exv4w52







Exhibit 4.52










 









 











 









 











 









 











 









 











 









 











 









 











 









 











 









 











 









 














 












 














 












 







ADDITIONAL CLAUSES




to the Bareboat Charter dated June 8, 2011 between



Endurance Shipping LLC (as Owners) and Curby Navigation Ltd



(as Charterers)



in respect of



SUNGDONG HULL No. S-1125 (tbr m/v “NEWLEAD ENDURANCE”)



32. DEFINITIONS





	 	32.1	 	In these Additional Clauses, words and phrases defined in the Call Option
Agreement and not defined in this Charter shall have the same meaning when used herein and,
unless the context otherwise requires, the following expressions shall have the following
meanings:






	 	32.1.1	 	“Approved Time Charter” means a time charter in respect of the Vessel
between the Charterers as owners and the Time Charterer as charterer for a minimum
period of 81 months at a daily rate of not less than USD15,000 per day less commissions
not exceeding 4% and otherwise on terms acceptable to, and approved by, the Owners
constituted by a recap in respect of which all subjects have been lifted;
	 
	 	32.1.2	 	“Approved Managers” means Newlead Bulkers S.A. or such other persons as may
from time to time be nominated by Charterers and approved by the Owner in writing to
carry out any management of the Vessel whether technical or commercial;
	 
	 	32.1.3	 	“Banking Day” means days on which banks are open for business and not
authorised by law to close in New York;
	 
	 	32.1.4	 	“Builder” means Sungdong Shipbuilding and Marine Engineering Co. Ltd. of
Tongyeong City, Korea;
	 
	 	32.1.5	 	“Charterers Accounts Pledge” means the account pledge over the Charterer’s
Earnings Account, as referred to in Clause 48.1.1(b);
	 
	 	32.1.6	 	“Charterer’s Assignment” has the meaning given to it in Clause 48.1.1(a);
	 
	 	32.1.7	 	“Charterer’s Earnings Account” means the account designated “Newlead
Endurance Earnings Account”, in the name of the Charterers and held with such bank as
the Owners may require;
	 
	 	32.1.8	 	“Charter Guarantee” means the charter guarantee referred to in Clause
48.1.2;
	 
	 	32.1.9	 	“Charter Guarantor” means Newlead Holdings Ltd, a Bermuda corporation
having its registered office at Canon’s Court, 22 Victoria Street, Hamilton, Bermuda,
Hamilton, Bermuda;
	 
	 	32.1.10	 	“Charter Hire” has the meaning given to it in Clause 38.1;
	 
	 	32.1.11	 	“Charter Period” has the meaning given to it in Clause 37;
	 
	 	32.1.12	 	“Delivery Date” has the meaning given to it in Clause 33.2;














 






	 	32.1.13	 	“Earnings” means all monies whatsoever due or to become due to the
Charterers at any time during the Charter Period arising out of the use or operation of
the Vessel including (without prejudice to the generality of the following) any earnings
from the Approved Time Charter, all freight, hire and passage monies, compensation
payable to the Charterers in the event of requisition of the Vessel for hire,
remuneration for salvage and towage services, demurrage and detention monies and damages
for breach (or payments for variation or termination) of any charterparty or any other
contract of employment of the Vessel;
	 
	 	32.1.14	 	“Environmental Claim” means:






	 	(a)	 	any claim which relates to the Vessel or its cargo from time to time
by any governmental, judicial or regulatory authority which arises out of an
Environmental Incident or an alleged Environmental Incident or which relates to
any Environmental Law; or
	 
	 	(b)	 	any claim by any other person in relation to the Vessel or its cargo
from time to time which relates to an Environmental Incident or to an alleged
Environmental Incident,






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






	 	(a)	 	any release of Environmentally Sensitive Material from the Vessel;
or
	 
	 	(b)	 	any incident in which Environmentally Sensitive Material is released
from a vessel other than the Vessel and which involves a collision between the
Vessel and such other vessel or some other incident of navigation or operation,
in either case, in connection with which the Vessel is actually or potentially
liable to be arrested, attached, detained or injuncted and/or the Vessel and/or
the Charterers and/or any operator or manager of the Vessel is at fault or
allegedly at fault or otherwise liable to any legal or administrative action;
or
	 
	 	(c)	 	any other incident in which Environmentally Sensitive Material is
released otherwise than from the Vessel and in connection with which the Vessel
is actually or potentially liable to be arrested and/or where the Charterers or
the Approved Manager is at fault or allegedly at fault or otherwise liable to
any legal or administrative action;






	 	32.1.16	 	“Environmental Law” means any law relating to pollution or protection of
the environment, to the carriage of Environmentally Sensitive Material or to actual or
threatened releases of Environmentally Sensitive Material;
	 
	 	32.1.17	 	“Environmentally Sensitive Material” means oil, oil products and any other
substance (including any chemical, gas or other hazardous or noxious substance) which is
(or is capable of being or becoming) polluting, toxic or hazardous;
	 
	 	32.1.18	 	“Fair Market Value” means, in relation to the Vessel as at any date, the
market value of the relevant Vessel to be conclusively determined on the basis of the




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	 	 	 	average of valuations (which are not more than two months old at the time of the
calculation of the Fair Market Value) provided by two reputable, independent and
first class firms of shipbrokers appointed by the Owners. If the two valuations
differ by a margin of over 15% then a third shipbroker shall be appointed by the
Owners and the market value shall be the average of the three valuations. All
valuations shall be on the basis of a charter-free sale for prompt delivery for cash
at arm’s length on normal commercial terms as between a willing seller and a willing
buyer and at the expense of the Charterer;
	 
	 	32.1.19	 	“Financial Indebtedness” means, in relation to a person (the “debtor”), a
liability of the debtor:






	 	(a)	 	money borrowed or raised;
	 
	 	(b)	 	any bond, note, loan stock, debenture or similar instrument;
	 
	 	(c)	 	acceptance or documentary credit facilities;
	 
	 	(d)	 	deferred payments for assets or services acquired;
	 
	 	(e)	 	rental payments under leases (whether in respect of land, machinery
equipment or otherwise) entered into primarily as a method of raising finance
or of financing the acquisition of the asset leased;
	 
	 	(f)	 	guarantees, bonds, stand-by letters of credit or other instruments
issued in connection with the performance of contracts;
	 
