table of Contents






 




    1.3  Construction



 



    In this Agreement, unless the context otherwise requires:



 



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



 



    1.3.2 references to clauses and schedules are to be
    construed as references to clauses of, and schedules to, this
    Agreement and references to this Agreement include its schedules
    and any supplemental agreements executed pursuant hereto;



 



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



 



    1.3.4 references to a “regulation” include any
    present or future regulation, rule, directive, requirement,
    request or guideline (whether or not having the force of law) of
    any Government Entity, central bank or any self-regulatory or
    other supra-national authority;



 



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



 



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



 



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



 



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



 



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



 



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



 



    1.3.11 a certificate by the Agent, the Payment Agent or the
    Security Trustee as to any amount due or calculation made or any
    matter whatsoever determined in connection with this Agreement
    shall be conclusive and binding on the Borrowers except for
    manifest error;



 



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



 



    1.3.13 time shall be of the essence in respect of all
    obligations whatsoever of the Borrowers under this Agreement,
    howsoever and whensoever arising;



 



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



 




    1.4  Accounting
    terms and references to currencies



 



    Currencies are referred to in this Agreement by the three letter
    currency codes (ISO 4217) allocated to them by the
    International Organisation for Standardisation.











Table of Contents








    1.5  Contracts
    (Rights of Third Parties Act) 1999



 



    Except for clause 20, no part of this Agreement shall be
    enforceable under the Contracts (Rights of Third Parties) Act
    1999 by a person who is not a party to this Agreement.



 




    1.6  Majority
    Lenders



 



    Where this Agreement or any other Security Document provides for
    any matter to be determined by reference to the opinion of the
    Majority Lenders or to be subject to the consent or request of
    the Majority Lenders or for any decision or action to be taken
    on the instructions in writing of the Majority Lenders, such
    opinion, consent, request or instructions shall (as between the
    Lenders) only be regarded as having been validly given or issued
    by the Majority Lenders if all the Lenders with a Commitment
    and/or
    Contribution shall have received prior notice of the matter on
    which such opinion, consent, request or instructions are
    required to be obtained and the relevant majority of such
    Lenders shall have given or issued such opinion, consent,
    request or instructions but so that (as between the Borrowers
    and the Banks) the Borrowers shall be entitled (and bound) to
    assume that such notice shall have been duly received by each
    relevant Lender and that the relevant majority shall have been
    obtained to constitute Majority Lenders whether or not this is
    in fact the case.



 




    2  THE
    AVAILABLE COMMITMENT AND CANCELLATION



 




    2.1  Agreement
    to lend



 



    The Lenders, relying upon each of the representations and
    warranties in clause 7, agree to provide to the Borrowers
    upon and subject to the terms of this Agreement, the Tranches,
    for the purposes of financing part of the purchase price of the
    Vessels. Subject to the terms of this Agreement, the obligations
    of the Lenders shall be to contribute to each Advance, the
    proportion of the relevant Advance which their respective
    Commitments bear to the Total Commitment on any relevant
    Drawdown Date.



 




    2.2  Obligations
    several



 



    The obligations of the Lenders under this Agreement are several
    according to their respective Commitments
    and/or
    Contributions. The failure of any Lender to perform such
    obligations shall not relieve any other party to this Agreement
    of any of its respective obligations or liabilities under this
    Agreement nor shall any Bank be responsible for the obligations
    of any other Bank (except for its own obligations, if any, as a
    Lender) under this Agreement.



 




    2.3  Interests
    several



 



    Notwithstanding any other term of this Agreement (but without
    prejudice to the provisions of this Agreement relating to or
    requiring action by the Majority Lenders) the interests of the
    Banks are several and the amount due to any Bank is a separate
    and independent debt. Each Bank shall have the right to protect
    and enforce its rights arising out of this Agreement and it
    shall not be necessary for any other Bank to be joined as an
    additional party in any Proceedings for this purpose.



 




    2.4  Drawdown



 



    2.4.1 On the terms and subject to the conditions of this
    Agreement, each Tranche shall be advanced in up to six
    (6) Advances each on the relevant Drawdown Dates following
    receipt by the Payment Agent from the Borrowers of Drawdown
    Notices not later than 10 a.m. on the third Banking Day
    before each proposed Drawdown Date.



 



    2.4.2 A Drawdown Notice shall be effective on actual
    receipt by the Payment Agent and, once given, shall, subject as
    provided in clause 3.6, be irrevocable.











Table of Contents








    2.5  Amount



 



    2.5.1 The principal amount specified in each Drawdown
    Notice for borrowing on the Drawdown Dates shall, subject to the
    terms of this Agreement, in respect of each Tranche not exceed:



 



    (a) USD6,512,000 payable to the relevant seller or its
    financiers under the relevant Novation Agreement;



 



    (b) USD5,546,400 in respect of the instalment payable to
    the Builder on the relevant Shipbuilding Contract Addendum
    becoming effective;



 



    (c) USD3,697,600 to the Builder under the relevant
    Shipbuilding Contract in respect of the steel-cutting instalment;



 



    (d) USD3,697,600 to the Builder under the relevant
    Shipbuilding Contract in respect of the
    keel-laying
    instalment;



 



    (e) USD3,697,600 to the Builder under the relevant
    Shipbuilding Contract in respect of the launching
    instalment; and



 



    (f) USD1,848,800 to the Builder under the relevant
    Shipbuilding Contract in respect of the delivery instalment.



 




    2.6  Availability



 



    Upon receipt of a Drawdown Notice complying with the terms of
    this Agreement, the Payment Agent shall promptly notify each
    Lender and each Lender shall make available to the Payment Agent
    its portion of the relevant Advance for payment by the Payment
    Agent in accordance with clause 6.2. The Borrowers
    acknowledge that payment of any Advance to the account referred
    to in the relevant Drawdown Notice shall satisfy the obligation
    of the Lenders to lend that Advance to the Borrowers under this
    Agreement.



 




    2.7  Voluntary
    cancellation of Facility



 



    The Borrowers may at any time during the Drawdown Period by
    notice to the Payment Agent (effective only on actual receipt)
    cancel with effect from a date not less than five Banking Days
    after the receipt by the Payment Agent of such notice the whole
    or any part (being two million Dollars (USD 2,000,000) or any
    larger sum which is an integral multiple of two million Dollars
    (USD 2,000,000)) of the Total Commitment. Any such notice of
    cancellation, once given, shall be irrevocable and the Total
    Commitment shall be reduced accordingly and each Lender’s
    Commitment shall be reduced pro rata according to the proportion
    which its Commitment bears to the Total Commitment.



 




    2.8  Cancellation
    in changed circumstances



 



    The Borrowers may also at any time during the Facility Period by
    notice to the Payment Agent (effective only on actual receipt)
    prepay and cancel with effect from a date not less than fifteen
    (15) days after receipt by the Payment Agent of such
    notice, the whole but not part only, but without prejudice to
    the Borrowers’ obligations under clauses 6.6 and 12,
    of the Contribution and Commitment (if any) of any Lender to
    which the Borrowers shall have become obliged to pay additional
    amounts under clause 12 or clause 6.6. Upon any notice
    of such prepayment and cancellation being given, the Commitment
    of the relevant Lender shall be reduced to zero, the Borrowers
    shall be obliged to prepay the Contribution of such Lender and
    such Lender’s related costs (including but not limited to
    Break Costs) on such date and such Lender shall be under no
    obligation to participate in the Loan or any further Advances.



 




    2.9  Use
    of proceeds



 



    Without prejudice to the Borrowers’ obligations under
    clause 8.1.4, no Bank shall have any responsibility for the
    application of the proceeds of any Advance or any part thereof
    by the Borrowers.











Table of Contents








    3  INTEREST
    AND INTEREST PERIODS



 




    3.1  Normal
    interest rate



 



    The Borrowers must pay interest on each Tranche in respect of
    each Interest Period relating thereto on each Interest Payment
    Date at the rate per annum determined by the Payment Agent to be
    the aggregate of (a) the Margin and (b) LIBOR.



 




    3.2  Selection
    of Interest Periods



 



    Subject to clause 3.3, the Borrowers may by notice received
    by the Payment Agent not later than 10:00 a.m. on the
    fourth Banking Day before the beginning of each Interest Period
    specify whether such Interest Period shall have a duration of
    three (3), six (6) or twelve (12) months or such other
    period as the Borrowers may select and the Payment Agent (acting
    on the instructions of the Lenders) may agree, and if the
    Borrowers wishes to specify an Interest Period of more than
    12 months, it must give at least 5 Banking Days prior
    notice thereof.



 




    3.3  Determination
    of Interest Periods



 



    Subject to Clause 3.3.1 every Interest Period shall be of
    the duration specified by the Borrowers pursuant to
    clause 3.2 but so that:



 



    3.3.1 the first Interest Period in respect of each Tranche
    shall start on the Drawdown Date in respect of the first Advance
    in respect of that Tranche, and each subsequent Interest Period
    shall start on the last day of the previous Interest Period;



 



    3.3.2 the first Interest Period in respect of each
    subsequent Advance shall commence on its Drawdown Date and
    terminate simultaneously with the Interest Period which is then
    current for the Tranche under which the Advance is made
    available;



 



    3.3.3 if any Interest Period would otherwise overrun a
    relevant Repayment Date, then the relevant Tranche shall be
    divided into parts so that there is one part in the amount of
    the repayment instalment due on such Repayment Date and having
    an Interest Period ending on the relevant Repayment Date and
    another part in the amount of the balance of that Tranche having
    an Interest Period ascertained in accordance with
    clause 3.2 and the other provisions of this
    clause 3.3; and



 



    3.3.4 if the Borrowers fail to specify the length of an
    Interest Period in accordance with the provisions of
    clause 3.2 and this clause 3.3 such Interest Period
    shall last three months or such other period as complies with
    this clause 3.3.



 




    3.4  Default
    interest



 



    If the Borrowers fail to pay any sum (including, without
    limitation, any sum payable pursuant to this clause 3.4) on
    its due date for payment under any of the Security Documents,
    the Borrowers must pay interest on such sum on demand from the
    due date up to the date of actual payment (as well after as
    before judgment) at a rate determined by the Payment Agent
    pursuant to this clause 3.4. The period starting on such
    due date and ending on such date of payment shall be divided
    into successive periods of not more than three (3) months
    as selected by the Payment Agent each of which (other than the
    first, which shall start on such due date) shall start on the
    last day of the preceding such period. The rate of interest
    applicable to each such period shall be the aggregate (as
    determined by the Payment Agent) of (a) two per cent
    (2%) per annum, (b) the Margin and (c) LIBOR
    for such periods. Such interest shall be due and payable on
    demand, or, if no demand is made, then on the last day of each
    such period as determined by the Payment Agent and on the day on
    which all amounts in respect of which interest is being paid
    under this Clause are paid, and each such day shall, for the
    purposes of this Agreement, be treated as an Interest Payment
    Date, provided that if such unpaid sum is an amount of principal
    which became due and payable by reason of a declaration by the
    Payment Agent under clause 10.2.2 or a prepayment pursuant
    to clauses 4.3, 4.5, 8.2.1(a) or 12.1, on a date other than
    an Interest Payment Date relating thereto, the first such period
    selected by the Payment Agent shall be of a duration equal to
    the period between the due date of such principal sum and such
    Interest Payment Date and interest shall be payable on












Table of Contents







    such principal sum during such period at a rate of two per cent
    (2%) above the rate applicable thereto immediately before
    it shall have become so due and payable. If, for the reasons
    specified in clause 3.6.1, the Payment Agent is unable to
    determine a rate in accordance with the foregoing provisions of
    this clause 3.4, each Lender shall promptly notify the
    Payment Agent of the cost of funds to such Lender and interest
    on any sum not paid on its due date for payment shall be
    calculated at a rate determined by the Payment Agent to be two
    per cent (2%) per annum above the aggregate of the Margin
    and the arithmetic mean of the cost of funds to the Lenders
    compounded at such intervals as the Payment Agent selects.



 




    3.5  Notification
    of Interest Periods and interest rate



 



    The Payment Agent agrees to notify (i) the Lenders promptly
    of the duration of each Interest Period and (ii) the
    Borrowers and the Lenders promptly of each rate of interest
    determined by it under this clause 3.



 




    3.6  Market
    disruption; non-availability



 



    3.6.1 Whenever, at any time prior to the commencement of
    any Interest Period:



 



    (a) the Payment Agent shall have determined that adequate
    and fair means do not exist for ascertaining LIBOR during such
    Interest Period; or



 



    (b) the Payment Agent shall have received notification from
    a Lender or Lenders that deposits in USD are not available to
    such Lender or Lenders in the London InterBank Market in the
    ordinary course of business to fund their Contributions to the
    Loan for such Interest Period



 



    (c) the Payment Agent must promptly give notice (a
    “Determination Notice”) thereof to the
    Borrowers and to each of the Lenders. A Determination Notice
    shall contain particulars of the relevant circumstances giving
    rise to its issue. After the giving of any Determination Notice,
    regardless of any other provision of this Agreement, the
    Commitment shall not be borrowed until notice to the contrary is
    given to the Borrowers by the Payment Agent.



 



    3.6.2 Within ten (10) days of any Determination Notice
    being given by the Payment Agent under clause 3.6.1, each
    Lender must certify an alternative basis (the
    “Alternative Basis”) for maintaining its
    Contribution. The Alternative Basis may at the relevant
    Lender’s sole discretion include (without limitation)
    alternative interest periods, alternative currencies or
    alternative rates of interest but shall include a Margin above
    the cost of funds to such Lender. The Payment Agent shall
    calculate the arithmetic mean of the Alternative Bases provided
    by the relevant Lenders (the “Substitute
    Basis”) and certify the same to the Borrowers and the
    Lenders. The Substitute Basis so certified shall be binding upon
    the Borrowers, and shall take effect in accordance with its
    terms from the date specified in the Determination Notice until
    such time as the Payment Agent notifies the Borrowers that none
    of the circumstances specified in clause 3.6.1 continues to
    exist whereupon the normal interest rate fixing provisions of
    this Agreement shall again apply and, subject to the other
    provisions of this Agreement, the Commitment may again be
    borrowed.



 




    3.7  Interest
    Rate Swaps



 



    If the Borrowers wish to enter into any interest rate swaps in
    respect of the Loan or any part thereof, they must do so with
    the Swap Bank under the Master Agreement.



 




    4  REPAYMENT
    AND PREPAYMENT



 




    4.1  Repayment



 



    4.1.1 Subject as otherwise provided in this Agreement, the
    Borrowers must repay each Tranche by 12 equal semi-annual
    instalments of USD750,000 each, one such instalment to be repaid
    on each of the Repayment Dates and a balloon instalment of
    USD16,000,000 to be repaid on the relevant final Repayment Date.



 



    If the Commitment in respect of any Tranche is not drawn in
    full, the amount of each repayment instalments for that Tranche
    shall be reduced proportionately.











Table of Contents







    4.1.2 The Borrowers shall on the Maturity Date in respect
    of the last Tranche to be repaid also pay to the Payment Agent
    and the Lenders all other amounts in respect of interest or
    otherwise then due and payable under this Agreement and the
    Security Documents.



 




    4.2  Voluntary
    prepayment



 



    Subject to clauses 4.6 and 4.7 the Borrowers may, subject
    to having given 15 Banking Days prior notice thereof to the
    Payment Agent, prepay any specified amount (such part being in
    an amount of two million five hundred thousand Dollars (USD
    2,500,000) or any larger sum which is an integral multiple of
    such amount) of any Tranche on any relevant Interest Payment
    Date without premium or penalty.



 




    4.3  Mandatory
    Prepayment on Total Loss



 



    On the date falling one hundred and eighty (180) days after
    that on which a Mortgaged Vessel became a Total Loss or, if
    earlier, on the date upon which the relevant insurance proceeds
    are, or Requisition Compensation (as defined in the Mortgage for
    such Vessel) is, received by the relevant Borrower (or the
    Security Trustee pursuant to the Security Documents), the
    Borrowers must prepay the Loan by an amount equal to the greater
    of (i) the Relevant Tranche and (ii) the amount of the
    Loan on the date on which such prepayment is required to be made
    multiplied by the Prepayment Ratio.



 




    4.3.1  Interpretation



 



    For the purpose of this Agreement, a Total Loss shall be deemed
    to have occurred:



 



    (a) in the case of an actual total loss of a Vessel, on the
    actual date and at the time such Vessel was lost or, if such
    date is not known, on the date on which such Vessel was last
    reported;



 



    (b) in the case of a constructive total loss of a Vessel,
    upon the date and at the time notice of abandonment of the ship
    is given to the then insurers of such Vessel (provided a claim
    for total loss is admitted by such insurers) or, if such
    insurers do not immediately admit such a claim, at the date and
    at the time at which either a total loss is subsequently
    admitted by such insurers or a total loss is subsequently
    adjudged by a competent court of law or arbitration tribunal to
    have occurred;



 



    (c) in the case of a compromised or arranged total loss of
    a Vessel, on the date upon which a binding agreement as to such
    compromised or arranged total loss has been entered into by the
    then insurers of such Vessel;



 



    (d) in the case of Compulsory Acquisition, on the date upon
    which the relevant requisition of title or other compulsory
    acquisition occurs; and



 



    (e) in the case of hijacking, theft, condemnation, capture,
    seizure, arrest, detention or confiscation of a Vessel (other
    than within the definition of Compulsory Acquisition) by any
    Government Entity, or by persons allegedly acting or purporting
    to act on behalf of any Government Entity, which deprives an
    Owner of the use of such Vessel for more than ninety
    (90) days, upon the expiry of the period of ninety
    (90) days after the date upon which the relevant incident
    occurred.



 




    4.4  Mandatory
    prepayment on sale of Mortgaged Vessel



 



    On the date of completion of the sale of a Mortgaged Vessel the
    Borrowers must prepay the Loan by an amount equal to the greater
    of (i) the Relevant Tranche and (ii) the amount of the
    Loan on the date on which such prepayment is required to be made
    multiplied by the Prepayment Ratio.



 




    4.5  Mandatory
    prepayment on termination of a Shipbuilding
    Contract



 



    If a Shipbuilding Contract is terminated, cancelled, revoked,
    suspended, rescinded, transferred, novated or otherwise ceases
    to remain in full force and effect for any reason except with
    the consent of the Agent, the Borrowers must upon the
    Agent’s demand prepay the Tranche financing the relevant
    Borrower’s obligations












Table of Contents







    under that Shipbuilding Contract and the Commitment in respect
    of such Tranche shall be irrevocably cancelled upon such demand
    being made.



 




    4.6  Amounts
    payable on prepayment



 



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



 



    4.6.1 accrued interest on the amount to be prepaid to the
    date of such prepayment;



 



    4.6.2 any additional amount payable under clauses 3.6,
    6.6 or 12.2; and



 



    4.6.3 all other sums payable by the Borrowers to the Banks
    under this Agreement or any of the other Security Documents
    including, without limitation any Break Costs and, if the whole
    Loan is being prepaid, any accrued commitment commission payable
    under clause 5.1.



 




    4.7  Notice
    of prepayment; reduction of maximum loan amount



 



    4.7.1 Every notice of prepayment shall be effective only on
    actual receipt by the Payment Agent, shall be irrevocable, shall
    specify the amount to be prepaid and the Tranche which is to be
    prepaid and shall oblige the Borrowers to make such prepayment
    on the date specified. Subject to the other provisions of this
    Agreement and in particular Clause 2.6, no amount prepaid
    under this Clause 4 in respect of the Loan may be
    reborrowed.



 



    4.7.2 Any amounts prepaid pursuant to clause 4.2 shall
    be applied against the relevant Tranche in reducing the Balloon
    Instalment and other outstanding repayment instalments pro rata.



 



    4.7.3 Any amounts prepaid pursuant to clauses 4.3, 4.4
    or 4.5 shall be applied against the Relevant Tranche and
    thereafter against the Loan in accordance with clause 4.7.2.



 



    4.7.4 The Borrowers’ obligations set out in
    Clause 4.1.1 shall not be affected by any prepayment in
    respect of the Loan pursuant to clause 4.2.



 



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



 




    5  FEES
    AND EXPENSES



 




    5.1  Commission



 



    5.1.1 The Borrowers agree to pay to the Payment Agent for
    the account of the Lenders pro rata in accordance with their
    Total Commitments quarterly in arrears from the Execution Date
    until the end of the Drawdown Period and on the last day of the
    Drawdown Period commitment commission computed from the
    Execution Date at a rate of zero point six per cent (0.60%) per
    annum on the daily amount of the undrawn Loan Facility.



 



    5.1.2 The commission referred to in clause 5.1.1 must
    be paid by the Borrowers to the Payment Agent, whether or not
    any part of the Total Commitment is ever advanced and shall be
    non-refundable.



 




    5.2  Arrangement
    Fee



 



    The Borrowers shall pay to the Payment Agent on the first
    Drawdown Date an arrangement fee of USD562,500 for the account
    of the Lenders in such proportion as they shall agree between
    them.



 




    5.3  Expenses



 



    The Borrowers agree to reimburse the Banks on a full indemnity
    basis within ten (10) days of demand all expenses
    and/or
    disbursements whatsoever (including without limitation legal,
    printing, travel and out of












Table of Contents







    pocket expenses and expenses related to the provision of legal
    and insurance opinions referred to in
    schedule 3) certified by the Banks or any of them as
    having been incurred by them from time to time:



 



    5.3.1 in connection howsoever with the syndication of the
    Loan Facility and with the negotiation, preparation, execution
    and, where relevant, registration of the Security Documents and
    of any contemplated or actual amendment, or indulgence or the
    granting of any waiver or consent howsoever in connection with,
    any of the Security Documents (including legal fees and any
    travel expenses); and



 



    5.3.2 in contemplation or furtherance of, or otherwise
    howsoever in connection with, the exercise or enforcement of, or
    preservation of any rights, powers, remedies or discretions
    under any of the Security Documents, or in consideration of the
    Banks’ rights thereunder or any action proposed or taken
    following the occurrence of a Default or otherwise in respect of
    the moneys owing under any of the Security Documents, together
    with interest at the rate referred to in clause 3.4 from
    the date on which reimbursement of such expenses
    and/or
    disbursements were due following demand to the date of payment
    (as well after as before judgment).



 




    5.4  Value
    added tax



 



    All fees and expenses payable pursuant to this Agreement must be
    paid together with value added tax or any similar tax (if any)
    properly chargeable thereon in any jurisdiction. Any value added
    tax chargeable in respect of any services supplied by the Banks
    or any of them under this Agreement shall, on delivery of the
    value added tax invoice, be paid in addition to any sum agreed
    to be paid hereunder.



 




    5.5  Stamp
    and other duties



 



    The Borrowers must pay all stamp, documentary, registration or
    other like duties or taxes (including any duties or taxes
    payable by any of the Banks) imposed on or in connection with
    any of the Underlying Documents, the Security Documents or the
    Loan or any Advance and agree to indemnify the Banks or any of
    them against any liability arising by reason of any delay or
    omission by the Borrowers to pay such duties or taxes.



 




    6  PAYMENTS
    AND TAXES; ACCOUNTS AND CALCULATIONS



 




    6.1  No
    set-off or counterclaim



 



    All payments to be made by the Borrowers under any of the
    Security Documents must be made in full, without any set off or
    counterclaim whatsoever and, subject as provided in
    clause 6.6, free and clear of any deductions or
    withholdings, in USD on or before 11:00 am on the due date in
    freely available funds to such account at such bank and in such
    place as the Payment Agent may from time to time specify for
    this purpose. Save as otherwise provided in this Agreement or
    any other relevant Security Documents, such payments shall be
    for the account of all Lenders and the Payment Agent shall
    distribute such payments in like funds as are received by the
    Payment Agent to the Lenders rateably, in the proportions which
    their respective Contributions bear to the aggregate of the Loan
    and the Advances on the date on which such payment is made.



 




    6.2  Payment
    by the Lenders



 



    All sums to be advanced by the Lenders to the Borrowers under
    this Agreement shall be remitted in USD on the relevant Drawdown
    Date to the account of the Payment Agent at such bank as the
    Payment Agent may have notified to the Lenders and shall be paid
    by the Payment Agent on such date in like funds as are received
    by the Payment Agent to the account specified in the relevant
    Drawdown Notice.



 




    6.3  Non-Banking
    Days



 



    When any payment under any of the Security Documents would
    otherwise be due on a day which is not a Banking Day, the due
    date for payment shall be extended to the next following Banking
    Day unless such Banking Day falls in the next calendar month in
    which case payment shall be made on the immediately preceding
    Banking Day.











Table of Contents








    6.4  Calculations



 



    All interest and other payments of an annual nature under any of
    the Security Documents shall accrue from day to day and be
    calculated on the basis of actual days elapsed and a three
    hundred and sixty (360) day year.



 




    6.5  Currency
    of account



 



    If any sum due from the Borrowers under any of the Security
    Documents, or under any order or judgment given or made in
    relation thereto, must be converted from the currency (“the
    first currency”) in which the same is payable thereunder
    into another currency (“the second currency”) for the
    purpose of (i) making or filing a claim or proof against
    the Borrowers, (ii) obtaining an order or judgment in any
    court or other tribunal or (iii) enforcing any order or
    judgment given or made in relation thereto, the Borrowers
    undertake to indemnify and hold harmless the Lender from and
    against any loss suffered as a result of any discrepancy between
    (a) the rate of exchange used for such purpose to convert
    the sum in question from the first currency into the second
    currency and (b) the rate or rates of exchange at which the
    Lender may in the ordinary course of business purchase the first
    currency with the second currency upon receipt of a sum paid to
    it in satisfaction, in whole or in part, of any such order,
    judgment, claim or proof. Any amount due from the Borrowers
    under this clause 6.5 shall be due as a separate debt and
    shall not be affected by judgment being obtained for any other
    sums due under or in respect of any of the Security Documents
    and the term “rate of exchange” includes any premium
    and costs of exchange payable in connection with the purchase of
    the first currency with the second currency.



 




    6.6  Grossing-up
    for Taxes — by the Borrowers



 



    If at any time the Borrowers must make any deduction or
    withholding in respect of Taxes or deduction in respect of any
    royalty payment, duty, assessment or other charge or otherwise
    from any payment due under any of the Security Documents for the
    account of any Bank or if the Payment Agent or the Security
    Trustee must make any deduction or withholding from a payment to
    another Bank or withholding in respect of Taxes from any payment
    due under any of the Security Documents, the sum due from the
    Borrowers in respect of such payment must be increased to the
    extent necessary to ensure that, after the making of such
    deduction or withholding, the relevant Bank receives on the due
    date for such payment (and retains, free from any liability in
    respect of such deduction or withholding), a net sum equal to
    the sum which it would have received had no such deduction or
    withholding been required to be made and the Borrowers must
    indemnify each Bank against any losses or costs incurred by it
    by reason of any failure of the Borrowers to make any such
    deduction or withholding or by reason of any increased payment
    not being made on the due date for such payment. Provided
    however that if any Bank or the Agent or the Security Trustee
    shall be or become entitled to any Tax credit or relief in
    respect of any Tax which is deducted from any payment by the
    Borrowers and it actually receives a benefit from such Tax
    credit or relief in its country of domicile, incorporation or
    residence, the relevant Bank or the Agent or the Security
    Trustee, as the case may be, shall, subject to any laws or
    regulations applicable thereto, pay to the Borrowers after such
    benefit is effectively received by the relevant Bank or the
    Agent or the Security Trustee, as the case may be, such amounts
    (which shall be conclusively certified by the Agent) as shall
    ensure that the net amount actually retained by the relevant
    Bank or the Agent or the Security Trustee, as the case may be,
    is equal to the amount which would have been retained if there
    had been no such deduction. The Borrowers must promptly deliver
    to the Payment Agent any receipts, certificates or other proof
    evidencing the amounts (if any) paid or payable in respect of
    any deduction or withholding as aforesaid.



 




    6.7  Grossing-up
    for Taxes — by the Lenders



 



    If at any time a Lender must make any deduction or withholding
    in respect of Taxes from any payment due under any of the
    Security Documents for the account of the Payment Agent or the
    Security Trustee, the sum due from such Lender in respect of
    such payment must be increased to the extent necessary to ensure
    that, after the making of such deduction or withholding, the
    Payment Agent or, as the case may be, the Security Trustee
    receives on the due date for such payment (and retains free from
    any liability in respect of












Table of Contents







    such deduction or withholding) a net sum equal to the sum which
    it would have received had no such deduction or withholding been
    required to be made and each Lender must indemnify the Payment
    Agent and the Security Trustee against any losses or costs
    incurred by it by reason of any failure of such Lender to make
    any such deduction or withholding or by reason of any increased
    payment not being made on the due date for such payment.



 




    6.8  Loan
    account



 



    Each Lender shall maintain, in accordance with its usual
    practice, an account evidencing the amounts from time to time
    lent by, owing to and paid to it under the Security Documents.
    The Payment Agent
    and/or the
    Security Trustee shall maintain a control account showing the
    Loan, the Advances and other sums owing by the Borrowers under
    the Security Documents and all payments in respect thereof being
    made from time to time. The control account shall, in the
    absence of manifest error, be prima facie evidence of the amount
    from time to time owing by the Borrowers under the Security
    Documents.



 




    6.9  Payment
    Agent may assume receipt



 



    Where any sum is to be paid under the Security Documents to the
    Payment Agent or, as the case may be, the Security Trustee for
    the account of another person, the Payment Agent or, as the case
    may be, the Security Trustee may assume that the payment will be
    made when due and the Payment Agent or, as the case may be, the
    Security Trustee may (but shall not be obliged to) make such sum
    available to the person so entitled. If it proves to be the case
    that such payment was not made to the Payment Agent or, as the
    case may be, the Security Trustee, then the person to whom such
    sum was so made available must on request refund such sum to the
    Payment Agent or, as the case may be, the Security Trustee
    together with interest thereon sufficient to compensate the
    Payment Agent or, as the case may be, the Security Trustee for
    the cost of making available such sum up to the date of such
    repayment and the person by whom such sum was payable must
    indemnify the Payment Agent or, as the case may be, the Security
    Trustee for any and all loss or expense which the Payment Agent
    or, as the case may be, the Security Trustee may sustain or
    incur as a consequence of such sum not having been paid on its
    due date.



 




    6.10  Partial
    payments



 



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



 



    6.10.1 first, in or towards payment, on a pro-rata basis,
    of any unpaid costs and expenses of the Payment Agent, the Agent
    and the Security Trustee under any of the Security Documents;



 



    6.10.2 secondly, in or towards payment of any fees payable
    to the Arranger, the Agent or any of the other Banks under, or
    in relation to, the Security Documents which remain unpaid;



 



    6.10.3 thirdly, in or towards payment to the Lenders, on a
    pro rata basis, of any accrued interest owing in respect of the
    Loan which shall have become due under any of the Security
    Documents but remains unpaid;



 



    6.10.4 fourthly, in or towards repayment of the Loan which
    have become due and payable and in or towards payment to the
    Swap Bank of any sum which shall have become due under the
    Master Agreement but remains unpaid;



 



    6.10.5 fifthly, in or towards payment to the Lenders, on a
    pro rata basis, any Break Costs and any other sum relating to
    the Loan which shall have become due under any of the Security
    Documents but remains unpaid; and











Table of Contents







    The order of application set out in clauses 6.10.1 to
    6.10.5 may be varied by the Payment Agent if the Majority
    Lenders so direct, without any reference to, or consent or
    approval from, the Borrowers.



 




    7  REPRESENTATIONS
    AND WARRANTIES



 




    7.1  Continuing
    representations and warranties



 



    The Borrowers represent and warrant to each Bank that:



 



    7.1.1 Due incorporation



 



    each of the Security Parties is duly incorporated and validly
    existing in good standing, under the laws of its respective
    country of incorporation, in each case, as a corporation and has
    power to carry on its respective businesses as it is now being
    conducted and to own their respective property and other assets
    to which it has unencumbered legal and beneficial title except
    as disclosed to the Agent in writing;



 



    7.1.2 Corporate power



 



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



 



    7.1.3 Binding obligations



 



    the Underlying Documents and the Security Documents, when
    executed, will constitute valid and legally binding obligations
    of the relevant Security Parties enforceable in accordance with
    their respective terms;



 



    7.1.4 No conflict with other obligations



 



    the execution and delivery of, the performance of their
    obligations under, and compliance with the provisions of, the
    Underlying Documents and the Security Documents by the relevant
    Security Parties will not (i) contravene any existing
    applicable law, statute, rule or regulation or any judgment,
    decree or permit to which any Security Party or other member of
    the Group is subject, (ii) conflict with, or result in any
    breach of any of the terms of, or constitute a default under,
    any agreement or other instrument to which any Security Party or
    any other member of the Group is a party or is subject or by
    which it or any of its property is bound, (iii) contravene
    or conflict with any provision of the constitutional documents
    of any Security Party or (iv) result in the creation or
    imposition of, or oblige any of the Security Parties to create,
    any Encumbrance (other than a Permitted Encumbrance) on any of
    the undertakings, assets, rights or revenues of any of the
    Security Parties;



 



    7.1.5 No default



 



    no Default has occurred;



 



    7.1.6 No litigation or judgments



 



    no Proceedings are current, pending or, to the knowledge of the
    officers of any Borrower, threatened against any of the Security
    Parties or any other Group Members or their assets which could
    have a Material Adverse Effect and there exist no judgments,
    orders, injunctions which would materially affect the
    obligations of the Security Parties under the Security Documents;



 



    7.1.7 No filings required



 



    except for the registration of the Mortgages in the relevant
    register under the laws of the relevant Flag State through the
    relevant Registry, it is not necessary to ensure the legality,
    validity, enforceability or admissibility in evidence of any of
    the Underlying Documents or any of the Security Documents that
    they or any other instrument be notarised, filed, recorded,
    registered or enrolled in any court, public office or elsewhere
    in any Pertinent Jurisdiction or that any stamp, registration or
    similar tax or charge be paid in any












Table of Contents







    Pertinent Jurisdiction on or in relation to any of the
    Underlying Documents or the Security Documents and each of the
    Underlying Documents and the Security Documents is in proper
    form for its enforcement in the courts of each Pertinent
    Jurisdiction;



 



    7.1.8 Required Authorisations and legal compliance



 



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



 



    7.1.9 Choice of law



 



    the choice of English law to govern the Underlying Documents and
    the Security Documents (other than the Mortgages and the
    Earnings Account Pledge and the Retention Account Pledge), the
    choice of the law of the Flag State to govern the Mortgages, the
    choice of greek law to govern the Earnings Account Pledge and
    the Retention Account 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;



 



    7.1.10 No immunity



 



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



 



    7.1.11 Financial statements correct and complete



 



    the latest audited and unaudited consolidated financial
    statements of the Corporate Guarantor in respect of the relevant
    financial year as delivered to the Agent present or will present
    fairly and accurately the financial position of the Corporate
    Guarantor and the consolidated financial position of the Group
    as at the date thereof and the results of the operations of the
    Corporate Guarantor and the consolidated results of the
    operations of the Group for the financial year ended on such
    date and, as at such date, neither the Corporate Guarantor nor
    any of its subsidiaries had any significant liabilities
    (contingent or otherwise) or any unrealised or anticipated
    losses which are not disclosed by, or reserved against or
    provided for in, such financial statements;



 



    7.1.12 Pari passu



 



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



 



    7.1.13 Information/ Material Adverse Effect



 



    all information, whatsoever provided by any Security Party to
    the Agent in connection with the negotiation and preparation of
    the Security Documents or otherwise provided hereafter in
    relation to, or pursuant to this Agreement is, or will be, true
    and accurate in all material respects and not misleading, does
    or will not omit material facts and all reasonable enquiries
    have been, or shall have been, made to verify the facts and
    statements contained therein and there has not occurred any
    event which could have a Material Adverse Effect on any Security
    Party since such information was provided to the Agent; there
    are, or will be, no other facts the omission of which would make
    any fact or statement therein misleading;



 



    7.1.14 No withholding Taxes



 



    no Taxes anywhere are imposed whatsoever by withholding or
    otherwise on any payment to be made by any Security Party under
    the Underlying Documents or the Security 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 Underlying Documents or the Security Documents or any other
    document or instrument to be executed or delivered under any of
    the Security Documents;



 



    7.1.15 Use of proceeds











Table of Contents







    the Borrowers shall apply the Loan only for the purposes
    specified in clauses 1.1 and 2.1;



 



    7.1.16 The Mortgaged Vessels



 



    throughout the Facility Period, each Mortgaged Vessel will,
    following its Delivery Date, be :



 



    (a) in the absolute sole, legal and beneficial ownership of
    the relevant Owner;



 



    (b) registered through the offices of the relevant Registry
    as a ship under the laws and flag of the relevant Flag State;



 



    (c) in compliance with the ISM Code and the ISPS Code and
    operationally seaworthy and in every way fit for service;



 



    (d) in good and sea-worthy and cargo-worthy
    condition; and



 



    (e) classed with the relevant Classification free of all
    requirements and recommendations of the relevant Classification
    Society.