	 	(g)	 	obligations under any derivative instrument; and
	 
	 	(h)	 	guarantees or other assurances against financial loss in respect of
indebtedness of any person falling within any of paragraphs (a) to (g) above;






	 	32.1.20	 	“Financing” means any financing arrangements which the Owners may enter
into from time to time to finance or refinance their purchase of the Vessel;
	 
	 	32.1.21	 	“Group Companies” means the Charterers, the Shareholder, the Charter
Guarantor and any Subsidiary of any of them (each a “Group Company”);
	 
	 	32.1.22	 	“Insurances” means:






	 	(a)	 	all policies and contracts of insurance, including entries of the
Vessel in any protection and indemnity or war risks association, which are
effected in respect of the Vessel or otherwise in relation to her, excluding
monies payable in respect of loss of hire; and
	 
	 	(b)	 	all rights and other assets relating to, or derived from, any of the
foregoing, including any rights to a return of a premium,






	 	 	 	which are from time to time taken out for the benefit of the Charterers in relation
to the Vessel;
	 
	 	32.1.23	 	“ISM Code” means the International Safety Management Code (including the
guidelines on its implementation), adopted by the International Maritime Organisation
Assembly as Resolutions A.741 (18) and A.788 (19), as the same may be amended or
supplemented from time to time (and the terms “safety




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	 	 	 	management system”, “Safety Management Certificate” and “Document of Compliance”
have the same meanings as are given to them in the ISM Code);
	 
	 	32.1.24	 	“ISPS Code” means the International Ship and Port Facility Security Code
adopted by the International Maritime Organisation (as the same may be amended,
supplemented or superseded from time to time);
	 
	 	32.1.25	 	“Lenders” means those banks or financial institutions which are a party to
any Financing from time to time (and “Lender” shall mean any of them);
	 
	 	32.1.26	 	“Major Casualty” means any casualty to the Vessel in respect of which the
claim or the aggregate of the claims against all insurers, before adjustment for any
relevant franchise or deductible, exceeds USD200,000 or the equivalent in any other
currency;
	 
	 	32.1.27	 	“MOA” means the Memorandum of Agreement for the sale and purchase of the
Vessel dated the same date as this Charter (as same may be amended from time to time)
made between the Seller, as seller and the Owners as buyer;
	 
	 	32.1.28	 	“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, if the period started on the last day in a
calendar month or if there is no such numerically corresponding day, it shall end on the
last day of such next calendar month or, if such last day is not a Banking Day, on the
immediately preceding such Banking Day, and “months” and “monthly” shall be construed
accordingly;
	 
	 	32.1.29	 	“Mortgagee” means any bank or financial institution to which the Owners
grant a mortgage over the Vessel at any time;
	 
	 	32.1.30	 	“Option Agreement” means the option agreement dated the same date as this
Charter and entered into between the Owners and the Charterers on the terms stated
therein;
	 
	 	32.1.31	 	“Owners’ Account” means such account in the name of the Owners which is
held with DnB NOR and is specified as being the “Owners Account” for the purposes of
this Charter or such other account as the Owners may specify to the Charterers from time
to time in writing;
	 
	 	32.1.32	 	“Permitted Security Interest” means any Security Interest over the Vessel
granted to a Mortgagee or Lender pursuant to the terms of Financing;
	 
	 	32.1.33	 	“Pertinent Jurisdiction” means, in relation to a company:






	 	(a)	 	England and Wales;
	 
	 	(b)	 	the country under the laws of which that company is incorporated or
formed;
	 
	 	(c)	 	a country in which that company’s central management and control is
or has recently been exercised;
	 
	 	(d)	 	a country in which the overall net income of that company is subject
to corporation tax, income tax or any similar tax;
	 
	 	(e)	 	a country in which assets of that company (other than securities
issued by, or loans to, related companies) having a substantial value are
situated, in which




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	 	 	 	the company maintains a permanent place of business, or in which a Security
Interest created by the company must or should be registered in order to
ensure its validity or priority;
	 
	 	(f)	 	a country the courts of which have jurisdiction to make a winding
up, administration or similar order in relation to the company or which would
have such jurisdiction if their assistance were requested by the courts of a
country referred to in paragraphs (b) or (c);






	 	32.1.34	 	“Security Interest” means any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement of arrangement having a
similar effect;
	 
	 	32.1.35	 	“Seller” means the Charterers in their capacity as seller under the MOA;
	 
	 	32.1.36	 	“Shareholder” means Newlead Bulker Holdings Inc. a company incorporated in
the Marshall Islands with its registered office at Trust Company Complex, Ajeltake
Island, Ajeltake Road, Majuro, Marshall Islands;
	 
	 	32.1.37	 	“Share Pledge” means a pledge by the Shareholder of all the outstanding
issued shares of the Charterer;
	 
	 	32.1.38	 	“Shipbuilding Contract” means the contract dated 23 January 2010 between
the Builder as builder and the Seller as buyer for the construction of the Vessel as
builder’s hull number S-1125;
	 
	 	32.1.39	 	“Subsidiary” means, in relation to a company or other entity, any other
company or entity directly or indirectly controlled by such company or other entity, 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 power to appoint or remove a majority of its board of directors having votes
or direct policies and management whether by contract or otherwise;
	 
	 	32.1.40	 	“Taxes” shall have the meaning given in Clause 38.4;
	 
	 	32.1.41	 	“Termination Date” means the date specified in a notice served pursuant to
Clause 50.1 as the date on which the chartering of the Vessel by the Charterers is to
terminate;
	 
	 	32.1.42	 	“Termination Event” has the meaning given to it in Clause 49.1;
	 
	 	32.1.43	 	“Termination Sum” shall be calculated in accordance with Schedule 1;
	 
	 	32.1.44	 	“Time Charterer” means Deiulemar Shipping SpA, a company incorporated in
Italy and acting through its office at Torre del Greco, Naples, Italy;
	 
	 	32.1.45	 	“Total Loss” has the meaning given in Clause 46.1.1;
	 
	 	32.1.46	 	“Total Loss Amount” shall be a sum calculated in accordance with Schedule 2;
	 
	 	32.1.47	 	“Total Loss Date” has the meaning given in Clause 46.1.2;
	 
	 	32.1.48	 	“Transaction Documents” means this Charter, the MOA, the Option Agreement,
the Charter Guarantee, the Charterer’s Assignment, the Charterer’s Account Pledge and
the Share Pledge;




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	 	32.1.49	 	“US GAAP” means generally accepted accounting principles applicable in the
United States of America as at the date of this Charter;
	 
	 	32.1.50	 	“Vessel” means the vessel identified at Box 5 of Part 1 of this Charter.