 



    7.1.17 Mortgaged Vessels’ employment



 



    except with prior notice to the Lenders, there will not be any
    agreement or arrangement whereby the Earnings (as defined in the
    relevant Ship Security Documents) of any Mortgaged Vessel may be
    shared howsoever with any other person;



 



    7.1.18 Freedom from Encumbrances



 



    no Mortgaged Vessel nor its Earnings, Insurances or Requisition
    Compensation (each as defined in the relevant Ship Security
    Documents) nor the Earnings Account nor any Extended Employment
    Contract in respect of such Mortgaged Vessel nor any other
    properties or rights which are, or are to be, the subject of any
    of the Security Documents nor any part thereof will be subject
    to any Encumbrance except Permitted Encumbrances;



 



    7.1.19 Environmental Matters



 



    except as may already have been disclosed by the Borrowers in
    writing to, and acknowledged and accepted in writing by, the
    Agent:



 



    (a) the Borrowers and, to the best of the Borrowers’
    knowledge and belief (having made due enquiry), their respective
    Environmental Affiliates, have complied with the provisions of
    all Environmental Laws;



 



    (b) the Borrowers and, to the best of the Borrowers’
    knowledge and belief (having made due enquiry), their respective
    Environmental Affiliates have obtained all Environmental
    Approvals and are in compliance with all such Environmental
    Approvals;



 



    (c) no Environmental Claim has been made or threatened or
    pending against any Borrower, or, to the best of the
    Borrowers’ knowledge and belief (having made due enquiry),
    any of their respective Environmental Affiliates; and



 



    (d) there has been no Environmental Incident;



 



    7.1.20 ISM and ISPS Code



 



    With effect from the Delivery Date of its Vessel, each of the
    Borrowers will comply with and continue to comply with and
    procure that the Manager complies with and continues to comply
    with the ISM Code, the ISPS Code and all other statutory and
    other requirements relative to its business and in particular
    each Borrower or the Manager will obtain and maintain a valid
    DOC and SMC for each Mortgaged Vessels and that it and the
    Manager will implement and continue to implement an ISM SMS;



 



    7.1.21 Copies true and complete











Table of Contents







    the Certified Copies or originals of the Underlying Documents
    delivered or to be delivered to the Agent pursuant to
    clause 8.1 are, or will when delivered be, true and
    complete copies or, as the case may be, originals of such
    documents; and such documents constitute valid and binding
    obligations of the parties thereto enforceable in accordance
    with their respective terms and there have been no amendments or
    variations thereof or defaults thereunder;



 



    7.1.22 the Borrowers are the ultimate beneficiaries of the
    Loan;



 



    7.1.23 no Security Party has incurred any Indebtedness save
    under this Agreement or as otherwise disclosed to the Agent in
    writing or as disclosed in the Group’s public filings;



 



    7.1.24 the Corporate Guarantor and all Borrowers have filed
    all tax and other fiscal returns required to be filed by any tax
    authority to which they are subject;



 



    7.1.25 no Borrower has an office in England.



 




    7.2  Repetition
    of representations and warranties



 



    On each day throughout the Facility Period, the Borrowers shall
    be deemed to repeat the representations and warranties in
    clause 7 updated mutatis mutandis as if made with reference
    to the facts and circumstances existing on such day.



 




    8  UNDERTAKINGS



 




    8.1  General



 



    The Borrowers undertake with each Bank that, from the Execution
    Date until the end of the Facility Period, they will:



 



    8.1.1 Notice of Default and Proceedings



 



    promptly inform the Agent of (a) any Default and of any
    other circumstances or occurrence which might adversely affect
    the ability of any Security Party to perform its obligations
    under any of the Security Documents and (b) as soon as the
    same is instituted or threatened, details of any Proceedings
    involving any Security Party which could have a material adverse
    effect on that Security Party
    and/or the
    operation of any of the Vessels (including, but not limited to
    any Total Loss of a Vessel or the occurrence of any
    Environmental Incident) and will from time to time, if so
    requested by the Agent, confirm to the Agent in writing that,
    save as otherwise stated in such confirmation, no Default has
    occurred and is continuing and no such Proceedings are on foot
    or threatened;



 



    8.1.2 Authorisation



 



    obtain or cause to be obtained, maintain in full force and
    effect and comply fully with all Required Authorisations,
    provide the Agent with Certified Copies of the same and do, or
    cause to be done, all other acts and things which may from time
    to time be necessary or desirable under any applicable law
    (whether or not in the Pertinent Jurisdiction) for the continued
    due performance of all the obligations of the Security Parties
    under each of the Security Documents;



 



    8.1.3 Corporate Existence/Ownership



 



    ensure that each Security Party maintains its corporate
    existence as a body corporate duly organised and validly
    existing and in good standing under the laws of the Pertinent
    Jurisdiction and ensure that each Borrower is owned, directly or
    through other companies, by the Corporate Guarantor for the time
    being;



 



    8.1.4 Use of proceeds



 



    use the Advances exclusively for the purposes specified in
    clauses 1.1 and 2.1;



 



    8.1.5 Pari passu











Table of Contents







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



 



    8.1.6 Financial statements



 



    send to the Agent (or procure that is sent):



 



    (a) as soon as possible, but in no event later than
    180 days after the end of each of its Financial Years,
    annual audited (prepared in accordance with US GAAP by a firm of
    accountants acceptable to the Agent) consolidated balance sheet
    and profit and loss accounts of the Corporate Guarantor and all
    companies which are owned, directly or indirectly, or controlled
    by it (commencing with the Financial Year ending
    31 December 2010); and



 



    (b) as soon as possible, but in no event later than
    60 days after the end of each 3 month period in each
    of its Financial Years, the Corporate Guarantor’s unaudited
    consolidated balance sheet and profit and loss accounts for that
    3 month period certified as to their correctness by its
    chief financial officer.



 



    8.1.7 Reimbursement of MII & MAP Policy premiums



 



    Whether or not any amount is borrowed under this Agreement,
    reimburse each Bank on the Agent’s written demand the
    amount of the premium payable by such Bank for the inception or,
    as the case may be, extension
    and/or
    continuance of the MII & MAP Policy (including any
    insurance tax thereon);



 



    8.1.8 Compliance Certificates



 



    deliver to the Agent on the earlier of (i) the date on
    which the quarterly reports are delivered under
    clause 8.1.6 and (ii) the date falling 75 days
    after the end of the financial quarter to which they refer, a
    Compliance Certificate together with such supporting information
    as the Agent may require.



 



    8.1.9 Provision of further information



 



    provide the Agent, and procure that the Corporate Guarantor
    provide the Agent, with such financial or other information
    concerning any Borrower and their respective affairs,
    activities, financial standing, Indebtedness and operations and
    the performance of the Mortgaged Vessels as the Agent or any
    Lender (acting through the Agent) may from time to time
    reasonably require and all other documentation and information
    as any Lender may from time to time require in order to comply
    with its, and all other relevant, know-your-customer regulations;



 



    8.1.10 Obligations under Security Documents



 



    duly and punctually perform each of the obligations expressed to
    be imposed or assumed by them under the Security Documents and
    Underlying Documents and will procure that each of the other
    Security Parties will, duly and punctually perform each of the
    obligations expressed to be assumed by it under the Security
    Documents and the Underlying Documents to which it is a party;



 



    8.1.11 Compliance with ISM Code



 



    comply with, and will procure that any Operator will comply
    with, and ensure that the Mortgaged Vessels and any Operator
    comply with the requirements of the ISM Code, including (but not
    limited to) the maintenance and renewal of valid certificates
    pursuant thereto throughout the Security Period (as defined in
    the Mortgages);



 



    8.1.12 Withdrawal of DOC and SMC



 



    immediately inform the Agent if there is any actual withdrawal
    of their or any Operator’s DOC or the SMC of any Mortgaged
    Vessel;



 



    8.1.13 Issuance of DOC and SMC











Table of Contents







    and will procure that any Operator will promptly inform the
    Agent of the receipt by any Borrower or any Operator of
    notification that its application for a DOC or any application
    for an SMC for any Mortgaged Vessel has been refused;



 



    8.1.14 ISPS Code Compliance



 



    and will procure that the Manager or any Operator will:



 



    (a) maintain at all times a valid and current ISSC in
    respect of each Mortgaged Vessel;



 



    (b) immediately notify the Agent in writing of any actual
    or threatened withdrawal, suspension, cancellation or
    modification of the ISSC in respect of a Mortgaged
    Vessel; and



 



    (c) procure that each Mortgaged Vessel will comply at all
    times with the ISPS Code;



 



    8.1.15 Compliance with Laws and payment of taxes



 



    and will comply with all relevant Environmental Laws, laws,
    statutes and regulations and pay all taxes for which it is
    liable as they fall due;



 



    8.1.16 Charters etc.



 



    (i) deliver to the Agent a Certified Copy of each Extended
    Employment Contract upon its execution, (ii) forthwith on
    the Agent’s request execute (a) a Charter Assignment
    in respect thereof and (b) any notice of assignment
    required in connection therewith and use reasonable efforts to
    procure the acknowledgement of any such notice of assignment by
    the relevant charterer (provided that any failure to procure the
    same shall not constitute an Event of Default) and
    (iii) pay all legal and other costs incurred by the Agent
    in connection with any such Charter Assignments, forthwith
    following the Agent’s demand.



 



    8.1.17 Financial Covenants of the Corporate
    Guarantor’s Group



 



    procure that



 



    (a) at no time shall the Liquidity of the Group be less
    than the Minimum Liquidity;



 



    (b) as of the earlier of (i) the Final Delivery Date
    and (ii) 1 January 2013, the Net Worth of the Group
    will at all times exceed USD75,000,000;



 



    (c) as of the earlier of (i) the Final Delivery Date
    and (ii) 1 January 2013, the Total Liabilities divided
    by the Total Assets (adjusted for market values of vessels
    calculated in accordance with Clause 8.2.2) shall be less
    than 75%.



 



    8.1.18 Inspection



 



    the Agent, at the cost of the Borrowers and upon receipt of at
    least 15 days written notice, by surveyors or other persons
    appointed by it for such purpose, to board any Mortgaged Vessel
    at all other reasonable times for the purpose of inspecting her
    and to afford all proper facilities for such inspections and for
    this purpose to give the Agent reasonable advance notice of any
    intended drydocking of each Vessel (whether for the purpose of
    classification, survey or otherwise) and to pay the costs in
    respect of one inspection in each calendar year; and



 



    8.1.19 Delivery



 



    Pay to the Builder all amounts payable on delivery of the
    Vessels in accordance with the relevant Shipbuilding Contract
    and take, or as the case may be, ensure that the relevant
    Borrower, takes delivery of the relevant Vessel.



 



    8.1.20 Subordination



 



    Ensure that all Indebtedness of any Borrower to its shareholders
    or to any other Group Member is fully subordinated, and to
    subordinate any Indebtedness issued to it by the Corporate
    Guarantor, all in a form acceptable to the Agent (acting on the
    instructions of the Majority Lenders).











Table of Contents







    8.1.21 Dividends



 



    The Borrowers and Corporate Guarantor may declare or pay
    dividends or distribute any of their present or future assets,
    undertakings, rights or revenues in an amount not exceeding 50%
    of the Net Profits for any relevant financial year to any of
    their partners, members or shareholders, and the Corporate
    Guarantor may make such other investments as it may require,
    only if there has not occurred any Event of Default.



 



    8.1.22 Corporate Guarantees



 



    On the Share Acquisition Date the Borrowers shall procure the
    delivery to the Security Trustee of:



 



    (a) the Corporate Guarantee duly executed by Navios
    Acquisition (and upon receipt thereof by the Security Trustee
    the Corporate Guarantee which was executed on the first Drawdown
    Date shall terminate and cease to be enforceable, which the
    Security Trustee shall confirm in writing at that time) ;



 



    (b) such documentation equivalent to that set out in
    Schedule 3 Part A items (a)-(d) inclusive in respect
    of Navios Acquisition as the Agent may require;



 



    (c) within 10 Banking Days of the Share Acquisition Date,
    the opening balance sheet of Navios Acquisition duly audited by
    a firm of accountants acceptable the Lenders;



 



    (d) a copy of the presentation given to the investors in
    Navios Acquisition;



 



    (e) a cashflow forecast for the Group for the 3 years
    following the Share Acquisition Date;



 



    (f) evidence that Navios Acquisition is the sole
    shareholder of the Shareholder and the Shareholder is the sole
    shareholder of each of the Borrower; and



 



    (g) if required by the Lenders, Shares Pledges duly
    executed by the Shareholder in respect of each Borrower together
    with all documents required to be delivered pursuant thereto.



 




    8.2  Security
    value maintenance



 



    8.2.1 Security shortfall



 



    If, at any time after the first Delivery Date, the Security
    Value shall be less than the Required Security Amount, the Agent
    (acting on the instructions of the Majority Lenders) shall give
    notice to the Borrowers requiring that such deficiency be
    remedied and then the Borrowers must either:



 



    (a) prepay within a period of thirty (30) days of the
    date of receipt by the Borrowers of the Agent’s said notice
    such part of the Delivered Tranches as will result in the
    Security Value after such prepayment (taking into account any
    other repayment of the Delivered Tranches made between the date
    of the notice and the date of such prepayment) being equal to or
    higher than the Required Security Amount; or



 



    (b) within thirty (30) days of the date of receipt by
    the Borrowers of the Agent’s said notice constitute to the
    satisfaction of the Agent such further security for the Loan as
    shall be acceptable to the Majority Lenders having a value for
    security purposes (as determined by the Agent in its absolute
    discretion) at the date upon which such further security shall
    be constituted which, when added to the Security Value, shall
    not be less than the Required Security Amount as at such date.



 



    The provisions of clauses 4.6 and 4.7 shall apply to
    prepayments under clause 8.2.1(a) provided that the Agent
    shall apply such prepayments (i) pro rata against the
    Tranches, (ii) in reduction of the repayment instalments under
    clause 4.1 pro rata and the amounts of the Loan prepaid
    hereunder shall not be available to be re-borrowed.



 



    8.2.2 Valuation of Mortgaged Vessels



 



    Each Mortgaged Vessel shall, for the purposes of this Agreement,
    be valued (at the Borrowers’ expense) in USD by taking
    either (i) the valuation prepared by an Approved Broker or
    (ii) if requested by the Lenders, the arithmetic mean of
    valuations prepared by any two Approved Brokers appointed by the
    Agent, in each case such valuations to be made without physical
    inspection, and on the basis of a sale for prompt delivery for












Table of Contents







    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 the relevant Mortgaged Vessel to be
    obtained (in addition to (a) above) at any other time as
    the Agent (acting on the instructions of the Majority Lenders)
    shall additionally require, at the cost of the Lenders.



 



    The Approved Brokers’ valuations for each Mortgaged Vessel
    on each such occasion shall constitute the Valuation Amount of
    such Mortgaged Vessel for the purposes of this Agreement until
    superceded by the next such valuation.



 



    8.2.3 Information



 



    The Borrowers undertake with the Banks to supply to the Agent
    and to the Approved Broker such information concerning the
    relevant Mortgaged Vessel and its condition as such shipbrokers
    may require for the purpose of determining any Valuation Amount.



 



    8.2.4 Costs



 



    All costs in connection with the obtaining and any determining
    of any Valuation Amount pursuant to Clause 8.2.2(a) and any
    valuation either of any additional security for the purposes of
    ascertaining the Security Value at any time or necessitated by
    the Borrowers electing to constitute additional security
    pursuant to clause 8.2.1(b), must be paid by the Borrowers.



 



    8.2.5 Valuation of additional security



 



    For the purposes of this clause 8.2, the market value
    (i) of any additional security over a ship (other than the
    Vessels) shall be determined in accordance with
    clause 8.2.2 and (ii) of any other additional security
    provided or to be provided to the Banks or any of them shall be
    determined by the Agent in its absolute discretion.



 



    8.2.6 Documents and evidence



 



    In connection with any additional security provided in
    accordance with this clause 8.2, the Agent shall be
    entitled to receive (at the Borrowers’ expense) such
    evidence and documents of the kind referred to in
    schedule 3 as may in the Agent’s opinion be
    appropriate and such favourable legal opinions as the Agent
    shall in its absolute discretion require.



 




    8.3  Negative
    undertakings



 



    The Borrowers jointly and severally undertake with each Bank
    that, from the Execution Date until the end of the Facility
    Period, they will not, without the prior written consent of the
    Agent (acting on the instructions of the Majority Banks):



 



    8.3.1 Negative pledge



 



    permit any Encumbrance (other than a Permitted Encumbrance) to
    subsist, arise or be created or extended over all or any part of
    their respective present or future undertakings, assets, rights
    or revenues to secure or prefer any present or future
    Indebtedness or other liability or obligation of any Group
    Member or any other person;



 



    8.3.2 No merger or transfer



 



    merge or consolidate with any other person or permit any change
    to the legal or beneficial ownership of their shares from that
    existing at the Execution Date;



 



    8.3.3 Disposals



 



    sell, transfer, assign, create security or option over, pledge,
    pool, abandon, lend or otherwise dispose of or cease to exercise
    direct control over any part of their present or future
    undertaking, assets, rights or revenues (otherwise than by
    transfers, sales or disposals for full consideration in the
    ordinary course of trading) whether by one or a series of
    transactions related or not;











Table of Contents







    8.3.4 Other business or manager



 



    undertake any business other than the ownership and operation of
    the Ships or employ anyone other than the Manager as commercial
    and technical manager of the Vessels;



 



    8.3.5 Acquisitions



 



    acquire any further assets other than the Vessels and rights
    arising under contracts entered into by or on behalf of the
    Borrowers in the ordinary course of their businesses of owning,
    operating and chartering the Vessels;



 



    8.3.6 Other obligations



 



    incur any obligations except for obligations arising under the
    Underlying Documents or the Security Documents or contracts
    entered into in the ordinary course of their business of owning,
    operating and chartering the Vessels;



 



    8.3.7 No borrowing



 



    incur any Borrowed Money except for Borrowed Money pursuant to
    the Security Documents;



 



    8.3.8 Repayment of borrowings



 



    repay or prepay the principal of, or pay interest on or any
    other sum in connection with any of their Borrowed Money except
    for Borrowed Money pursuant to the Security Documents;



 



    8.3.9 Guarantees



 



    issue any guarantees or otherwise become directly or
    contingently liable for the obligations of any person, firm, or
    corporation except pursuant to the Security Documents and except
    for (i) guarantees from time to time required in the
    ordinary course by any protection and indemnity or war risks
    association with which a Vessel is entered, guarantees required
    to procure the release of such Vessel from any arrest,
    detention, attachment or levy or guarantees required for the
    salvage of a Vessel and (ii) such other guarantees to which
    the Agent shall have consented in writing on behalf of the Banks;



 



    8.3.10 Loans



 



    make any loans or grant any credit (save for normal trade credit
    in the ordinary course of business) to any person or agree to do
    so;



 



    8.3.11 Sureties



 



    permit any Indebtedness of any Borrower to any person (other
    than the Banks pursuant to the Security Documents) to be
    guaranteed by any person (except for guarantees from time to
    time required in the ordinary course of business and in the
    ordinary course by any protection and indemnity or war risks
    association with which a Vessel is entered, guarantees required
    to procure the release of such Vessel from any arrest,
    detention, attachment or levy or guarantees or undertakings
    required for the salvage of a Vessel and guarantees in favour of
    the Builder in respect of any Shipbuilding Contract); or



 



    8.3.12 Subsidiaries



 



    form or acquire any Subsidiaries.



 




    9  CONDITIONS



 




    9.1  Advance
    of any Advance



 



    The obligation of each Lender to make its Commitment available
    in respect of any Advance is conditional upon:



 



    9.1.1 that, on or before the service of the first Drawdown
    Notice hereunder, the Agent has received the documents described
    in Part A of Schedule 3 in form and substance
    satisfactory to the Agent and its lawyers;











Table of Contents







    9.1.2 that, on or before the service of the Drawdown Notice
    in respect of the Advances referred to in clause 2.5.1(a)
    the Agent has received the documents described in Part B of
    Schedule 3 in respect of the Relevant Vessel (as defined in
    Schedule 3) in form and substance satisfactory to the
    Agent and its lawyers;



 



    9.1.3 that, on or before the service of the Drawdown Notice
    in respect of the Advances referred to in clause 2.5.1(b),
    the Agent has received the documents described in Part C of
    Schedule 3 in respect of the Relevant Vessel in form and
    substance satisfactory to the Agent and its lawyers



 



    9.1.4 that, on or before service of the Drawdown Notice in
    respect of Advances referred to in clause 2.5.1(c), the
    Agent has received the documents described in Part D of
    Schedule 3 in respect of the Relevant Vessel in form and
    substance satisfactory to the Agent and its lawyers;



 



    9.1.5 that, on or before service of the Drawdown Notice in
    respect of Advances referred to in clause 2.5.1(d), the
    Agent has received the documents described in Part E of
    Schedule 3 in respect of the Relevant Vessel in form and
    substance satisfactory to the Agent and its lawyers;



 



    9.1.6 that, on or before service of the Drawdown Notice in
    respect of Advances referred to in clause 2.5.1(e), the
    Agent has received the documents described in Part F of
    Schedule 3 in respect of the Relevant Vessel in form and
    substance satisfactory to the Agent and its lawyers;



 



    9.1.7 that, on or before service of the Drawdown Notice in
    respect of Advances referred to in clause 2.5.1(f), the
    Agent has received the documents described in Part G of
    Schedule 3 in respect of the Relevant Vessel in form and
    substance satisfactory to the Agent and its lawyers;



 



    9.1.8 the representations and warranties contained in
    clause 7 and clauses 4.1 and 4.2 of the Corporate
    Guarantee being then true and correct as if each was made with
    respect to the facts and circumstances existing at such
    time; and



 



    9.1.9 no Default having occurred and being continuing and
    there being no Default which would result from the making of the
    Loan.



 




    9.2  Waiver
    of conditions precedent



 



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



 




    9.3  Further
    conditions precedent



 



    Not later than five (5) Banking Days prior to the Drawdown
    Date of an Advance and not later than five (5) Banking Days
    prior to any Interest Payment Date, the Agent (acting on the
    instructions of the Majority Lenders) may request and the
    Borrowers must, not later than two (2) Banking Days prior
    to such date, deliver to the Agent (at the Borrowers’
    expense) on such request further favourable certificates
    and/or
    opinions as to any or all of the matters which are the subject
    of clauses 7, 8, 9 and 10.



 




    9.4  Release
    of Shares Pledges



 



    The Lenders agree that upon the drawdown of the final Advance in
    respect of a Tranche, and receipt of a Negative Pledge in
    respect of the Owner of the Vessel financed by that Tranche, the
    Security Trustee shall (provided no Event of Default has
    occurred) release the Shares Pledge in respect of that
    Owner.











Table of Contents








    10  EVENTS
    OF DEFAULT



 




    10.1  Events



 



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



 



    10.1.1 Non-payment:  any Security
    Party fails to pay any sum payable by it under any of the
    Security Documents at the time, in the currency and in the
    manner stipulated in the Security Documents or the Underlying
    Documents (and so that, for this purpose, sums payable
    (i) under clauses 3.1 and 4.1 shall be treated as
    having been paid at the stipulated time if (aa) received by the
    Agent within two (2) days of the dates therein referred to
    and (bb) such delay in receipt is caused by administrative or
    other delays or errors within the banking system and
    (ii) on demand shall be treated as having been paid at the
    stipulated time if paid within two (2) Banking Days of
    demand); or



 



    10.1.2 Breach of Insurance and certain other
    obligations:  any Owner or, as the context may
    require, the Manager or any other person fails to obtain
    and/or
    maintain the Insurances (as defined in, and in accordance with
    the requirements of, the Ship Security Documents) for any of the
    Mortgaged Vessels or if any insurer in respect of such
    Insurances cancels the Insurances or disclaims liability by
    reason, in either case, of mis-statement in any proposal for the
    Insurances or for any other failure or default on the part of
    the Borrowers or any other person or a Borrower commits any
    breach of or omits to observe any of the obligations or
    undertakings expressed to be assumed by them under
    clause 8; or



 



    10.1.3 Breach of other
    obligations:  any Security Party commits any
    breach of or omits to observe any of its obligations or
    undertakings expressed to be assumed by it under any of the
    Security Documents (other than those referred to in
    clauses 10.1.1 and 10.1.2 above) unless such breach or
    omission, in the opinion of the Agent (following consultation
    with the Banks) is capable of remedy, in which case the same
    shall constitute an Event of Default if it has not been remedied
    within fifteen (15) days of the occurrence thereof; or



 



    10.1.4 Misrepresentation:  any
    representation or warranty made or deemed to be made or repeated
    by or in respect of any Security Party in or pursuant to any of
    the Security Documents or in any notice, certificate or
    statement referred to in or delivered under any of the Security
    Documents is or proves to have been incorrect or misleading in
    any material respect; or



 



    10.1.5 Cross-default:  There shall
    occur a default (howsoever therein described) under the any
    Indebtedness in an amount exceeding five million Dollars
    (USD5,000,000) of any Borrower or any Indebtedness of any
    Security Party is not paid when due (subject to applicable grace
    periods) or any such Indebtedness of any Borrower or any
    Security Party becomes (whether by declaration or automatically
    in accordance with the relevant agreement or instrument
    constituting the same) due and payable prior to the date when it
    would otherwise have become due (unless as a result of the
    exercise by the relevant Borrower or Security Party of a
    voluntary right of prepayment), or any creditor of a Borrower or
    any Security Party becomes entitled to declare any such
    Indebtedness due and payable or any facility or commitment
    available to any Borrower or any Security Party relating to
    Indebtedness is withdrawn, suspended or cancelled by reason of
    any default (however described) of the person concerned; or



 



    10.1.6 Execution:  any uninsured
    judgment or order made against any Security Party is not stayed,
    appealed against or complied with within fifteen (15) days
    or a creditor attaches or takes possession of, or a distress,
    execution, sequestration or other process is levied or enforced
    upon or sued out against, any of the undertakings, assets,
    rights or revenues of any Security Party and is not discharged
    within thirty (30) days; or



 



    10.1.7 Insolvency:  any Security
    Party is unable or admits inability to pay its debts as they
    fall due; suspends making payments on any of its debts or
    announces an intention to do so; becomes insolvent; or any
    Security Party (other than the Corporate Guarantor) has negative
    net worth (taking into account contingent liabilities); or
    suffers the declaration by any court, liquidator, receiver or
    administrator of a moratorium in respect of any of its
    Indebtedness; or











Table of Contents







    10.1.8 Reduction or loss of
    capital:  a meeting is convened by any
    Security Party (other than the Corporate Guarantor) without the
    Agent’s prior written consent, for the purpose of passing
    any resolution to purchase, reduce or redeem any of its share
    capital without the Agent’s prior written consent; or



 



    10.1.9 Dissolution:  any corporate
    action, Proceedings or other steps are taken to dissolve or
    wind-up any
    Security Party or an order is made or resolution passed for the
    dissolution or winding up of any Security Party or a notice is
    issued convening a meeting for such purpose; or



 



    10.1.10 Administration:  any
    petition is presented, notice given or other steps are taken
    anywhere to appoint an administrator of any Security Party or
    the Agent reasonably believes that any such petition or other
    step is imminent or an administration order is made in relation
    to any Security Party; or



 



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



 



    10.1.12 Compositions:  any
    corporate action, legal proceedings or other procedures or steps
    are taken, or negotiations commenced, by any Security Party or
    by any of its creditors (other than the Corporate Guarantor) or
    any legal proceedings are taken in respect of the Corporate
    Guarantor, with a view to the general readjustment or
    rescheduling of all or part of its Indebtedness or to proposing
    any kind of composition, compromise or arrangement involving
    such company and any of its creditors; or



 



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



 



    10.1.14 Cessation of business:  any
    Security Party suspends or ceases or threatens to suspend or
    cease to carry on its business without the prior written consent
    of the Agent, such consent not to be unreasonably
    withheld; or



 



    10.1.15 Seizure:  all or a material
    part of the undertaking, assets, rights or revenues of, or
    shares or other ownership interests in, any Security Party are
    seized, nationalised, expropriated or compulsorily acquired by
    or under the authority of any Government Entity; or



 



    10.1.16 Invalidity:  any of the
    Security Documents and the Underlying Documents shall at any
    time and for any reason become invalid or unenforceable or
    otherwise cease to remain in full force and effect, or if the
    validity or enforceability of any of the Security Documents and
    the Underlying Documents shall at any time and for any reason be
    contested by any Security Party which is a party thereto, or if
    any such Security Party shall deny that it has any, or any
    further, liability thereunder; or



 



    10.1.17 Unlawfulness:  any
    Unlawfulness occurs or it becomes impossible or unlawful at any
    time for any Security Party, to fulfil any of the covenants and
    obligations expressed to be assumed by it in any of the Security
    Documents or for a Bank to exercise the rights or any of them
    vested in it under any of the Security Documents or
    otherwise; or



 



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



 



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



 



    10.1.20 Arrest:  a Mortgaged Vessel
    is arrested, confiscated, seized, taken in execution, impounded,
    forfeited, detained in exercise or purported exercise of any
    possessory lien or other claim or otherwise taken from the
    possession of its Owner and that Owner shall fail to procure the
    release of such Mortgaged Vessel within a period of fifteen
    (15) days thereafter (this clause does not include capture
    of a Vessel by pirates); or











Table of Contents







    10.1.21 Registration:  the
    registration of a Mortgaged Vessel under the laws and flag of
    the relevant Flag State is cancelled or terminated without the
    prior written consent of the Majority Banks; or



 



    10.1.22 Unrest:  the Flag State of
    a Mortgaged Vessel 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 the Flag State by
    unconstitutional means unless the Owner of the Vessel registered
    in such Flag State shall have transferred its Vessel onto a new
    flag acceptable to the Banks within sixty (60) days of the
    start of such hostilities or civil war or seizure of
    power; or



 



    10.1.23 Environmental
    Incidents:  an Environmental Incident occurs
    which gives rise, or may give rise, to an Environmental Claim
    which could, in the opinion of the Agent be expected to have a
    material adverse effect (i) on the business, assets or
    financial condition of any Security Party or the Group taken as
    a whole or (ii) on the security constituted by any of the
    Security Documents or the enforceability of that security in
    accordance with its terms; or



 



    10.1.24 P&I:  an Owner or the
    Manager or any other person fails or omits to comply with any
    requirements of the protection and indemnity association or
    other insurer with which a Mortgaged Vessel is entered for
    insurance or insured against protection and indemnity risks
    (including oil pollution risks) to the effect that any cover
    (including, without limitation, any cover in respect of
    liability for Environmental Claims arising in jurisdictions
    where such Mortgaged Vessel operates or trades) is or may be
    liable to cancellation, qualification or exclusion at any
    time; or



 



    10.1.25 Material events:  any other
    event occurs or circumstance arises which, in the opinion of the
    Agent (following consultation with the Banks), 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
    Security Documents or (ii) the security created by any of
    the Security Documents; or



 



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



 



    10.1.27 Ownership:  there is any
    change in the ownership of any Borrower without the prior
    written consent of the Agent or (following the Share Acquisition
    Date) the number of shares of and in Navios Acquisition owned by
    Navios Maritime Holdings Inc., Mrs. Angeliki Frangou and
    their respective affiliates in aggregate falls below 30% of the
    issued shares of Navios Acquisition; or



 



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



 



    10.1.28 Master
    Agreement:  (i) an Event of Default or
    Potential Event of Default (or the equivalent under the Master
    Agreement) has occurred and is continuing under the Master
    Agreement or (ii) an Early Termination Date (as defined in
    the Master Agreement) has occurred or been effectively
    designated under the Master Agreement or (iii) a person
    entitled to do so gives notice of an Early Termination Date (as
    defined in the Master Agreement) or (iv) the Master
    Agreement is terminated, cancelled, suspended, rescinded or
    revoked or otherwise ceases to remain in full force and effect
    for any reason.



 




    10.2  Acceleration



 



    The Agent may, and if so requested by the Majority Lenders
    shall, without prejudice to any other rights of the Lenders, at
    any time after the happening of an Event of Default by notice to
    the Borrowers declare that:



 



    10.2.1 the obligation of each Lender to make its Commitment
    available shall be terminated, whereupon the Commitment shall be
    reduced to zero forthwith; and/or











Table of Contents







    10.2.2 the Loan and all interest accrued and all other sums
    payable whatsoever under the Security Documents have become due
    and payable, whereupon the same shall, immediately or in
    accordance with the terms of such notice, become due and payable.



 




    10.3  Demand
    Basis



 



    If, under clause 10.2.2, the Agent has declared the Loan to
    be due and payable on demand, at any time thereafter the Agent
    may (and if so instructed by the Majority Lenders shall) by
    written notice to the Borrowers (a) demand repayment of the
    Loan on such date as may be specified whereupon, regardless of
    any other provision of this Agreement, the Loan shall become due
    and payable on the date so specified together with all interest
    accrued and all other sums payable under this Agreement or
    (b) withdraw such declaration with effect from the date
    specified in such notice.



 




    11  INDEMNITIES



 




    11.1  General
    indemnity



 



    The Borrowers agree to indemnify each Bank on demand, without
    prejudice to any of such Bank’s other rights under any of
    the Security Documents, against any loss (including loss of
    Margin) or expense (including, without limitation, Break Costs)
    which such Bank shall certify as sustained by it as a
    consequence of any Default, any prepayment of the Loan being
    made under clauses 4.2, 4.3, 4.4, 4.5, 8.2.1(a) or 12.1 or
    any other repayment or prepayment of the Loan or part thereof
    being made otherwise than on an Interest Payment Date relating
    to the part of the Loan prepaid or repaid;
    and/or any
    Advance not being made for any reason (excluding any default by
    the Payment Agent, the Agent, the Security Trustee or any
    Lender) after the Drawdown Notice for such Advance has been
    given.



 




    11.2  Environmental
    indemnity



 



    The Borrowers shall indemnify each Bank on demand and hold it
    harmless from and against all costs, claims, expenses, payments,
    charges, losses, demands, liabilities, actions, Proceedings,
    penalties, fines, damages, judgements, orders, sanctions or
    other outgoings of whatever nature which may be incurred or made
    or asserted whensoever against such Bank at any time, whether
    before or after the repayment in full of principal and interest
    under this Agreement, arising howsoever out of an Environmental
    Claim made or asserted against such Bank which would not have
    been, or been capable of being, made or asserted against such
    Bank had it not entered into any of the Security Documents or
    been involved in any of the resulting or associated transactions.