	 	32.2	 	The headings in this Charter do not affect its interpretation.
	 
	 	32.3	 	In the event of any conflict between these Additional Clauses and Part 1 and 2
of this Charter, these Additional Clauses shall have priority and shall override the
wording of Part 1 and Part 2.





33. MOA AND DELIVERY





	 	33.1	 	The Owners’ obligation to charter the Vessel to the Charterers under this
Charter is conditional upon delivery of the Vessel to the Owners by the Seller pursuant to
the MOA.
	 
	 	33.2	 	For the purposes of this Charter, the Vessel shall be deemed delivered to the
Charterers simultaneously with delivery of the Vessel to the Owners by the Seller pursuant
to the MOA (such date being the “Delivery Date”).
	 
	 	33.3	 	Without prejudice to the provisions of clause 33.2 above, the Owners and the
Charterers shall on the Delivery Date sign a Protocol of Delivery and Acceptance evidencing
delivery of the Vessel hereunder.





34. CANCELLING





	 	 	 	Should the MOA be cancelled by the Owners pursuant to clause 13 of the MOA or considered
null and void pursuant to clause 18 of the MOA, this Charter shall be cancelled forthwith
and the Charterers shall make due compensation to the Owners for their loss and for all
reasonable expenses together with interest in accordance with the MOA.





35. TERMS OF DELIVERY





	 	35.1	 	Subject to clause 35.4 and 44.3 below, the Charterers acknowledge and agree
that the Owners make no condition, term, representation or warranty, express or implied
(and whether statutory or otherwise) as to seaworthiness, merchantability, condition,
design, operation, performance, capacity or fitness for use of the Vessel or as to the
eligibility of the Vessel for any particular trade or operation or any other condition,
term, representation or warranty whatsoever, express or implied, with respect to the
Vessel. The Charterers expressly agree to accept delivery of the Vessel whether or not the
Vessel is seaworthy, in good working order and repair and whether or not subject to any
defect or inherent vice, and the Charterers agree to remedy any defects and inherent vices
(even if not known or discoverable at the time of delivery) and to put the Vessel into
seaworthy condition and good working order and repair the Vessel to the extent that this is
not the case. The Charterers further acknowledge and agree that the Owners make no
warranty regarding the Vessel being free and clear of any encumbrance, mortgage, charge,
lien, security interest or debt of whatsoever nature (together “Liens”) other than that it
shall be free of any Liens created by the Owners.
	 
	 	35.2	 	Subject to clause 35.4 hereof, and without prejudice to the provisions of
Clause 35.1, the Charterers hereby waive all their rights in respect of any condition,
term, representation, or warranty express or implied (and whether statutory or otherwise)
on the part of the Owners and all their claims against the Owners howsoever and




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	 	 	 	whensoever the same may arise at any time in respect of the Vessel arising out of the
operation or performance of the Vessel and the chartering thereof under this Charter
(including in respect of the seaworthiness or otherwise of the Vessel) and, in particular
and without prejudice to the generality of the foregoing, the Owners shall be under no
liability whatsoever and howsoever arising in respect of any losses, costs, charges,
expenses, fees, payments, liabilities, penalties, fines, damages or other sanctions of a
monetary nature in respect of the injury, death, loss, damage or delay of or to or in
connection with any person (which expression includes, but is not limited to, states,
governments, municipalities and local authorities) or property whatsoever, whether on
board the Vessel or elsewhere, irrespective of whether or when or where such injury,
death, loss, damage or delay shall arise or of whether it shall arise as a result of the
Vessel not being seaworthy or otherwise or of whether or not the Vessel or any part
thereof is in the possession or under the control of the Charterers provided always that
nothing in this Clause 35 shall exclude any liability of the Owners for death or personal
injury resulting from negligence or for damages as a consequence of the Owners’ breach of
their obligations under Clauses 17(b), 40.2 or 40.3. However, to the extent that any
liability of the Owners for death or personal injury is incurred other than by reason of
wilful default or negligence on the part of the Owner, the Charterers hereby indemnify
the Owners in respect of the same.
	 
	 	35.3	 	The Charterers agree that the Owners shall be under no liability to supply any
replacement vessel or any piece or part thereof during any period when the Vessel is
unusable and shall not be liable to the Charterers or any other person as a result of the
Vessel being unusable.
	 
	 	35.4	 	Nothing contained in this Clause 35 shall be construed as a waiver of any
rights or remedies of the Charterers at law or in equity against the Owners in respect of
any fraudulent or wilful misconduct of the Owners.





36. CONDITIONS PRECEDENT/SUBSEQUENT





	 	36.1	 	Notwithstanding anything to the contrary in this Charter, the obligations of
the Owner under this Charter, shall be subject to receipt by the Owners on or prior to the
Delivery Date of the following in forms and substance acceptable to the Owner in its
discretion:






	 	(a)	 	such corporate documents as the Owner’s legal advisers may require
(including the memorandum of association and articles of association (or equivalent
documents), directors’ resolutions and, if required by the providers of legal opinions,
shareholders’ resolutions) of the Charterers, the Shareholder and the Charter
Guarantor;
	 
	 	(b)	 	such documentation and other evidence as is reasonably required by
commercial enterprises in order for the Owners to comply with their “Know Your
Customers” regulations or other checks in relation to the identity of any person that
they are required by any applicable law to carry out in relation to commercial
transactions;
	 
	 	(c)	 	the MoA and the Option Agreement, duly executed by the Seller and Charterers
respectively;
	 
	 	(d)	 	the non refundable fee referred to in Clause 37.2;
	 
	 	(e)	 	the non-refundable premium of USD10,400,000 referred to in Clause 37.3
(unless such amount is to be set off against the Purchase Price);




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	 	(f)	 	a certified copy of the Shipbuilding Contract and an acknowledgement signed
by the Builder of a notice of assignment to the Owner of the Seller’s rights under the
post delivery warranty in the Shipbuilding Contract;
	 