 




    11.3  Capital
    adequacy and reserve requirements indemnity



 



    The Borrowers shall promptly indemnify each Lender on demand
    against any cost incurred or loss suffered by such Lender as a
    result of its complying with (i) the minimum reserve
    requirements from time to time of the European Central Bank
    (ii) any capital adequacy directive of the European Union
    and/or
    (iii) any revised framework for international convergence
    of capital measurements and capital standards
    and/or any
    regulation imposed by any Government Entity in connection
    therewith,
    and/or in
    connection with maintaining required reserves with a relevant
    national central bank to the extent that such compliance or
    maintenance relates to such Lender’s Commitment
    and/or
    Contribution or deposits obtained by it to fund the whole or
    part thereof and to the extent such cost or loss is not
    recoverable by such Lender under clause 12.2.



 




    12  UNLAWFULNESS
    AND INCREASED COSTS



 




    12.1  Unlawfulness



 



    If it is or becomes contrary to any law, directive or regulation
    for any Lender to contribute to an Advance or to maintain its
    Commitment or fund its Contribution to the Loan or any Advance,
    such Lender shall promptly, through the Agent, give notice to
    the Borrowers whereupon (a) such Lender’s Contribution
    and Commitment shall be reduced to zero and (b) the
    Borrowers shall be obliged to prepay such Lender’s












Table of Contents







    Contribution either (i) forthwith or (ii) on a future
    specified date not being earlier than the latest date permitted
    by the relevant law, directive or regulation together with
    interest accrued to the date of prepayment and all other sums
    payable by the Borrowers under this Agreement.



 




    12.2  Increased
    costs



 



    If the result of any change in, or in the interpretation or
    application of, or the introduction of, any law or any
    regulation, request or requirement (whether or not having the
    force of law, but, if not having the force of law, with which a
    Lender or, as the case may be, its holding company habitually
    complies), including (without limitation) those relating to
    Taxation, capital adequacy, liquidity, reserve assets, cash
    ratio deposits and special deposits, is to:



 



    12.2.1 subject any Lender to Taxes or change the basis of
    Taxation of any Lender with respect to any payment under any of
    the Security Documents (other than Taxes or Taxation on the
    overall net income, profits or gains of such Lender imposed in
    the jurisdiction in which its principal or lending office under
    this Agreement is located); and/or



 



    12.2.2 increase the cost to, or impose an additional cost
    on, any Lender or its holding company in making or keeping such
    Lender’s Commitment available or maintaining or funding all
    or part of such Lender’s Contribution; and/or



 



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



 



    12.2.4 reduce any Lender’s or its holding
    company’s rate of return on its overall capital by reason
    of a change in the manner in which it is required to allocate
    capital resources to such Lender’s obligations under any of
    the Security Documents; and/or



 



    12.2.5 require any Lender or its holding company to make a
    payment or forgo a return on or calculated by reference to any
    amount received or receivable by such Lender under any of the
    Security Documents; and/or



 



    12.2.6 require any Lender or its holding company to incur
    or sustain a loss (including a loss of future potential profits)
    by reason of being obliged to deduct all or part of its
    Contribution or the Loan from its capital for regulatory
    purposes,



 



    then and in each such case (subject to clause 12.3):



 



    (a) such Lender shall notify the Borrowers in writing of
    such event promptly upon its becoming aware of the same; and



 



    (b) the Borrowers shall on demand made at any time whether
    or not such Lender’s Contribution has been repaid, pay to
    the Payment Agent for the account of such Lender the amount
    which such Lender specifies (in a certificate setting forth the
    basis of the computation of such amount but not including any
    matters which such Lender or its holding company regards as
    confidential) is required to compensate such Lender
    and/or (as
    the case may be) its holding company for such liability to
    Taxes, cost, reduction, payment , forgone return or loss.



 



    For the purposes of this clause 12.2 “holding
    company” means the company or entity (if any) within the
    consolidated supervision of which a Lender is included.



 




    12.3  Exception



 



    Nothing in clause 12.2 shall entitle any Lender to receive
    any amount in respect of compensation for any such liability to
    Taxes, increased or additional cost, reduction, payment,
    foregone return or loss to the extent that the same is the
    subject of an additional payment under clause 6.6.















Table of Contents








    13  APPLICATION
    OF MONEYS, SET OFF, PRO-RATA PAYMENTS AND
    MISCELLANEOUS



 




    13.1  Application
    of moneys



 



    All moneys received by the Payment Agent
    and/or the
    Security Trustee under or pursuant to any of the Security
    Documents and expressed to be applicable in accordance with the
    provisions of this clause 13.1 or in a manner determined in
    the Security Trustee’s or (as the case may be) the Payment
    Agent’s discretion, shall be applied in the following
    manner:



 



    13.1.1 first, in or towards payment, on a pro-rata basis,
    of any unpaid costs and expenses of the Banks or any of them
    under any of the Security Documents;



 



    13.1.2 secondly, in or towards payment of any fees payable
    to the Arranger, the Payment Agent or any of the other Banks
    under, or in relation to, the Security Documents which remain
    unpaid;



 



    13.1.3 thirdly, in or towards payment to the Banks, on a
    pro rata basis, of any accrued interest owing in respect of the
    Loan which shall have become due under any of the Security
    Documents but remains unpaid;



 



    13.1.4 fourthly, in or towards repayment of the Loan
    (whether the same is due and payable or not) and in or towards
    payment to the Swap Bank of any sum which shall have become due
    under the Master Agreement but remains unpaid;



 



    13.1.5 fifthly, in or towards payment to the Lenders, on a
    pro rata basis any Break Costs and any other sum relating to the
    Loan which shall have become due under any of the Security
    Documents but remains unpaid;



 



    13.1.6 sixthly, the surplus (if any) shall be paid to the
    Borrowers or to whomsoever else may then be entitled to receive
    such surplus.



 




    13.2  Set-off



 



    13.2.1 Each Borrower irrevocably authorises each Bank
    (without prejudice to any of such Bank’s rights at law, in
    equity or otherwise), at any time and without notice to the
    Borrowers, to apply any credit balance to which any Borrower is
    then entitled standing upon any account of any Borrower with any
    branch of such Bank in or towards satisfaction of any sum due
    and payable from the Borrowers to such Bank under any of the
    Security Documents. For this purpose, each Bank is authorised to
    purchase with the moneys standing to the credit of such account
    such other currencies as may be necessary to effect such
    application.



 



    13.2.2 No Bank shall be obliged to exercise any right given
    to it by this clause 13.2. Each Bank shall notify the
    Borrowers through the Agent forthwith upon the exercise or
    purported exercise of any right of set off giving full details
    in relation thereto and the Agent shall inform the other Banks.



 



    13.2.3 Nothing in this clause 13.2 shall be effective
    to create a charge or other security interest.



 




    13.3  Pro
    rata payments



 



    13.3.1 If at any time any Lender (the “Recovering
    Lender”) receives or recovers any amount owing to it by
    the Borrowers under this Agreement (other than pursuant to any
    other Security Document) by direct payment, set-off or in any
    manner other than by payment through the Payment Agent pursuant
    to clauses 6.1 or 6.9 (not being a payment received from a
    Transferee Bank or a
    sub-participant
    in such Lender’s Contribution or any other payment of an
    amount due to the Recovering Lender for its sole account
    pursuant to clauses 3.6, 5, 6.6, 11.1, 11.2, 11.3, 12.1, or
    12.2), the Recovering Lender shall, within two (2) Banking
    Days of such receipt or recovery (a “Relevant
    Receipt”) notify the Payment Agent of the amount of the
    Relevant Receipt. If the Relevant Receipt exceeds the amount
    which the Recovering Lender would have received if the Relevant
    Receipt had been received by the Payment Agent and distributed
    pursuant to clause 6.1 or 6.10 (as the case may be) then:



 



    (a) within two (2) Banking Days of demand by the
    Payment Agent, the Recovering Lender shall pay to the Payment
    Agent an amount equal (or equivalent) to the excess;















Table of Contents







    (b) the Payment Agent shall treat the excess amount so paid
    by the Recovering Lender as if it were a payment made by the
    Borrowers and shall distribute the same to the Lenders (other
    than the Recovering Lenders) in accordance with
    clause 6.10; and



 



    (c) as between the Borrowers and the Recovering Lender the
    excess amount so re-distributed shall be treated as not having
    been paid but the obligations of the Borrowers to the other
    Lenders shall, to the extent of the amount so re-distributed to
    them, be treated as discharged.



 



    13.3.2 If any part of the Relevant Receipt subsequently has
    to be wholly or partly refunded by the Recovering Lender
    (whether to a liquidator or otherwise) each Lender to which any
    part of such Relevant Receipt was so re-distributed shall on
    request from the Recovering Lender repay to the Recovering
    Lender such Lender’s pro-rata share of the amount which has
    to be refunded by the Recovering Lender.



 



    13.3.3 Each Lender shall on request supply to the Agent
    such information as the Agent may from time to time request for
    the purposes of this clause 13.3.



 



    13.3.4 Notwithstanding the foregoing provisions of this
    clause 13.3, no Recovering Lender shall be obliged to share
    any Relevant Receipt which it receives or recovers pursuant to
    Proceedings taken by it to recover any sums owing to it under
    this Agreement with any other party which has a legal right to,
    but does not, either join in such Proceedings or commence and
    diligently pursue separate Proceedings to enforce its rights in
    the same or another court (unless the Proceedings instituted by
    the Recovering Lender are instituted by it without prior notice
    having been given to such party through the Agent).



 




    13.4  No
    release



 



    For the avoidance of doubt it is hereby declared that failure by
    any Recovering Lender to comply with the provisions of
    clause 13.3 shall not release any other Recovering Lender
    from any of its obligations or liabilities under
    clause 13.3.



 




    13.5  No
    charge



 



    The provisions of this clause 13 shall not, and shall not
    be construed so as to, constitute a charge or create or declare
    a trust by a Lender over all or any part of a sum received or
    recovered by it in the circumstances mentioned in
    clause 13.3.



 




    13.6  Further
    assurance



 



    Each Borrower undertakes with each Bank that the Security
    Documents shall both at the date of execution and delivery
    thereof and throughout the Facility Period be valid and binding
    obligations of the respective parties thereto which, with the
    rights of each Lender thereunder, are enforceable in accordance
    with their respective terms and that they will, at their
    expense, execute, sign, perfect and do, and will procure the
    execution, signing, perfecting and doing by each of the other
    Security Parties of, any and every such further assurance,
    document, act or thing as in the reasonable opinion of the
    Majority Lenders may be necessary or desirable for perfecting
    the security contemplated or constituted by the Security
    Documents.



 




    13.7  Conflicts



 



    In the event of any conflict between this Agreement and any of
    the other Security Documents, the provisions of this Agreement
    shall prevail.



 




    13.8  No
    implied waivers, remedies cumulative



 



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















Table of Contents








    13.9  Severability



 



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



 




    13.10  Force
    Majeure



 



    Regardless of any other provision of this Agreement, none of the
    Banks shall be liable for any failure to perform the whole or
    any part of this Agreement resulting directly or indirectly from
    (i) the action or inaction or purported action of any
    governmental or local authority (ii) any strike, lockout,
    boycott or blockade (including any strike, lockout, boycott or
    blockade effected by or upon any Bank or any of its
    representatives or employees) (iii) any act of God
    (iv) any act of war (whether declared or not) or terrorism
    (v) any failure of any information technology or other
    operational systems or equipment affecting any Bank or
    (vi) any other circumstances whatsoever outside any
    Bank’s control.



 




    13.11  Amendments



 



    This Agreement may be amended or varied only by an instrument in
    writing executed by all parties hereto who irrevocably agree
    that the provisions of this clause 13.11 may not be waived
    or modified except by an instrument in writing to that effect
    signed by all of them.



 




    13.12  Counterparts



 



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



 




    13.13  English
    language



 



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



 




    14  ACCOUNTS
    AND RETENTIONS



 




    14.1  General



 



    Each Borrower undertakes with each Bank that it will ensure that:



 



    14.1.1 it will on or before the Delivery Date in respect of
    its Vessel, open an Earnings Account in its name; and



 



    14.1.2 all moneys payable to any Owner in respect of the
    Earnings (as defined in the relevant Mortgage) of its Vessel
    shall, unless and until the Agent (acting on the instructions of
    the Majority Lenders) directs to the contrary pursuant to the
    provisions of the relevant Mortgage, be paid to the Earnings
    Account, Provided however that if any of the moneys paid to any
    Earnings Account are payable in a currency other than USD, they
    shall be paid to a
    sub-account
    of that Earnings Account denominated in such currency (except
    that if the Shareholder fails to open such a
    sub-account,
    the Account Bank shall then convert such moneys into USD at the
    Account Bank’s spot rate of exchange at the relevant time
    for the purchase of USD with such currency and the term
    “spot rate of exchange” shall include any premium and
    costs of exchange payable in connection with the purchase of USD
    with such currency).



 




    14.2  Earnings
    Accounts: withdrawals



 



    Any sums standing to the credit of the Earnings Accounts may be
    applied from time to time (i) firstly to make the payments
    required under this Agreement, (ii) secondly, subject to
    there being no breach of
















Table of Contents







    Clause 14.3 and to no Event of Default having occurred, in
    the operation of the Mortgaged Vessels and (iii) subject to
    there being at any time sufficient funds to pay amounts due
    under (i) and (ii) above as they fall due, thirdly for
    the general corporate purposes of the Borrowers.



 




    14.3  Retention
    Account: credits and withdrawals



 



    14.3.1 The Borrowers undertake with each Bank that,
    throughout the Facility Period, they will procure that, on each
    Retention Date there is paid (whether from the Earnings Accounts
    or elsewhere) to the Retention Account, the Retention Amount for
    such date.



 



    14.3.2 Unless and until there shall occur an Event of
    Default (whereupon the provisions of clause 14.5 shall
    apply), all Retention Amounts credited to the Retention Account
    together with interest from time to time accruing or at any time
    accrued thereon must be applied by the Account Bank (and the
    Borrowers hereby irrevocably authorise the Account Bank so to
    apply the same) upon each Repayment Date
    and/or on
    each day that interest is payable on the Loan or a Tranche
    pursuant to clause 3.1, in or towards payment to the
    Payment Agent of the instalment then falling due for repayment
    or, as the case may be, the amount of interest then due. Each
    such application by the Account Bank shall constitute a payment
    in or towards satisfaction of the Borrowers’ corresponding
    payment obligations under this Agreement but shall be strictly
    without prejudice to the obligations of the Borrowers to make
    any such payment to the extent that the aforesaid application by
    the Account Bank is insufficient to meet the same.



 



    14.3.3 Unless the Agent (acting on the instructions of the
    Majority Banks) otherwise agrees in writing and subject to this
    clause 14.3.2, Borrowers shall not be entitled to withdraw
    any moneys from the Retention Account at any time during the
    Facility Period



 




    14.4  Application
    of accounts



 



    At any time after the occurrence of an Event of Default, the
    Payment Agent may (and on the instructions of the Majority
    Lenders shall), without notice to the Borrowers, instruct the
    Account Bank to apply all moneys then standing to the credit of
    the Earnings Accounts
    and/or the
    Retention Account
    and/or the
    Equity Deposit Account (together with interest from time to time
    accruing or accrued thereon) in or towards satisfaction of any
    sums due to the Banks or any of them under the Security
    Documents in the manner specified in clause 13.1.



 




    14.5  Charging
    of accounts



 



    The Earnings Accounts and the Retention Account and all amounts
    from time to time standing to the credit thereof shall be
    subject to the security constituted and the rights conferred by
    the Earnings Account Pledges and the Retention Account Pledge
    respectively.



 




    14.6  Equity
    Deposit Account



 



    The credit balance on the Equity Deposit Account shall at no
    time be less than the difference between (i) the aggregate
    of unpaid instalments under the Shipbuilding Contracts and
    (ii) the aggregate of the undrawn Commitments and the
    Borrowers may on each Drawdown Date apply sums from the Equity
    Deposit Account in payment of the balance (after taking into
    account the relevant Advance) of the instalment then payable to
    the Builder and the Borrowers hereby irrevocably authorise the
    Account Bank to refuse to make any payment from the Equity
    Deposit Account except to the Builder.



 




    15  ASSIGNMENT,
    TRANSFER AND LENDING OFFICE



 




    15.1  Benefit
    and burden



 



    This Agreement shall be binding upon, and enure for the benefit
    of, the Banks and the Borrowers and their respective successors
    in title.















Table of Contents








    15.2  No
    assignment by Borrowers



 


	 
	

    No Borrower may assign or transfer any of its rights or
    obligations under this Agreement.











 




    15.3  Transfers
    by Banks



 



    any Lender (the “Transferor Lender”) may at any
    time cause all or any part of its rights, benefits
    and/or
    obligations under this Agreement and the other Security
    Documents to be transferred to another first class international
    bank or financial institution or other person (in either case a
    “Transferee Lender”) (i) if such transfer
    is to another branch, a subsidiary or affiliate of such Lender
    and (ii) otherwise reasonably acceptable to the Borrowers,
    in each case by delivering to the Agent a Transfer Certificate
    duly completed and duly executed by the Transferor Lender and
    the Transferee Lender. No such transfer is binding on, or
    effective in relation to, the Borrowers or the Agent unless
    (i) it is effected or evidenced by a Transfer Certificate
    which complies with the provisions of this clause 15.3 and
    is signed by or on behalf of the Transferor Lender, the
    Transferee Lender and the Agent (on behalf of itself, the
    Borrowers and the other Banks) and (ii) such transfer of
    rights under the other Security Documents has been effected and
    registered. Upon signature of any such Transfer Certificate by
    the Agent, which signature shall be effected as promptly as is
    practicable after such Transfer Certificate has been delivered
    to the Agent, and subject to the terms of such Transfer
    Certificate, such Transfer Certificate shall have effect as set
    out below.



 



    The following further provisions shall have effect in relation
    to any Transfer Certificate:



 



    15.3.1 a Transfer Certificate may be in respect of a
    Lender’s rights in respect of all, or part of, its
    Commitment and shall be in respect of the same proportion of its
    Contribution;



 



    15.3.2 a Transfer Certificate shall only be in respect of
    rights and obligations of the Transferor Lender in its capacity
    as a Lender and shall not transfer its rights and obligations
    (if applicable) as the Payment Agent and/or the Agent
    and/or the
    Security Trustee, or in any other capacity, as the case may be
    and such other rights and obligations may only be transferred in
    accordance with any applicable provisions of this Agreement;



 



    15.3.3 a Transfer Certificate shall take effect in
    accordance with English law as follows:



 



    (a) to the extent specified in the Transfer Certificate,
    the Transferor Lender’s payment rights and all its other
    rights (other than those referred to in clause 15.3.2
    above) under this Agreement are assigned to the Transferee
    Lender absolutely, free of any defects in the Transferor
    Lender’s title and of any rights or equities which the
    Borrowers had against the Transferor Lender and the Transferee
    Lender assumes all obligations of the Transferor Lender as are
    transferred by such Transfer Certificate;



 



    (b) the Transferor Lender’s Commitment is discharged
    to the extent specified in the Transfer Certificate;



 



    (c) the Transferee Lender becomes a Lender with a
    Contribution
    and/or a
    Commitment in respect of the Loan Facility of the amounts
    specified in the Transfer Certificate;



 



    (d) the Transferee Lender becomes bound by all the
    provisions of this Agreement and the Security 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 Payment Agent and the Agent and
    the Security Trustee and to the extent that the Transferee
    Lender becomes bound by those provisions, the Transferor Lender
    ceases to be bound by them;



 



    (e) an Advance or part of an Advance which the Transferee
    Lender makes after the Transfer Certificate comes into effect
    ranks in point of priority and security in the same way as it
    would have ranked had it been made by the Transferor Lender,
    assuming that any defects in the Transferor Lender’s title
    and any rights or equities of any Security Party against the
    Transferor Lender had not existed; and



 



    (f) the Transferee Lender becomes entitled to all the
    rights under this Agreement which are applicable to the Lenders
    generally, including but not limited to those relating to the
    Majority Lenders
















Table of Contents







    and those under clauses 3.6, 5 and 12 and to the extent
    that the Transferee Lender becomes entitled to such rights, the
    Transferor Lender ceases to be entitled to them;



 



    15.3.4 the rights and equities of the Borrowers or of any
    other Security Party referred to above include, but are not
    limited to, any right of set-off and any other kind of
    cross-claim; and



 



    15.3.5 the Borrowers, the Account Bank, the Security
    Trustee, the Payment Agent and the Lenders hereby irrevocably
    authorise and instruct the Agent to sign any such Transfer
    Certificate on their behalf and undertake not to withdraw,
    revoke or qualify such authority or instruction at any time.
    Promptly upon its signature of any Transfer Certificate, the
    Agent shall notify the Borrowers, the Transferor Lender and the
    Transferee Lender.



 




    15.4  Reliance
    on Transfer Certificate



 



    15.4.1 The Agent shall be entitled to rely on any Transfer
    Certificate believed by it to be genuine and correct and to have
    been presented or signed by the persons by whom it purports to
    have been presented or signed, and shall not be liable to any of
    the parties to this Agreement and the Security Documents for the
    consequences of such reliance.



 



    15.4.2 The Payment Agent shall at all times during the
    continuation of this Agreement maintain a register in which it
    shall record the name, Commitments, Contributions and
    administrative details (including the lending office) from time
    to time of the Lenders holding a Transfer Certificate and the
    date at which the transfer referred to in such Transfer
    Certificate held by each Lender was transferred to such Lender,
    and the Payment Agent shall make the said register available for
    inspection by any Lender or the Borrowers during normal banking
    hours upon receipt by the Payment Agent of reasonable prior
    notice requesting the Payment Agent to do so.



 



    15.4.3 The entries on the said register shall, in the
    absence of manifest error, be conclusive in determining the
    identities of the Commitments, the Contributions and the
    Transfer Certificates held by the Lenders from time to time and
    the principal amounts of such Transfer Certificates and may be
    relied upon by all parties to this Agreement.



 




    15.5  Transfer
    fees and expenses



 



    Any Transferor Lender who causes the transfer of all or any part
    of its rights, benefits
    and/or
    obligations under the Security Documents in accordance with the
    foregoing provisions of this clause 15, must, on each
    occasion, pay to the Agent a transfer fee of one thousand five
    hundred Dollars (USD 1,500) and, in addition, be responsible for
    all other costs and expenses (including, but not limited to,
    reasonable legal fees and expenses) associated therewith and all
    value added tax thereon, as well as those of the Agent (in
    addition to its fee as aforesaid) in connection with such
    transfer.



 




    15.6  Documenting
    transfers



 



    If any Lender assigns all or any part of its rights or transfers
    all or any part of its rights, benefits
    and/or
    obligations as provided in clause 15.3, each Borrower
    undertakes, immediately on being requested to do so by the Agent
    and at the cost of the Transferor Lender, to enter into, and
    procure that the other Security Parties shall (at the cost of
    the Transferor Lender) enter into, such documents as may be
    necessary or desirable to transfer to the Transferee Lender all
    or the relevant part of such Lender’s interest in the
    Security Documents and all relevant references in this Agreement
    to such Lender shall thereafter be construed as a reference to
    the Transferor Lender
    and/or its
    Transferee Lender (as the case may be) to the extent of their
    respective interests.



 




    15.7  Sub-Participation



 



    A Lender may
    sub-participate
    all or any part of its rights
    and/or
    obligations under the Security Documents at its own expense
    without the consent of, or notice to, the Borrowers.















Table of Contents








    15.8  Lending
    office



 



    Each Lender shall lend through its office at the address
    specified in schedule 1 or, as the case may be, in any
    relevant Transfer Certificate or through any other office of
    such Lender selected from time to time by it through which such
    Lender wishes to lend for the purposes of this Agreement. If the
    office through which a Lender is lending is changed pursuant to
    this clause 15.8, such Lender shall notify the Agent
    promptly of such change and the Agent shall notify the
    Borrowers, the Security Trustee, the Payment Agent, the Account
    Bank and the other Lenders.



 




    15.9  Disclosure
    of information



 



    A Bank may disclose to any of its branches and affiliates, its
    head office, any relevant fiscal authorities. a prospective
    assignee, transferee or to any other person who may propose
    entering into contractual relations with such Bank in relation
    to this Agreement
    and/or the
    Master Agreement such information about the Borrowers
    and/or the
    other Security Parties
    and/or the
    Loan and/or
    the Security Documents as such Bank shall consider appropriate
    in relation to any transfer
    and/or
    enforcement hereunder.



 




    16  ARRANGER,
    AGENT AND SECURITY TRUSTEE



 




    16.1  Appointment
    of the Agent



 



    The Swap Bank and each Lender irrevocably appoints the Agent and
    the Payment Agent as its agent and payment agent, respectively,
    for the purposes of this Agreement and such of the Security
    Documents to which it may be appropriate for the Agent to be
    party. Accordingly each of the Lenders and the Swap Bank hereby
    authorise the Agent and the Payment Agent:



 



    16.1.1 to execute such documents as may be approved by the
    Majority Lenders for execution by the Agent and/or (as the case
    may be) the Payment Agent; and



 



    16.1.2 (whether or not by or through employees or agents)
    to take such action on such Lender’s behalf and to exercise
    such rights, remedies, powers and discretions as are
    specifically delegated to the Agent and/or the Payment Agent by
    any Security Document, together with such powers and discretions
    as are reasonably incidental thereto.



 




    16.2  Payment
    Agent’s/Agent’s actions



 



    Any action taken by the Agent or the Payment Agent under or in
    relation to any of the Security Documents whether with requisite
    authority or on the basis of appropriate instructions received
    from the Majority Lenders (or as otherwise duly authorised)
    shall be binding on all the Banks.



 




    16.3  Agent’s
    and Payment Agent’s duties



 



    16.3.1 The Agent and the Payment Agent shall promptly
    notify each Lender of the contents of each notice, certificate
    or other document received by it from the Borrowers under or
    pursuant to clauses 8.1.1, 8.1.6, 8.1.9, 8.1.10, 8.1.13 and
    8.1.17; and



 



    16.3.2 The Agent shall (subject to the other provisions of
    this clause 16) take (or instruct the Security Trustee
    to take) such action or, as the case may be, refrain from taking
    (or authorise the Security Trustee to refrain from taking) such
    action with respect to the exercise of any of its rights,
    remedies, powers and discretions as agent, as the Majority
    Lenders may direct.



 




    16.4  Security
    Trustee’s, Payment Agent’s and Agent’s
    rights



 



    The Security Trustee, Payment Agent’s and the Agent may:



 



    16.4.1 in the exercise of any right, remedy, power or
    discretion in relation to any matter, or in any context, not
    expressly provided for by this Agreement or any of the other
    Security Documents, act or, as the
















Table of Contents







    case may be, refrain from acting (or authorise the Security
    Trustee to act or refrain from acting) in accordance with the
    instructions of the Lenders, and shall be fully protected in so
    doing;



 



    16.4.2 unless and until it has received directions from the
    Majority Lenders, take such action or, as the case may be,
    refrain from taking such action (or authorise the Security
    Trustee to take or refrain from taking such action) in respect
    of a Default of which the Agent and/or the Payment Agent has
    actual knowledge as it shall consider advisable in the best
    interests of the Lenders (but shall not be obliged to do so);



 



    16.4.3 refrain from acting (or authorise the Security
    Trustee to refrain from acting) in accordance with any
    instructions of the Lenders to institute any Proceedings arising
    out of or in connection with any of the Security Documents until
    it and/or
    the Security Trustee has been indemnified
    and/or
    secured to its satisfaction against any and all costs, expenses
    or liabilities (including legal fees) which it would or might
    incur as a result;



 



    16.4.4 deem and treat (i) each Lender as the person
    entitled to the benefit of the Contribution of such Lender for
    all purposes of this Agreement unless and until a notice shall
    have been filed with the Agent pursuant to clause 15.3 and
    shall have become effective, and (ii) the office set
    opposite the name of each of the Lenders in schedule 1 as
    its lending office unless and until a written notice of change
    of lending office shall have been received by the Agent and the
    Agent may act upon any such notice unless and until the same is
    superseded by a further such notice;



 



    16.4.5 rely as to matters of fact which might reasonably be
    expected to be within the knowledge of any Security Party upon a
    certificate signed by any director or officer of the relevant
    Security Party on behalf of the relevant Security Party; and



 



    16.4.6 do anything which is in its opinion necessary or
    desirable to comply with any law or regulation in any
    jurisdiction.



 




    16.5  No
    Liability of Agent or Arranger or Payment Agent



 



    None of the Security Trustee, the Agent, the Payment Agent the
    Arranger nor any of their respective employees and agents shall:



 



    16.5.1 be obliged to make any enquiry as to the use of any
    of the proceeds of the Loan unless (in the case of the Agent) so
    required in writing by a Lender, in which case the Agent shall
    promptly make the appropriate request to the Borrowers; or



 



    16.5.2 be obliged to make any enquiry as to any breach or
    default by the Borrowers or any other Security Party in the
    performance or observance of any of the provisions of the
    Security Documents or as to the existence of a Default unless
    (in the case of the Agent) the Agent has actual knowledge
    thereof or has been notified in writing thereof by a Bank, in
    which case the Agent shall promptly notify the Banks of the
    relevant event or circumstance; or



 



    16.5.3 be obliged to enquire whether or not any
    representation or warranty made by the Borrowers or any other
    Security Party pursuant to this Agreement or any of the other
    Security Documents is true; or



 



    16.5.4 be obliged to do anything (including, without
    limitation, disclosing any document or information) which would,
    or might in its opinion, be contrary to any law or regulation or
    be a breach of any duty of confidentiality or otherwise be
    actionable or render it liable to any person; or



 



    16.5.5 be obliged to account to any Lender for any sum or
    the profit element of any sum received by it for its own
    account; or



 



    16.5.6 be obliged to institute any Proceedings arising out
    of or in connection with any of the Security Documents other
    than on the instructions of the Majority Lenders; or



 



    16.5.7 be liable to any Lender for any action taken or
    omitted under or in connection with any of the Security
    Documents unless caused by its gross negligence or wilful
    misconduct.















Table of Contents







    For the purposes of this clause 16, none of the Security
    Trustee, the Arranger the Payment Agent or the Agent shall be
    treated as having actual knowledge of any matter of which the
    corporate finance or any other division outside the agency or
    loan administration department of the Arranger, the Security
    Trustee the Payment Agent or the Agent or the person for the
    time being acting as the Arranger, the Security Trustee Payment
    Agent or the Agent may become aware in the context of corporate
    finance, advisory or lending activities from time to time
    undertaken by the Arranger, the Security Trustee or the Agent
    or, as the case may be, the Security Trustee or Agent for any
    Security Party or any other person which may be a trade
    competitor of any Security Party or may otherwise have
    commercial interests similar to those of any Security Party.



 




    16.6  Non —
    reliance on Arranger, Security Trustee, Agent or Payment
    Agent



 



    Each Lender and the Swap Bank acknowledges that it has not
    relied on any statement, opinion, forecast or other
    representation made by the Arranger, the Security Trustee, the
    Payment Agent or the Agent to induce it to enter into any of the
    Security Documents and that it has made and will continue to
    make, without reliance on the Arranger, the Security Trustee,
    the Payment Agent or the Agent and based on such documents as it
    considers appropriate, its own appraisal of the creditworthiness
    of the Security Parties and its own independent investigation of
    the financial condition, prospects and affairs of the Security
    Parties in connection with the making and continuation of such
    Lender’s Commitment or Contribution under this Agreement.
    None of the Arranger, the Security Trustee, the Payment Agent
    and the Agent shall have any duty or responsibility, either
    initially or on a continuing basis, to provide any Lender or the
    Swap Bank with any credit or other information with respect to
    any Security Party whether coming into its possession before the
    making of any Advance or the Loan or at any time or times
    thereafter other than as provided in clause 16.3.1.



 




    16.7  No
    responsibility on the Arranger, the Security Trustee, Agent or
    Payment Agent for Borrowers’ performance



 



    None of the Arranger, the Security Trustee, the Payment Agent or
    the Agent shall have any responsibility or liability to any
    Lender or the Swap Bank:



 



    16.7.1 on account of the failure of any Security Party to
    perform its obligations under any of the Security
    Documents; or



 



    16.7.2 for the financial condition of any Security
    Party; or



 



    16.7.3 for the completeness or accuracy of any statements,
    representations or warranties in any of the Security Documents
    or any document delivered under any of the Security
    Documents; or



 



    16.7.4 for the execution, effectiveness, adequacy,
    genuineness, validity, enforceability or admissibility in
    evidence of any of the Security Documents or of any certificate,
    report or other document executed or delivered under any of the
    Security Documents; or



 



    16.7.5 to investigate or make any enquiry into the title of
    the Borrowers or any other Security Party to the Vessels or any
    other security or any part thereof; or



 



    16.7.6 for the failure to register any of the Security
    Documents with any official or regulatory body or office or
    elsewhere; or



 



    16.7.7 for taking or omitting to take any other action
    under or in relation to any of the Security Documents or any
    aspect of any of the Security Documents; or



 



    16.7.8 on account of the failure of the Security Trustee to
    perform or discharge any of its duties or obligations under the
    Security Documents; or



 



    16.7.9 otherwise in connection with the Security Documents
    or their negotiation or for acting (or, as the case may be,
    refraining from acting) in accordance with the instructions of
    the Lenders.















Table of Contents








    16.8  Reliance
    on documents and professional advice



 



    Each of the Arranger, the Security Trustee, the Payment Agent
    and the Agent shall be entitled to rely on any communication,
    instrument or document believed by it to be genuine and correct
    and to have been signed or sent by the proper person and shall
    be entitled to rely as to legal or other professional matters on
    opinions and statements of any legal or other professional
    advisers selected or approved by it (including those in the
    Arranger’s, the Security Trustee’s, the Payment Agent
    or Agent’s employment).



 




    16.9  Other
    dealings



 



    Each of the Arranger, the Security Trustee, the Payment Agent
    and the Agent may, without any liability to account to the
    Lenders, accept deposits from, lend money to, and generally
    engage in any kind of banking or other business with, and
    provide advisory or other services to, any Security Party or any
    company in the same group of companies as such Security Party or
    any of the Lenders as if it were not the Arranger, the Security
    Trustee, the Payment Agent or the Agent.



 




    16.10  Rights
    of Agent, Payment Agent as Lender; no partnership



 



    With respect to its own Commitment and Contribution (if any) the
    Security Trustee, the Payment Agent and the Agent shall have the
    same rights and powers under the Security Documents as any other
    Lender and may exercise the same as though it were not
    performing the duties and functions delegated to it under this
    Agreement and the term “Lenders” shall, unless the
    context clearly otherwise indicates, include the Security
    Trustee, the Payment Agent and the Agent in their respective
    individual capacity as a Lender. This Agreement shall not be
    construed so as to constitute a partnership between the parties
    or any of them.



 




    16.11  Amendments
    and waivers



 



    16.11.1 Subject to clause 16.11, the Arranger, the
    Security Trustee, the Payment Agent
    and/or the
    Agent (as the case may be) may, with the consent of the Majority
    Lenders (or if and to the extent expressly authorised by the
    other provisions of any of the Security Documents) and, if so
    instructed by the Majority Lenders, shall:



 



    16.11.2 agree (or authorise the Security Trustee to agree)
    amendments or modifications to any of the Security Documents
    with the Borrowers
    and/or any
    other Security Party; and/or



 



    16.11.3 vary or waive breaches of, or defaults under, or
    otherwise excuse performance of, any provision of any of the
    other Security Documents by the Borrowers
    and/or any
    other Security Party (or authorise the Security Trustee to do
    so).



 



    Any such action so authorised and effected by the Agent shall be
    documented in such manner as the Security Trustee
    and/or the
    Payment Agent and/or the Agent (as the case may be) shall (with
    the approval of the Majority Lenders) determine, shall be
    promptly notified to the Lenders by the Security Trustee
    and/or the
    Payment Agent and/or the Agent (as the case may be) and (without
    prejudice to the generality of clause 16.2) shall be
    binding on the Lenders.