	 	(g)	 	a certified copy of the Approved Time Charter and an acknowledgment signed
by the Time Charterer of a notice of assignment to the Owner and of the Owner’s step in
rights in relation to the Approved Time Charter;
	 
	 	(h)	 	the Charterer’s Assignment and the Charterer’s Accounts Pledge, each duly
signed by Charterer together with all notices and other documents required to be signed
thereunder and acknowledgements of such notices duly signed by all addressees of such
notices, including an acknowledgement of the Charterers Accounts Pledge duly signed on
behalf of the bank where the Charterer’s Earnings Account is held, and (if then
available, failing which the same shall be a condition subsequent to be satisfied
within fifteen (15) days of the Delivery Date), evidence that all insurance policies
have been endorsed with such notice of assignment and a loss payable clause in
accordance with the terms of the Charterers Assignment;
	 
	 	(i)	 	no Termination Event having occurred and continuing unremedied, and no
other event having occurred and continuing, which with the giving of notice and/or
lapse of time would, if not remedied, constitute a Termination Event;
	 
	 	(j)	 	each of the representations and warranties contained in Clause 40 of this
Charter being true and correct in all material respects on the Delivery Date by
reference to the facts and circumstances then existing;
	 
	 	(k)	 	the Owners having received such evidence as they may reasonably require
that the Vessel will, as from the Delivery Date, be insured in accordance with the
provisions of this Charter and that all requirements of this Charter in respect of
such insurances have been complied with;
	 
	 	(l)	 	the Owners having received a favourable legal opinion from an independent
insurance consultant acceptable to the Owner on such matters as the Owners may
require;
	 
	 	(m)	 	the Owners having received the Charter Guarantee duly executed;
	 
	 	(n)	 	the Share Pledge duly signed by the Shareholder together with all documents
required to be signed thereunder, each duly signed;
	 
	 	(o)	 	the Vessel having been delivered by the Builder to the Seller and all
obligations of the Builder and of Sellers under the Shipbuilding Contract having been
duly performed in accordance with their terms;
	 
	 	(p)	 	all obligations of the Sellers under the MoA having been duly performed in
accordance with their terms;
	 
	 	(q)	 	the Owners having received a class confirmation certificate in respect of
the Vessel issued by the classification society indicated in Box 10 evidencing that
the Vessel is in class with no overdue recommendations or requirements against class;
	 
	 	(r)	 	the Owners having received a survey report as to the physical condition of
the Vessel in a form and substance satisfactory to the Owners;




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	 	(s)	 	the Charterers having nominated Approved Managers in respect of both
commercial management of the Vessel and technical management of the Vessel and Owners
having approved such nomination;
	 
	 	(t)	 	the Owners having received on the Delivery Date, a copy of the current
Safety Construction, Safety Equipment, Safety Radio and Load Line Certificates of the
Vessel;
	 
	 	(u)	 	the Owners having received such confirmations from its legal advisers in
such relevant jurisdictions as it selects that legal opinions in form and substance
acceptable to the Owners will be issued on or following the Delivery Date;
	 
	 	(v)	 	the Owners having received documents establishing that the Vessel will, as
from the date of delivery under the Charter, be managed by the Approved Manager on
terms acceptable to the Owners, together with (i) a letter of undertaking in the form
attached as Schedule 3 executed by the Approved Manager in favour of the Owner
agreeing certain matters in relation to the management of the Vessel and subordinating
the rights of the Approved Manager against the Vessel to the Owners, and (ii) copies
of the Approved Manager’s Document of Compliance and of the Vessel’s Safety Management
Certificate and International Ship Security Certificate (together with any details of
the applicable safety management system which the Owner requires);
	 
	 	(w)	 	the Vessel having been registered in the name of the Owner under the laws
and flag of Liberia; and
	 
	 	(x)	 	the Owners having received such documentation and other evidence as they
may require under Clause 43.12.





37. CHARTER PERIOD, CHARTER FEES AND PREMIUM





	 	37.1	 	Subject to the terms of this Charter, the period of chartering of the Vessel
hereunder (the “Charter Period”) shall commence on the Delivery Date and shall terminate on
the date which falls eighty four (84) months after the Delivery Date.
	 
	 	37.2	 	On or before the Delivery Date, the Charterer shall pay to the Owner a
non-refundable fee set out in a separate side letter from the Charterer to the Owner dated
on or about the date of this Charter.
	 
	 	37.3	 	On or before the Delivery Date, the Charterer shall pay to the Owner a
non-refundable premium for the granting of this Charter and the Option Agreement in an
amount of USD10,400,000. If such sum is not paid before the Purchase Price is required to
be paid under the MOA, the Owner shall be entitled to set off such amount against the
Purchase Price.





38. CHARTER HIRE





	 	38.1	 	The Charterers shall, from the first day of the Charter Period until such time
as the Vessel becomes a Total Loss or is redelivered in accordance with the terms of this
Charter (even if beyond the Charter Period), pay charter hire (“Charter Hire”) to the
Owners at the rate of US$9,500 per day.
	 
	 	38.2	 	Charter Hire shall be paid monthly in advance commencing on the Delivery Date.
	 
	 	38.3	 	Notwithstanding anything to the contrary contained in this Charter:-




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	 	38.3.1	 	The Charterers shall pay the Charter Hire in United States Dollars in
funds with the same day value to the Owners’ Account, not later than 11.00 am (New
York time) on the relevant payment date;
	 
	 	38.3.2	 	If any day for the making of any payment hereunder shall not be a Banking
Day, the due date for payment of the same shall be the immediately preceding Banking
Day;
	 
	 	38.3.3	 	Receipt of the Charter Hire from the Charterers into the Owners’ Account
shall constitute payment by the Charterers to the Owners of the Charter Hire payable
under this Charter.






	 	38.4	 	Subject to the terms of this Charter, all payments hereunder shall be made net
of all commissions and without any set-off or counterclaim whatsoever and free and clear of
and without withholding or deduction for, or on account of, any present or future income,
freight, stamp and other taxes, levies, imposts, duties, fees, charges, restrictions or
conditions of any nature (collectively “Taxes”). If the Charterers are so required to make
any withholding or deduction from any such payment for or on account of any Taxes, the sum
due from the Charterers in respect of such payment will be increased to the extent
necessary to ensure that, after making such withholding or deduction, the payment shall be
of a net sum equal to the amount which would have been paid had no such withholding or
deduction been required to be made. The Charterers will promptly deliver to the Owners any
receipts, certificates or other proof evidencing the amounts, if any, paid to or payable in
respect of any such withholding or deduction as aforesaid.
	 