 



    16.11.4 Except with the prior written consent of the
    Lenders, the Security Trustee, the Payment Agent and the Agent
    shall have no authority on behalf of the Lenders to agree (or
    authorise the Security Trustee to agree) with the Borrowers
    and/or any
    other Security Party any amendment or modification to any of the
    Security Documents or to grant (or authorise the Security
    Trustee to grant) waivers in respect of breaches or defaults or
    to vary or excuse (or authorise the Security Trustee to vary or
    excuse) performance of or under any of the Security Documents by
    the Borrowers
    and/or any
    other Security Party, if the effect of such amendment,
    modification, waiver or excuse would be to:



 



    (a) reduce the Margin, postpone the due date or reduce the
    amount of any payment of principal, interest or other amount
    payable by any Security Party under any of the Security
    Documents;



 



    (b) change the currency in which any amount is payable by
    any Security Party under any of the Security Documents;
















Table of Contents







    (c) increase any Lender’s Commitment;



 



    (d) extend any Maturity Date;



 



    (e) change any provision of any of the Security Documents
    which expressly or impliedly requires the approval or consent of
    all the Lenders such that the relevant approval or consent may
    be given otherwise than with the sanction of all the Lenders;



 



    (f) change the order of distribution under
    clauses 6.10 and 13.1;



 



    (g) change this clause 16.11;



 



    (h) change the definition of “Majority
    Lenders” in clause 1.2;



 



    (i) release any Security Party from the security
    constituted by any Security Document (except as required by the
    terms thereof or by law) or change the terms and conditions upon
    which such security or guarantee may be, or is required to be,
    released.



 




    16.12  Reimbursement
    and indemnity by Lenders



 



    Each Lender shall reimburse the Security Trustee, the Payment
    Agent and the Agent (rateably in accordance with such
    Lender’s Commitment or, after the first Advance or the Loan
    has been drawn, its Contribution,) to the extent that the
    Security Trustee, the Payment Agent or the Agent is not
    reimbursed by the Borrowers, for the costs, charges and expenses
    incurred by the Security Trustee, the Payment Agent or the Agent
    which are expressed to be payable by the Borrowers under
    clause 5.3 including (in each case), without limitation,
    the fees and expenses of legal or other professional advisers
    provided that, if following any payment to the Security Trustee,
    the Payment Agent or the Agent by a Lender under this clause the
    Security Trustee, the Payment Agent or the Agent receives
    payment from the Borrowers in respect of the same costs, fees or
    expenses, the Security Trustee or the Agent shall upon receipt
    thereof reimburse the relevant Lender. Each Lender must on
    demand indemnify the Security Trustee, the Payment Agent or the
    Agent (rateably in accordance with such Lender’s Commitment
    or, after the first Advance or the Loan has been drawn, its
    Contribution) against all liabilities, damages, costs and claims
    whatsoever incurred by the Security Trustee in connection with
    any of the Security Documents or the performance of its duties
    under any of the Security Documents or any action taken or
    omitted by the Security Trustee or, as the case may be, the
    Payment Agent or the Agent, under any of the Security Documents,
    unless such liabilities, damages, costs or claims arise from the
    Security Trustee’s or as the case may be, the Payment
    Agent’s or the Agent’s own gross negligence or wilful
    misconduct.



 




    16.13  Retirement
    of the Security Trustee /Agent Payment Agent



 



    16.13.1 The Agent and the Payment Agent may, having given
    to the Borrowers and each of the Lenders not less than fifteen
    (15) days’ notice of its intention to do so, retire
    from its appointment as the Security Trustee, the Payment Agent
    or the Agent (as the case may be) under this Agreement, provided
    that no such retirement shall take effect unless there has been
    appointed by the Lenders as a successor agent:



 



    (a) a company in the same group of companies as the
    Security Trustee or, as the case may be, the Payment Agent or
    the Agent nominated by the Security Trustee or, as the case may
    be, the Payment Agent or the Agent,



 



    (b) a Lender nominated by the Majority Lenders or, failing
    such a nomination,



 



    (c) any reputable and experienced bank or financial
    institution nominated by the retiring Payment Agent or the
    retiring Agent or, as the case may be, the retiring Security
    Trustee.



 



    Any corporation into which the retiring Agent
    and/or the
    retiring Payment Agent and/or the retiring Security Trustee (as
    the case may be) may be merged or converted or any corporation
    with which the Security Trustee and/or the Payment Agent
    and/or the
    Agent (as the case may be) may be consolidated or any
    corporation resulting from any merger, conversion, amalgamation,
    consolidation or other reorganisation to which the Security
    Trustee or the Payment Agent or the Agent (as the case may be)
    shall be a party shall, to
















Table of Contents







    the extent permitted by applicable law, be the successor Agent
    or Security Trustee under this Agreement and the other Security
    Documents without the execution or filing of any document or any
    further act on the part of any of the parties to the Security
    Documents save that notice of any such merger, conversion,
    amalgamation, consolidation or other reorganisation shall
    forthwith be given to each Security Party and the Lenders. Prior
    to any such successor being appointed, the Agent agrees to
    consult with the Borrowers and the Lenders as to the identity of
    the proposed successor and to take account of any reasonable
    objections which the Borrowers and the Lenders may raise to such
    successor being appointed.



 



    16.13.2 If the Majority Lenders, acting reasonably, are of
    the opinion that the Security Trustee or Payment Agent or Agent
    is unable to fulfil its respective obligations under this
    Agreement in a professional and acceptable manner, then they may
    require the Security Trustee or Payment Agent or Agent, by
    written notice, to resign in accordance with
    clause 16.13.1, which the Agent shall promptly do, and the
    terms of clause 16.13.1 shall apply to the appointment of
    any substitute Security Trustee or Payment Agent or Agent, save
    that the same shall be appointed by the Majority Lenders and not
    by all of the Lenders.



 



    16.13.3 Upon any such successor as aforesaid being
    appointed, the retiring Agent or, as the case may be, the
    Security Trustee or the Payment Agent shall be discharged from
    any further obligation under the Security Documents (but shall
    continue to have the benefit of this clause 16 in respect
    of any action it has taken or refrained from taking prior to
    such discharge) and its successor and each of the other parties
    to this Agreement shall have the same rights and obligations
    among themselves as they would have had if such successor had
    been a party to this Agreement in place of the retiring Agent or
    Payment Agent or Security Trustee. The retiring Agent or Payment
    Agent shall (at its own expense) provide its successor with
    copies of such of its records as its successor reasonably
    requires to carry out its functions under the Security Documents.



 




    16.14  Appointment
    and retirement of Security Trustee



 



    16.14.1 Appointment



 



    Each of the Lenders, the Swap Bank and the Agent irrevocably
    appoints the Security Trustee as its Security Trustee and
    trustee for the purposes of the Security Documents, in each case
    on the terms set out in this Agreement. Accordingly, each of the
    Lenders, the Swap Bank and the Agent hereby authorises the
    Security Trustee (whether or not by or through employees or
    agents) to take such action on its behalf and to exercise such
    rights, remedies, powers and discretions as are specifically
    delegated to the Security Trustee by this Agreement
    and/or the
    Security Documents, together with such powers and discretions as
    are reasonably incidental thereto.



 



    16.14.2 Retirement



 



    Without prejudice to clause 16.13, the Security Trustee
    may, having given to the Borrowers and each of the Lenders and
    the Swap Bank not less than fifteen (15) days’ notice
    of its intention to do so, retire from its appointment as
    Security Trustee under this Agreement and any Trust Deed,
    provided that no such retirement shall take effect unless there
    has been appointed by the Lenders and the Agent as a successor
    Security Trustee and trustee:



 



    (a) a company in the same group of companies of the
    Security Trustee nominated by the Security Trustee which the
    Lenders hereby irrevocably and unconditionally agree to appoint
    or, failing such nomination,



 



    (b) a Lender or trust corporation nominated by the Majority
    Lenders or, failing such a nomination,



 



    (c) any bank or trust corporation nominated by the retiring
    Security Trustee,



 



    and, in any case, such successor Security Trustee and trustee
    shall have duly accepted such appointment by delivering to the
    Agent (i) written confirmation (in a form acceptable to the
    Agent) of such acceptance agreeing to be bound by this Agreement
    in the capacity of Security Trustee as if it had been an
    original party to this Agreement and (ii) a duly executed
    Trust Deed.



 



    Any corporation into which the retiring Security Trustee may be
    merged or converted or any corporation with which the Security
    Trustee may be consolidated or any corporation resulting from
    any merger,
















Table of Contents







    conversion, amalgamation, consolidation or other reorganisation
    to which the Security Trustee shall be a party shall, to the
    extent permitted by applicable law, be the successor Security
    Trustee under this Agreement, any Trust Deed and the other
    Security Documents without the execution or filing of any
    document or any further act on the part of any of the parties to
    this Agreement, any Trust Deed and the other Security
    Documents save that notice of any such merger, conversion,
    amalgamation, consolidation or other reorganisation shall
    forthwith be given to each Security Party, the Swap Bank and the
    Lenders. Prior to any such successor being appointed, the
    Security Trustee agrees to consult with the Borrowers as to the
    identity of the proposed successor and to take account of any
    reasonable objections which the Borrowers may raise to such
    successor being appointed.



 



    Upon any such successor as aforesaid being appointed, the
    retiring Security Trustee shall be discharged from any further
    obligation under the Security Documents (but shall continue to
    have the benefit of this clause 16 in respect of any action
    it has taken or refrained from taking prior to such discharge)
    and its successor and each of the other parties to this
    Agreement shall have the same rights and obligations among
    themselves as they would have had if such successor had been a
    party to this Agreement in place of the retiring Security
    Trustee. The retiring Security Trustee shall (at its own
    expense) provide its successor with copies of such of its
    records as its successor reasonably requires to carry out its
    functions under the Security Documents.



 




    16.15  Powers
    and duties of the Security Trustee



 



    16.15.1 The Security Trustee shall have no duties,
    obligations or liabilities to any of the Lenders and the Agent
    beyond those expressly stated in any of the Security Documents.
    Each of the Agent and the Swap Bank, the Lenders hereby
    authorises the Security Trustee to enter into and execute:



 



    (a) each of the Security Documents to which the Security
    Trustee is or is intended to be a party; and



 



    (b) any and all such other Security Documents as may be
    approved by the Agent in writing (acting on the instructions of
    the Majority Lenders) for entry into by the Security Trustee,



 



    and, in each and every case, to hold any and all security
    thereby created upon trust for the Lenders, the Swap Bank and
    the Agent for the time being in the manner contemplated by this
    Agreement.



 



    16.15.2 Subject to clause 16.15.3 the Security Trustee
    may, with the prior consent of the Majority Lenders communicated
    in writing by the Agent, concur with any of the Security Parties
    to:



 



    (a) amend, modify or otherwise vary any provision of the
    Security Documents to which the Security Trustee is or is
    intended to be a party; or



 



    (b) waive breaches of, or defaults under, or otherwise
    excuse performance of, any provision of the Security Documents
    to which the Security Trustee is or is intended to be a
    party; or



 



    (c) give any consents to any Security Party in respect of
    any provision of any Security Document



 



    Any such action so authorised and effected by the Security
    Trustee shall be promptly notified to the Lenders, the Swap Bank
    and the Agent by the Security Trustee and shall be binding on
    the other Banks.



 



    16.15.3 The Security Trustee shall not concur with any
    Security Party with respect to any of the matters described in
    clause 16.11.4 without the consent of the Lenders
    communicated in writing by the Agent.



 



    16.15.4 The Security Trustee shall (subject to the other
    provisions of this clause 16) take such action or, as
    the case may be, refrain from taking such action, with respect
    to any of its rights, powers and discretions as Security Trustee
    and trustee, as the Agent may direct. Subject as provided in the
    foregoing provisions of this clause, unless and until the
    Security Trustee has received such instructions from the Agent,
    the Security Trustee may, but shall not be obliged to, take (or
    refrain from taking) such action under or pursuant to the
    Security Documents referred to in clause 16.14 as the
    Security Trustee shall deem advisable in the best interests of
    the Banks provided that (for the avoidance of doubt), to the
    extent that this clause might otherwise be construed as
    authorising the Security Trustee to take, or refrain from
    taking, any action of the nature referred to in
    clause 16.15.2 — and for which the prior consent
    of the Lenders is expressly required under
    clause 16.15.3 — clauses 16.15.2 and 16.15.3
    shall apply to the exclusion of this clause.














Table of Contents







    16.15.5 None of the Lenders, the Swap Bank nor the Agent
    shall have any independent power to enforce any of the Security
    Documents referred to in clause 16.14 or to exercise any
    rights, discretions or powers or to grant any consents or
    releases under or pursuant to such Security Documents or any of
    them or otherwise have direct recourse to the security
    and/or
    guarantees constituted by such Security Documents or any of them
    except through the Security Trustee.



 



    16.15.6 For the purpose of this clause 16, the
    Security Trustee may, rely and act in reliance upon any
    information from time to time furnished to the Security Trustee
    by the Agent (whether pursuant to clause 16.15.7 or
    otherwise) unless and until the same is superseded by further
    such information, so that the Security Trustee shall have no
    liability or responsibility to any party as a consequence of
    placing reliance on and acting in reliance upon any such
    information unless the Security Trustee has actual knowledge
    that such information is inaccurate or incorrect.



 



    16.15.7 Without prejudice to the foregoing each of the
    Agent, the Swap Bank and the Lenders (whether directly or
    through the Agent) shall provide the Security Trustee with such
    written information as it may reasonably require for the purpose
    of carrying out its duties and obligations under the Security
    Documents referred to in clause 16.14.



 




    16.16  Trust
    provisions



 



    16.16.1 The trusts constituted or evidenced in or by this
    Agreement and the Trust Deed shall remain in full force and
    effect until whichever is the earlier of:



 



    (a) the expiration of a period of eighty (80) years
    from the date of this Agreement; and



 



    (b) receipt by the Security Trustee of confirmation in
    writing by the Agent that there is no longer outstanding any
    Indebtedness (actual or contingent) which is secured or
    guaranteed or otherwise assured by or under any of the Security
    Documents,



 



    and the parties to this Agreement declare that the perpetuity
    period applicable to this Agreement and the trusts declared by
    the Trust Deed shall for the purposes of the Perpetuities
    and Accumulations Act 1964 be the period of eighty
    (80) years from the date of this Agreement.



 



    16.16.2 In its capacity as trustee in relation to the
    Security Documents specified in clause 16.14, the Security
    Trustee shall, without prejudice to any of the powers,
    discretions and immunities conferred upon trustees by law (and
    to the extent not inconsistent with the provisions of any of
    those Security Documents), have all the same powers and
    discretions as a natural person acting as the beneficial owner
    of such property
    and/or as
    are conferred upon the Security Trustee by any of those Security
    Documents.



 



    16.16.3 It is expressly declared that, in its capacity as
    trustee in relation to the Security Documents specified in
    clause 16.14, the Security Trustee shall be entitled to
    invest moneys forming part of the security and which, in the
    opinion of the Security Trustee, may not be paid out promptly
    following receipt in the name or under the control of the
    Security Trustee in any of the investments for the time being
    authorised by law for the investment by trustees of trust moneys
    or in any other property or investments whether similar to the
    aforesaid or not or by placing the same on deposit in the name
    or under the control of the Security Trustee as the Security
    Trustee may think fit without being under any duty to diversify
    its investments and the Security Trustee may at any time vary or
    transpose any such property or investments for or into any
    others of a like nature and shall not be responsible for any
    loss due to depreciation in value or otherwise of such property
    or investments. Any investment of any part or all of the
    security may, at the discretion of the Security Trustee, be made
    or retained in the names of nominees.



 




    16.17  Independent
    action by Banks



 



    None of the Banks shall enforce, exercise any rights, remedies
    or powers or grant any consents or releases under or pursuant
    to, or otherwise have a direct recourse to the security
    and/or
    guarantees constituted by any of the Security Documents without
    the prior written consent of the Majority Lenders but, provided
    such consent has been obtained, it shall not be necessary for
    any other Bank to be joined as an additional party in any
    Proceedings for this purpose.















Table of Contents








    16.18  Common
    Agent and Security Trustee



 



    The Agent and the Security Trustee have entered into the
    Security Documents in their separate capacities (a) as
    agent for the Lenders under and pursuant to this Agreement (in
    the case of the Agent) and (b) as Security Trustee and
    trustee for the Lenders, the Swap Bank and the Agent under and
    pursuant to this Agreement, to hold the guarantees
    and/or
    security created by the Security Documents specified in
    clause 16.14 on the terms set out in such Security
    Documents (in the case of the Security Trustee). If and when the
    Agent and the Security Trustee are the same entity and any
    Security Document provides for the Agent to communicate with or
    provide instructions to the Security Trustee (and vice versa),
    all parties to this Agreement agree that any such communications
    or instructions on such occasions are unnecessary and are hereby
    waived.



 




    16.19  Co-operation
    to achieve agreed priorities of application



 



    The Lenders and the Agent shall co-operate with each other and
    with the Security Trustee and any receiver under the Security
    Documents in realising the property and assets subject to the
    Security Documents and in ensuring that the net proceeds
    realised under the Security Documents after deduction of the
    expenses of realisation are applied in accordance with
    clause 13.1.



 




    16.20  The
    Prompt distribution of proceeds



 



    Moneys received by any of the Banks (whether from a receiver or
    otherwise) pursuant to the exercise of (or otherwise by virtue
    of the existence of) any rights and powers under or pursuant to
    any of the Security Documents shall (after providing for all
    costs, charges, expenses and liabilities and other payments
    ranking in priority) be paid to the Agent for distribution (in
    the case of moneys so received by any of the Banks other than
    the Agent or the Security Trustee) and shall be distributed by
    the Agent or, as the case may be, the Security Trustee (in the
    case of moneys so received by the Agent or, as the case may be,
    the Security Trustee) in each case in accordance with
    clause 13.1. The Agent or, as the case may be, the Security
    Trustee shall make each such application
    and/or
    distribution as soon as is practicable after the relevant moneys
    are received by, or otherwise become available to, the Agent or,
    as the case may be, the Security Trustee save that (without
    prejudice to any other provision contained in any of the
    Security Documents) the Agent or, as the case may be, the
    Security Trustee (acting on the instructions of the Majority
    Lenders) or any receiver may credit any moneys received by it to
    a suspense account for so long and in such manner as the Agent
    or such receiver may from time to time determine with a view to
    preserving the rights of the Agent
    and/or the
    Security Trustee
    and/or the
    Account Bank
    and/or the
    Arranger
    and/or the
    Lenders, the Swap Bank or any of them to provide for the whole
    of their respective claims against the Borrowers or any other
    person liable.