	 	38.5	 	In the event of failure by the Charterers to pay on the due date for payment
thereof, or in the case of a sum payable on demand, within two (2) Banking Days following
the date of demand therefore, any hire or other amount payable by them under this Charter,
the Charterers will pay to the Owners on demand default interest on such hire or such other
amount from the date of such failure to the date of actual payment (both before and after
any relevant judgment or the winding up of the Charterers) at the rate determined by the
Owners and certified by them to the Charterers (such certification to be conclusive in the
absence of manifest error) to be the equivalent of two per centum (2%) per annum above the
rate at which Owners can borrow funds on a short term basis. The default interest payable
by the Charterers as aforesaid shall be payable on demand.
	 
	 	38.6	 	Any default interest payable under this Charter shall accrue from day to day
and shall be calculated on the actual number of days elapsed and a three hundred and sixty
(360) day year.
	 
	 	38.7	 	The Charterers’ obligations to pay hire shall, subject to the terms of this
Charter, be absolute, irrespective of any contingency whatsoever, including (but not
limited to):






	 	38.7.1	 	any set-off (except as set out in this Charter), counterclaim, recoupment,
defence, deduction, withholding or other right which the Charterers may have against the
Owners or any other person;
	 
	 	38.7.2	 	any unavailability of the Vessel for any reason, including (but not limited
to) any lack or invalidity of title (provided the same is due to deficiencies in the
title to the Vessel acquired by the Owners pursuant to the MOA) or any other defect in
the title, condition, design, operation or fitness for use of the Vessel or the
ineligibility of the Vessel for any particular trade or for documentation under the laws
of any country or any damage to the Vessel.




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39. FLAG





	 	39.1	 	The Charterers shall, at their own expense, upon the Delivery Date arrange for
the Vessel to be registered in the name of the Owners under the flag of Liberia.
Throughout the Charter Period, the Charterers shall be responsible for, and shall indemnify
the Owners in respect of, the maintenance of and compliance with all ongoing administrative
and reporting requirements of the Liberian Ship Registry and/or the maritime authorities of
Liberia, and for the payment of all costs, charges, expenses, fees and taxes charged to the
Owners or the Charterers by the Liberian Ship Registry, any Liberian authority, any
resident agent or any agent or advisor in connection with such registration of the Vessel
in Liberia.
	 
	 	39.2	 	The Charterers shall not change the flag or registry of the Vessel without the
prior written consent of the Owners, not to be unreasonably withheld or delayed. Likewise,
no change shall be made to the Vessel’s flag without the Charterer’s written consent, which
is not to be unreasonably withheld or delayed.





40. REPRESENTATIONS AND WARRANTIES





	 	40.1	 	The Charterers acknowledge that the Owners have entered into this Charter in
full reliance on representations by the Charterers in the following terms; and the
Charterers now warrant to the Owners that the following statements are, at the date hereof,
and on the Delivery Date will be, true and accurate:-






	 	40.1.1	 	The Charterers are duly incorporated and validly existing under the laws
of Liberia as a Liberian corporation;
	 
	 	40.1.2	 	The entire issued share capital and stock of the Charterers is legally and
beneficially owned by the Shareholder and will be so owned throughout the Charter
Period.
	 
	 	40.1.3	 	The entire issued share capital and stock of the Shareholder is legally
and beneficially owned by the Charter Guarantor and will be so owned throughout the
Charter Period.
	 
	 	40.1.4	 	The Charterers have the power to conduct their business as it is now
carried on, to own or hold under lease their assets, to execute, deliver and perform
their obligations under this Charter, and all necessary corporate, shareholder and
other action has been taken to authorise the execution, delivery and performance of
this Charter;
	 
	 	40.1.5	 	This Charter constitutes the valid and legally binding and enforceable
obligations of the Charterers ranking at least pari passu with all other of their
unsecured obligations and liabilities (actual or contingent) other than any mandatorily
preferred by law;
	 
	 	40.1.6	 	The entry into and performance by the Charterers of this Charter or any
other Transaction Document to which it is a party does not, and will not during the
Charter Period, violate (i) any existing law or regulation of any governmental or
official authority or body to which the Charterers or their business operations are
subject, or (ii) the constitutional documents of the Charterers, or (iii) any
agreement, contract or other undertaking to which the Charterers are a party or which
is binding on the Charterers or any of their assets;




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	 	40.1.7	 	All consents, licences, approvals and authorisations required in
connection with the entry into, performance, validity and enforceability of this
Charter have been obtained and are, or will on and following the Delivery Date be, in
full force and effect;
	 
	 	40.1.8	 	No litigation, arbitration or administrative proceeding is taking place
against the Charterers or against any of their assets which is likely to be adversely
determined and, if adversely determined, would have a material adverse effect on the
Charterers’ ability to perform their obligations under this Charter;
	 
	 	40.1.9	 	The representations and warranties contained in the Charter Guarantee are,
at the date thereof, and on the Delivery Date will be, true, accurate and complied
with; and
	 
	 	40.1.10	 	The Approved Time Charter constitutes valid and binding and enforceable
obligations of the parties thereto, the copy delivered to the Owners before the date of
this Charter is a true and complete copy thereof and there has been no amendment or
addition to the Approved Time Charter nor has any party thereto waived any of their
respective rights thereunder except as notified to the Owners.
	 
	 	40.1.11	 	The copy of the Shipbuilding Contract provided to the Owners prior to the
date of this Charter is a true copy and sets out the entirety of the agreement between
the Builder and the Sellers in relation to the Vessel.






	 	40.2	 	The Owners acknowledge that the Charterers have entered into this Charter in
full reliance on representations by the Owners in the following terms; and the Owners now
warrant to the Charterers that the following statements are, at the date hereof, and on the
Delivery Date will be, true and accurate:-.






	 	40.2.1	 	The Owners are duly incorporated and validly existing under the laws of
the Marshall Islands as a limited liability corporation;
	 
	 	40.2.2	 	The Owners have the power to conduct their business as it is now carried
on, to own or hold under lease their assets, to execute, deliver and perform their
obligations under this Charter, and all necessary corporate, member and other action
has been taken to authorise the execution, delivery and performance of this Charter;
	 
	 	40.2.3	 	This Charter constitutes the valid and legally binding and enforceable
obligations of the Owners ranking at least pari passu with all other of their unsecured
obligations and liabilities (actual or contingent) other than any mandatorily preferred
by law;
	 
	 	40.2.4	 	The entry into and performance by the Owners of this Charter does not, and
will not during the Charter Period, violate (i) any existing law or regulation of any
governmental or official authority or body to which the Owners or their business
operations are subject, or (ii) the constitutional documents of the Owners, or (iii)
any agreement, contract or other undertaking to which the Owners are a party or which
is binding on the Owners or any of their assets;
	 
	 	40.2.5	 	All consents, licences, approvals and authorisations required in
connection with the entry into, performance, validity and enforceability of this
Charter have been obtained and are, or will prior to the Delivery Date be, in full
force and effect; and




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	 	40.2.6	 	No litigation, arbitration or administrative proceeding is taking place
against the Owners or against any of their assets which is likely to be adversely
determined and, if adversely determined, would have a material adverse effect on the
Owners’ ability to perform their obligations under this Charter.






	 	40.3	 	The representations and warranties contained in Clauses 40.1 and 40.2 hereof
shall be deemed to be repeated by the Charterers and the Owners respectively on and as of
the Delivery Date and on each day thereafter during the Charter Period as if made with
reference to the facts and circumstances existing on such date, and the rights of the
Owners and the Charterers respectively in respect thereof shall survive delivery of the
Vessel hereunder.





41. CHARTERERS’ GENERAL UNDERTAKINGS





	 	 	 	The Charterers undertake and agree that throughout the Charter Period they will:
	 
	 	41.1	 	Provide to the Owners:






	 	41.1.1	 	the English language unaudited management accounts of the Charterers,
prepared in accordance with US GAAP, as soon as is available and in no event later than
180 days after the end of the Charter’s financial year; and
	 
	 	41.1.2	 	the English language consolidated audited annual financial statements of
the Charter Guarantor, prepared in accordance with US GAAP, as soon as is available and
in no event later than 180 days after the end of Charter Guarantor’s financial year; and
	 
	 	41.1.3	 	the English language consolidated unaudited quarterly financial statements
of the Charter Guarantor, prepared in accordance with US GAAP and including footnotes,
as soon as is available and in no event later than 90 days after each quarterly
reporting period.






	 	41.2	 	Procure that where there has been a change in the generally accepted accounting
principle applicable in the United States of America following the date of this Charter,
any accounts prepared in accordance with such modified GAAP and delivered hereunder shall
also include appropriate adjustments to show what they would have been under US GAAP.
	 
	 	41.3	 	Procure that there shall be no change in their legal or beneficial ownership or
in their control or management.
	 
	 	41.4	 	Procure that no substantial change is made to the general nature of their
business, or the general nature of the Charter Guarantor’s business, from that carried on
at the date of this Charter.
	 
	 	41.5	 	Not enter into any amalgamation, demerger, merger or corporate reconstruction.
	 
	 	41.6	 	Comply in all respects with all laws and regulations to which they may be
subject.
	 
	 	41.7	 	Not make or pay any dividend or other distribution (in cash or in kind) in
respect of their share capital without the prior written consent of the Owners.
	 
	 	41.8	 	Not incur any Financial Indebtedness other than that which is created by this
Charter.
	 
	 	41.9	 	Upon the request of the Owners, use all reasonable efforts to assist the Owners
in negotiating and entering into any Financing, if required from time to time.




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	 	41.10	 	Enter into, and procure that the Charter Guarantor enter into, any agreements,
deeds, undertakings and other documents as the Owners may require in connection with any
Financing, or proposed Financing, including, without limitation, entering in to such direct
operating and insurance covenants in relation to the Vessel and security assignments as may
be required by the Lenders in relation to the Financing.
	 
	 	41.11	 	Procure that the Shareholder shall acknowledge in such terms as the Owners may
require notices of any security assignment entered into pursuant to any Financing.





42. CHARTERERS’ UNDERTAKINGS IN RESPECT OF EARNINGS AND CHARTERER’S EARNINGS ACCOUNT





	 	42.1	 	The Charterers shall ensure that, throughout the Charter Period, all of the
Earnings are paid to the Charterers Earnings Account;
	 
	 	42.2	 	The Charterers shall






	 	42.2.1	 	comply with any requirement of the Owners as to the location or re-location
of the Charterer’s Earnings Account; and
	 
	 	42.2.2	 	execute any documents which the Owners specify to create or maintain a
Security Interest over the Charterer’s Earnings Account.





43. CHARTERERS’ VESSEL UNDERTAKINGS





	 	43.1	 	The Charterers shall ensure that the Vessel is at all times employed in
accordance with the general employment strategy of the Charterers.
	 
	 	43.2	 	The Charterers shall enter into the Approved Time Charter on or before the
Delivery Date, shall deliver the Vessel under the Approved Charter on or before the fourth
day after the Delivery Date and shall operate the Vessel pursuant to the Approved Time
Charter for a period of not less than 81 months.
	 
	 	43.3	 	The Charterers shall not vary or amend the terms, or agree to the premature
termination, of the Approved Time Charter without the prior written consent of the Owners.
	 
	 	43.4	 	The Charterers shall keep the Vessel in a good and safe condition and state of
repair:






	 	43.4.1	 	consistent with first-class ship ownership and management practice;
	 
	 	43.4.2	 	so as to maintain the Vessel’s current class with Bureau Veritas of
Shipping, free of overdue recommendations and conditions affecting the Vessel’s class or
the equivalent with such other classification society which is a member of the IACS and
which is agreed with the Owners; and
	 
	 	43.4.3	 	so as to comply with all laws and regulations applicable to vessels
registered at ports in Liberia or to vessels trading to any jurisdiction to which the
Vessel may trade from time to time, including but not limited to the ISM Code and the
ISPS Code;






	 	43.5	 	The Charterers shall operate, maintain and insure the Vessel so as to comply
with and satisfy in full the requirements of, the Owners’ obligations under any Financing
if and to the extent such obligations are notified to the Charterer by the Owners at any
time or from time to time during the Charter Period.