 




    16.21  Reconventioning



 



    After consultation with the Borrowers and the Lenders and
    notwithstanding clause 16.11, the Agent shall be entitled
    to make such amendments to this Agreement as it may determine to
    be necessary to take account of any changes in market practices
    as a consequence of the European Monetary Union (whether as to
    the settlement or rounding of obligations, business days, the
    calculation of interest or otherwise whatsoever). So far as
    possible such amendments shall be such as to put the parties in
    the same position as if the event or events giving rise to the
    need to amend this Agreement had not occurred. Any amendment so
    made to this Agreement by the Agent shall be promptly notified
    to the other parties hereto and shall be binding on all parties
    hereto.



 




    16.22  Exclusivity



 



    Without prejudice to the Borrowers’ rights, in certain
    instances, to give their consent thereunder, clauses 15 and
    16 are for the exclusive benefit of the Banks.















Table of Contents








    17  NOTICES
    AND OTHER MATTERS



 




    17.1  Notices



 



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



 



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



 




    17.2  Addresses
    for communications, effective date of notices



 



    17.2.1 Subject to clause 17.2.2, clause 17.2.5
    and 17.3 notices to the Borrowers shall be deemed to have been
    given and shall take effect when received in full legible form
    by the Borrowers at the address
    and/or the
    fax number appearing below (or at such other address or fax
    number as the Borrowers may hereafter specify for such purpose
    to the Agent by notice in writing);



 


			
	 	    Address  
	
    c/o Navios
    ShipManagement Inc.





    85 Akti Miaouli




    Piraeus




    Greece




    Fax no: + 30 210 453 2070



 



    17.2.2 notwithstanding the provisions of clause 17.2.1
    or clause 17.2.5, a notice of Default and/or a notice given
    pursuant to clause 10.2 or clause 10.3 to the
    Borrowers shall be deemed to have been given and shall take
    effect when delivered, sent or transmitted by the Banks or any
    of them to the Borrowers to the address or fax number referred
    to in clause 17.2.1;



 



    17.2.3 subject to clause 17.2.5, notices to Payment
    Agent and/or the Agent and/or the Security Trustee and/or
    Account Bank and/or Security Trustee and/or the Swap Bank shall
    be deemed to be given, and shall take effect, when received in
    full legible form by the Payment Agent and/or Agent and/or the
    Security Trustee at the address and/or the fax number address
    appearing below (or at any such other address or fax number as
    the Payment Agent and/or Agent and/or the Security Trustee (as
    appropriate) may hereafter specify for such purpose to the
    Borrowers and the other Lenders by notice in writing);



 


			
	 	    Address:     
	
    DVB Bank AG





    2-14 Friedrich-Ebert-Anlage




    60325 Frankfurt-Am-Main




    Germany



 


			
	 	    Attn:         
	
    Loan Administration Dept.




			
	 	    Fax no:     
	
    +4969 97504 526




 


			
	 	    with a copy to:     
	
    DVB Bank AG





    95 Akti Miaouli




    Piraeus 185 38




    Greece



 


			
	 	    Attn:       
	
    Loans Administration

	 	    Fax no:     
	
    +30210 429 1284




 



    Payment Agent:



 


			
	 	    Address:     
	
    Fortis Bank





    Vas Sofias 94& Kerasountos 1















Table of Contents







    115 28 Athens, Greece



 



    Fax:



 



    Attn:      Yiannis
    Karamanolis/Domna Dimitriadou



 



    17.2.4 subject to clause 17.2.5 and 17.3, notices to a
    Lender shall be deemed to be given and shall take effect when
    received in full legible form by such Lender at its address
    and/or fax
    number specified in schedule 1 or in any relevant Transfer
    Certificate (or at any other address or fax number as such
    Lender may hereafter specify for such purpose to the other
    Banks); and



 



    17.2.5 if under clause 17.2.1 or clause 17.2.3 a
    notice would be deemed to have been given and effective on a day
    which is not a working day in the place of receipt or is outside
    the normal business hours in the place of receipt, the notice
    shall be deemed to have been given and to have taken effect at
    the opening of business on the next working day in such place.



 




    17.3  Electronic
    Communication



 



    17.3.1 Any communication to be made by
    and/or
    between the Banks or any of them and the Security Parties or any
    of them under or in connection with the Security Documents or
    any of them may be made by electronic mail or other electronic
    means, if and provided that all such parties:



 



    (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 electronic
    mail address or any other such information supplied by them.



 



    17.3.2 Any electronic communication made by
    and/or
    between the Banks or any of them and the Security Parties or any
    of them will be effective only when actually received in
    readable form and, in the case of any electronic communication
    made by the Borrowers or the Lenders to the Agent, only if it is
    addressed in such manner as the Agent shall specify for this
    purpose.



 




    17.4  Notices
    through the Agent



 



    Every notice under this Agreement or (unless otherwise provided
    therein) any other Security Document to be given by the
    Borrowers to any other party, shall be given to the Agent for
    onward transmission as appropriate and every notice under this
    Agreement to be given to the Borrowers shall (except as
    otherwise provided in the Security Documents) be given to the
    Borrowers by the Agent.



 




    18  BORROWERS’
    OBLIGATIONS



 




    18.1  Joint
    and several



 



    Regardless of any other provision in any of the Security
    Documents, all obligations and liabilities whatsoever of the
    Borrowers herein contained are joint and several and shall be
    construed accordingly. Each of the Borrowers agrees and consents
    to be bound by the Security Documents to which it becomes a
    party notwithstanding that the other Borrower may not do so or
    be effectually bound and notwithstanding that any of the
    Security Documents may be invalid or unenforceable against the
    other Borrower, whether or not the deficiency is known to any
    Bank.



 




    18.2  Borrowers
    as principal debtors



 



    Each Borrower acknowledges that it is a principal and original
    debtor in respect of all amounts which may become payable by the
    Borrowers in accordance with the terms of any of the Security
    Documents and agrees that each Bank may continue to treat it as
    such, whether or not such Bank is or becomes aware that such
    Borrower is or has become a surety for the other Borrower.















Table of Contents








    18.3  Indemnity



 



    The Borrowers undertake to keep the Banks fully indemnified on
    demand against all claims, damages, losses, costs and expenses
    arising from any failure of any Borrower to perform or discharge
    any purported obligation or liability of that Borrower which
    would have been the subject of this Agreement or any other
    Security Document had it been valid and enforceable and which is
    not or ceases to be valid and enforceable against the other
    Borrower on any ground whatsoever, whether or not known to any
    Bank including, without limitation, any irregular exercise or
    absence of any corporate power or lack of authority of, or
    breach of duty by, any person purporting to act on behalf of the
    other Borrower (or any legal or other limitation, whether under
    the Limitation Acts or otherwise or any disability or death,
    bankruptcy, unsoundness of mind, insolvency, liquidation,
    dissolution, winding up, administration, receivership,
    amalgamation, reconstruction or any other incapacity of any
    person whatsoever (including, in the case of a partnership, a
    termination or change in the composition of the partnership) or
    any change of name or style or constitution of any Security
    Party)).



 




    18.4  Liability
    unconditional



 



    None of the obligations or liabilities of the Borrowers under
    any Security Document shall be discharged or reduced by reason
    of:



 



    18.4.1 the death, bankruptcy, unsoundness of mind,
    insolvency, liquidation, dissolution,
    winding-up,
    administration, receivership, amalgamation, reconstruction or
    other incapacity of any person whatsoever (including, in the
    case of a partnership, a termination or change in the
    composition of the partnership) or any change of name or style
    or constitution of any Borrower or any other person liable;



 



    18.4.2 any Bank granting any time, indulgence or concession
    to, or compounding with, discharging, releasing or varying the
    liability of, any Borrower or any other person liable or
    renewing, determining, varying or increasing any accommodation,
    facility or transaction or otherwise dealing with the same in
    any manner whatsoever or concurring in, accepting, varying any
    compromise, arrangement or settlement or omitting to claim or
    enforce payment from any Borrower or any other person
    liable; or



 



    18.4.3 anything done or omitted which but for this
    provision might operate to exonerate the Borrowers or all of
    them.



 




    18.5  Recourse
    to other security



 



    No Bank shall be obliged to make any claim or demand or to
    resort to any security or other means of payment now or
    hereafter held by or available to them for enforcing any of the
    Security Documents against any Borrower or any other person
    liable and no action taken or omitted by any Bank in connection
    with any such security or other means of payment will discharge,
    reduce, prejudice or affect the liability of the Borrowers under
    the Security Documents to which any of them is, or is to be, a
    party.



 




    18.6  Waiver
    of Borrowers’ rights



 



    Each Borrower agrees with the Banks that, throughout the
    Facility Period, it will not, without the prior written consent
    of the Agent:



 



    18.6.1 exercise any right of subrogation, reimbursement and
    indemnity against the other Borrower or any other person liable
    under the Security Documents;



 



    18.6.2 demand or accept repayment in whole or in part of
    any Indebtedness now or hereafter due to such Borrower from the
    other Borrower or from any other person liable for such
    Indebtedness or demand or accept any guarantee against financial
    loss or any document or instrument created or evidencing an
    Encumbrance in respect of the same or dispose of the same;



 



    18.6.3 take any steps to enforce any right against the
    other Borrower or any other person liable in respect of any such
    moneys; or















Table of Contents







    18.6.3 claim any set-off or counterclaim against the other
    Borrower or any other person liable or claim or prove in
    competition with any Bank in the liquidation of the other
    Borrower or any other person liable or have the benefit of, or
    share in, any payment from or composition with, the other
    Borrower or any other person liable or any security granted
    under any Security Document now or hereafter held by any Bank
    for any moneys owing under this Agreement or for the obligations
    or liabilities of any other person liable but so that, if so
    directed by the Agent, it will prove for the whole or any part
    of its claim in the liquidation of the other Borrower or other
    person liable on terms that the benefit of such proof and all
    money received by it in respect thereof shall be held on trust
    for the Banks and applied in or towards discharge of any moneys
    owing under this Agreement in such manner as the Agent shall
    require.



 




    19  GOVERNING
    LAW



 



    This Agreement is governed by and shall be construed in
    accordance with English law.



 




    20  JURISDICTION



 




    20.1  Exclusive
    Jurisdiction



 



    For the benefit of the Banks, and subject to clause 20.4
    below, the Borrowers hereby irrevocably agree that the courts of
    England shall have exclusive jurisdiction:



 



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



 



    20.1.2 to grant interim remedies or other provisional or
    protective relief.



 




    20.2  Submission
    and service of process



 



    Each Borrower accordingly irrevocably and unconditionally
    submits to the jurisdiction of the English courts. Without
    prejudice to any other mode of service each Borrower:



 



    20.2.1 irrevocably empowers and appoints HFW Nominees Ltd
    at present of Friary Court, 65 Crutched Friars, London EC3N 2AE,
    England as its agent to receive and accept on its behalf any
    process or other document relating to any proceedings before the
    English courts in connection with this Agreement;



 



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



 



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



 



    20.2.4 without prejudice to the effectiveness of service of
    process on its agent under clause 20.2.1 above but as an
    alternative method, consents to the service of process relating
    to any such proceedings by mailing or delivering a copy of the
    process to its address for the time being applying under
    clause 17.2;



 



    20.2.5 agrees that if the appointment of any person
    mentioned in clause 20.2.1 ceases to be effective, the
    Borrowers shall immediately appoint a further person in England
    to accept service of process on its behalf in England and,
    failing such appointment within seven (7) days the Agent
    shall thereupon be entitled and is hereby irrevocably authorised
    by the Borrowers in those circumstances to appoint such person
    by notice to the Borrowers.















Table of Contents








    20.3  Forum
    non conveniens and enforcement abroad



 



    Each Borrower:



 



    20.3.1 waives any right and agrees not to apply to the
    English court or other court in any jurisdiction whatsoever to
    stay or strike out any proceedings commenced in England on the
    ground that England is an inappropriate forum
    and/or that
    Proceedings have been or will be started in any other
    jurisdiction in connection with any dispute or related matter
    falling within clause 20.1; and



 



    20.3.2 agrees that a judgment or order of an English court
    in a dispute or other matter falling within clause 20.1
    shall be conclusive and binding on the Borrowers and may be
    enforced against it in the courts of any other jurisdiction.



 




    20.4  Right
    of Agent, but not Borrowers, to bring proceedings in any other
    jurisdiction



 



    20.4.1 Nothing in this clause 20 limits the right of
    any Lender to bring Proceedings, including third party
    proceedings, against any one or all Borrowers, or to apply for
    interim remedies, in connection with this Agreement in any other
    court and/or
    concurrently in more than one jurisdiction;



 



    20.4.2 the obtaining by any Lender of judgment in one
    jurisdiction shall not prevent such Lender from bringing or
    continuing proceedings in any other jurisdiction, whether or not
    these shall be founded on the same cause of action.



 




    20.5  Enforceability
    despite invalidity of Agreement



 



    Without prejudice to the generality of clause 13.9, the
    jurisdiction agreement contained in this clause 20 shall be
    severable from the rest of this Agreement and shall remain
    valid, binding and in full force and shall continue to apply
    notwithstanding this Agreement or any part thereof being held to
    be avoided, rescinded, terminated, discharged, frustrated,
    invalid, unenforceable, illegal
    and/or
    otherwise of no effect for any reason.



 




    20.6  Effect
    in relation to claims by and against non-parties



 



    20.6.1 For the purpose of this clause “Foreign
    Proceedings” shall mean any Proceedings except proceedings
    brought or pursued in England arising out of or in connection
    with (i) or in any way related to any of the Security
    Documents or any assets subject thereto or (ii) any action
    of any kind whatsoever taken by any Bank pursuant thereto or
    which would, if brought by any or all of the Borrowers against
    any Bank, have been required to be brought in the English courts;



 



    20.6.2 no Borrower shall bring or pursue any Foreign
    Proceedings against any Bank and shall use its best endeavours
    to prevent persons not party to this Agreement from bringing or
    pursuing any Foreign Proceedings against any Bank;



 



    20.6.3 If, for any reason whatsoever, any Security Party
    and/or any
    person connected howsoever with any Security Party brings or
    pursues against any Bank any Foreign Proceedings, the Borrowers
    shall indemnify such Bank on demand in respect of any and all
    claims, losses, damages, demands, causes of action, liabilities,
    costs and expenses (including, but not limited to, legal costs)
    of whatsoever nature howsoever arising from or in connection
    with such Foreign Proceedings which such Bank (or the Agent on
    its behalf) certifies as having been incurred by it;



 



    20.6.4 the Banks and the Borrowers hereby agree and declare
    that the benefit of this clause 20 shall extend to and may
    be enforced by any officer, employee, agent or business
    associate of any of the Banks against whom a Borrower brings a
    claim in connection howsoever with any of the Security Documents
    or any assets subject thereto or any action of any kind
    whatsoever taken by, or on behalf of or for the purported
    benefit of any Bank pursuant thereto or which, if it were
    brought against any Bank, would fall within the material scope
    of clause 20.1. In those circumstances this clause 20
    shall be read and construed as if references to any Bank were
    references to such officer, employee, agent or business
    associate, as the case may be.















Table of Contents







    Execution Pages



 



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



 


	 	 	 	 	 
	

    SIGNED as a deed for and on behalf of


	
 
	
    )
	
 
	
    /s/ Alexandros Laios

	

    SIFNOS SHIPPING CORPORATION


	
 
	
    )
	
 
	
 

	

    (as Borrower under and pursuant to


	
 
	
    )
	
 
	
 

	

    a power of attorney dated


	
 
	
    )
	
 
	
 

	

    30 March 2010) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED as a deed for and on behalf of


	
 
	
    )
	
 
	
    /s/ Alexandros Laios

	

    SKIATHOS SHIPPING CORPORATION


	
 
	
    )
	
 
	
 

	

    (as Borrower under and pursuant to


	
 
	
    )
	
 
	
 

	

    a power of attorney dated


	
 
	
    )
	
 
	
 

	

    30 March 2010) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED as a deed for and on behalf of


	
 
	
    )
	
 
	
    /s/ Alexandros Laios

	

    SYROS SHIPPING CORPORATION


	
 
	
    )
	
 
	
 

	

    (as Borrower under and pursuant to


	
 
	
    )
	
 
	
 

	

    a power of attorney dated


	
 
	
    )
	
 
	
 

	

    30 March 2010) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED  by


	
 
	
    )
	
 
	
    /s/ Dimitris Christacopoulos

	

    for and on behalf of


	
 
	
    )
	
 
	
    /s/ Promodus Papatheodorou

	

    FORTIS BANK


	
 
	
    )
	
 
	
 

	

    (as a Lender) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED  by


	
 
	
    )
	
 
	
    /s/ Robin Parry

	

    for and on behalf of


	
 
	
    )
	
 
	
 

	

    DVB BANK SE


	
 
	
    )
	
 
	
 

	

    (as a Lender) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED  by


	
 
	
    )
	
 
	
    /s/ Robin Parry

	

    for and on behalf of


	
 
	
    )
	
 
	
 

	

    DVB BANK SE


	
 
	
    )
	
 
	
 

	

    (as a Agent) in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû

	
 
	
 
	
 
	
 
	
 

	
 
	
 
	
 
	
 
	
 

	

    SIGNED  by


	
 
	
    )
	
 
	
    /s/ Dimitris Christacopoulos

	

    for and on behalf of


	
 
	
    )
	
 
	
    /s/ Prodromos Papatheodorou

	

    FORTIS BANK


	
 
	
    )
	
 
	
 

	

    (as Account Bank, Arranger, Payment Agent,


	
 
	
    )
	
 
	
 

	

    Swap Bank and Security Trustee


	
 
	
    )
	
 
	
 

	

    in the presence of


	
 
	
    )
	
 
	
    /s/ Ronan Le Dû