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	 	43.6	 	Except in the circumstances described in Clause 43.7 below, the Charterers
shall not, unless the Owners’ prior written consent is obtained, make any modification or
repairs to, or replacement of, the Vessel or equipment installed on the Vessel which would
or might materially alter the structure, type or performance characteristics of the Vessel
or materially reduce its value;
	 
	 	43.7	 	Notwithstanding Clause 43.6 above, the Owner’s consent shall not be required to
carry out the actions described therein in the event of an emergency of such nature that
necessitates those actions being taken and which does not allow the Charterers time to
obtain the Owner’s consent prior to carrying them out. In these circumstances, the
Charterers shall, as soon as practicable, inform the Owner of the actions taken and, at the
request of the Owner and to the extent possible, the Charterers shall undo any such work
carried out on the Vessel or its equipment prior to the redelivering the Vessel to the
Owner.
	 
	 	43.8	 	The Charterers shall permit the Owners, at the Charterers’ expense, to arrange
for the Vessel to be fully surveyed not less than once per year and the Charterers shall
submit the Vessel to all periodical or other surveys which may be required for
classification purposes and shall provide the Owners with copies of all survey reports;
	 
	 	43.9	 	The Charterers shall permit the Owners (by surveyors or other persons appointed
by it for that purpose) to board the Vessel at any time to inspect its condition or to
satisfy themselves about proposed or executed repairs and to review the Vessel’s operating
and/or insurance records without interfering with the Vessel’s operation and shall afford
all proper facilities for such inspections and, to the extent that such inspections are
additional to those surveys referred to in Clause 43.7 above, such inspections shall be at
the cost of the Owners.
	 
	 	43.10	 	The Charterers shall promptly discharge:






	 	43.10.1	 	all liabilities which give or may give rise to maritime or possessory
liens on or claims enforceable against the Vessel, the Earnings or the Insurances;
	 
	 	43.10.2	 	all taxes, dues and other amounts charged in respect of the Vessel, the
Earnings or the Insurances; and
	 
	 	43.10.3	 	all other outgoings whatsoever in respect of the Vessel, the Earnings or
the Insurances,






	 	 	and, forthwith upon receiving notice of the arrest of the Vessel, or of its detention in
exercise or purported exercise of any lien or claim, the Charterers shall procure its release
by providing bail or otherwise as the circumstances may require;
	 
	 	43.11	 	The Charterers shall:






	 	43.11.1	 	comply, and procure the Approved Manager’s compliance, with the ISM Code
and the ISPS Code, all Environmental Laws and all other laws or regulations relating to
the Vessel, its ownership, operation and management or to the business of the
Charterers;
	 
	 	43.11.2	 	not employ the Vessel nor allow its employment in any manner contrary to
any law or regulation in any relevant jurisdiction including but not limited to the ISM
Code and the ISPS Code; and




15









 






	 	43.11.3	 	in the event of hostilities in any part of the world (whether war is
declared or not), not cause or permit the Vessel to enter or trade to any zone which is
declared a war zone by any government or by the Vessel’s war risks insurers unless the
prior written consent of the Owners has been given and the Charterers have (at their
expense) effected any special, additional or modified insurance cover which the Owners
may require;






	 	43.12	 	The Charterers shall promptly provide the Owners with any information, if and
when required by the Owners, regarding:






	 	43.12.1	 	the Vessel, its employment, position and engagements;
	 
	 	43.12.2	 	the Earnings and payments and amounts due to the master and crew of the
Vessel;
	 
	 	43.12.3	 	any expenses incurred, or likely to be incurred, in connection with the
operation, maintenance or repair of the Vessel and any payments made in respect of the
Vessel;
	 
	 	43.12.4	 	any towages and salvages;
	 
	 	43.12.5	 	its compliance, the Approved Manager’s compliance and the compliance of
the Vessel with the ISM Code and the ISPS Code;
	 
	 	43.12.6	 	and, upon the Owners request, provide copies of any current charter
relating to the Vessel, of any current charter guarantees and copies of the Vessel’s
Document of Compliance;






	 	43.13	 	The Charterers shall immediately notify the Owners by email, confirmed
forthwith by letter of:






	 	43.13.1	 	any casualty which is or is likely to be or to become a Major Casualty;
	 
	 	43.13.2	 	any occurrence as a result of which the Vessel has become or is, by the
passing of time or otherwise, likely to become a Total Loss;
	 
	 	43.13.3	 	any requirement or recommendation made by any insurer or classification
society or by any competent authority which is not immediately complied with;
	 
	 	43.13.4	 	any arrest or detention of the Vessel, any exercise or purported exercise
of any lien on the Vessel or its Earnings or any requisition of the Vessel for hire;
	 
	 	43.13.5	 	any intended dry docking of the Vessel;
	 
	 	43.13.6	 	any Environmental Claim made against the Charterers or in connection with
the Vessel, or any Environmental Incident;
	 
	 	43.13.7	 	any claim for breach of the ISM Code or the ISPS Code being made against
the Charterers, an Approved Manager or otherwise in connection with the Vessel; or
	 
	 	43.13.8	 	any other matter, event or incident, actual or threatened, the effect of
which will or could lead to the ISM Code or the ISPS Code not being complied with;
	 
	 	 	 	and the Charterers shall keep the Owners advised in writing as and when required by
the Owners and in such detail as the Owners shall require of the Charterers’, each
Approved Manager’s or any other person’s response to any of those events or matters;




16









 












	 	43.14	 	The Charterers shall not, without the prior written consent of the Owners:






	 	43.14.1	 	let the Vessel on demise charter for any period;
	 
	 	43.14.2	 	save for the Approved Time Charter, enter into any time or consecutive
voyage charter in respect of the Vessel for a term which exceeds, or which by virtue of
any optional extensions may exceed, 9 months without the consent of the Owners, such
consent not to be unreasonably withheld;
	 
	 	43.14.3	 	enter into any charter in relation to the Vessel under which more than 2
months’ hire (or the equivalent) is payable in advance unless disclosed to the Owners in
advance;
	 
	 	43.14.4	 	charter the Vessel otherwise than on bona fide arm’s length terms at the
time when the Vessel is fixed;
	 
	 	43.14.5	 	appoint a manager of the Vessel other than an Approved Manager or agree to
any alteration to the terms of an Approved Manager’s appointment without the prior
written consent of the Owners which is not to be withheld or delayed;
	 
	 	43.14.6	 	make any changes relating to the classification or classification society
or manager or operator of the Vessel;
	 
	 	43.14.7	 	de-activate or lay up the Vessel; or
	 
	 	43.14.8	 	put the Vessel into the possession of any person for the purpose of work
being done upon it in an amount exceeding or likely to exceed USD500,000 (or the
equivalent in any other currency) Provided that where the Charterers request the Owners’
consent for the purposes of this Clause 43.14.8 the Owners’ consent shall not be
unreasonably withheld or delayed;






	 	43.15	 	The Charterers shall not create or permit to arise any Security Interest over
the Vessel other than Permitted Security Interests.
	 
	 	43.16	 	The Charterers shall carry on board the Vessel a certified copy of any
mortgage of the vessel that may be entered into by the Owners from time to time as part of
any Financing and place and maintain in a conspicuous place in the navigation room and the
Master’s cabin of the Vessel a framed printed notice stating that the Vessel is mortgaged
by the Owners to the relevant Mortgagee.





44. OWNERS’ UNDERTAKINGS





	 	 	 	The Owners undertake and agree that throughout the Charter Period they will:-
	 
	 	44.1	 	Maintain their separate corporate existence and remain in good standing under
the laws of the Marshall Islands;
	 
	 	44.2	 	Obtain and promptly renew from time to time, and whenever so required, promptly
furnish certified copies to the Charterers of, all such authorisations, approvals, consents
and licences as may be required under any applicable law or regulation to enable the Owners
to perform their obligations under this Charter or as may be required for the validity or
enforceability of this Charter, and the Owners shall in all material respects comply with
the terms of the same;




17









 






	 	44.3	 	Have sufficient title to the Vessel to be able to make it available to the
Charterers on the terms of this Charter, subject to any deficiencies in the title to the
Vessel acquired by the Owners pursuant to the MOA.
	 
	 	44.4	 	Not, unless a Termination Event shall have occurred, disturb or interfere with
the Charterers’ or any permitted sub-charterers quiet and peaceful use, possession and
enjoyment of the Vessel.
	 
	 	44.5	 	Not, during the Charter Period, without the Charterer’s prior written consent
(such consent not to be unreasonably withheld or delayed) effect any mortgage on the Vessel
unless the principal amount of any loan secured by such mortgage is $26,600,000 or less.





45. INDEMNITIES





	 	45.1	 	The Charterers shall on demand indemnify and keep indemnified the Owners, any
Mortgagee and/or their respective officers and members of the management board or
shareholders (the “Indemnified Parties”) against:






	 	45.1.1	 	Any taxes imposed on, or suffered by, the Owners; and
	 
	 	45.1.2	 	All costs, charges, expenses, fees, taxes (including, without limitation,
all costs, charges, expenses, fees and/or taxes to be imposed on the Owners by the
Liberian Ship Registry or other governmental bodies in Liberia and including in relation
to the Owner’s business, profits and any distributions made to its members), losses,
payments, liabilities, penalties, fines, damages or other sanctions of a monetary nature
(collectively, “Losses”) suffered or incurred by the Owners and arising directly or
indirectly in any manner out of the design, manufacture, delivery, non delivery,
purchase, importation, registration, incorporation, ownership, management, chartering,
sub-chartering, possession, control, use, operation, condition, maintenance, repair,
replacement, refurbishment, modification, overhaul, insurance, sale or other disposal,
return or storage of or loss of or damage to the Vessel or otherwise in connection with
the Vessel (whether or not in the control or possession of the Charterers) including any
and all claims in tort or in contract by a sub-charterer of the Vessel or by the holders
of any bills of lading issued by the Charterers or any sub-charterer, provided always
that the indemnity in respect of Losses contained in this Clause 45 shall not extend to
any Losses of the Owners as a consequence of the value of the Vessel at the end of the
Charter Period unless such Losses shall have resulted from any breach by the Charterers
of the terms of the Charter; and
	 
	 	45.1.3	 	All Losses suffered or incurred by the Owners which result directly or
indirectly from documented claims which may at any time be made on the ground that any
design, article or material of or in the Vessel or the operation or use thereof
constitutes or is alleged to constitute an infringement of patent or copyright or
registered design or other intellectual property right or any other right whatsoever;
and
	 
	 	45.1.4	 	All Losses suffered or incurred by the Owners in preventing or attempting
to prevent the arrest, confiscation, seizure, taking in execution, impounding,
forfeiture or detention of the Vessel, or in securing the release of the Vessel
therefrom, and




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	 	45.1.5	 	All Losses suffered or incurred by the Owners, any Mortgagee and any other
Lenders with respect to or as a direct result of the presence, escape, seepage,
spillage, leaking, discharge or migration from the Vessel of oil or any other hazardous
substance, including without limitation, any claims asserted or arising under the US Oil
Pollution Act of 1990 or the US Comprehensive Environmental Response Compensation and
Liability Act of 1980 (as either may be amended and/or re-enacted from time to time
hereafter) or similar legislation in any other jurisdiction, regardless of whether or
not caused by or within the control of the Charterers and regardless of whether or not
caused as a consequence of any deficiencies in the technical condition of the Vessel on
the Delivery Date; and
	 
	 	45.1.6	 	All Losses suffered or incurred by the Owners and/or its respective
officers or members of the management board or shareholders or members and/or any
Mortgagee and any other Lenders, as a consequence of any violation by the Charterers or
any sub-charterer of U.S. law or any other laws pursuant to which the Vessel and/or her
trading or operations shall be subject from time to time;
	 
	 	 	 	provided always that the Charterers shall be entitled to take, in the name of the
Owners, such reasonable action as the Charterers see fit to defend or avoid any
Losses or to recover the same from any third party but subject to the Charterers
first ensuring that the Owners are indemnified and secured to their satisfaction
against all Losses thereby incurred or to be incurred.






	 	45.2	 	If, under any applicable law, whether as a result of judgment against the
Charterers or the liquidation of the Charterers or for any other reason, any payment to be
made by the Charterers under or in connection with their Charter is made or is recovered in
a currency other than the currency (the “currency of obligation”) in which it is payable
pursuant to this Charter then, to the extent that the payment (when converted into the
currency of obligation at the rate of exchange on the date for the determination of
liabilities permitted by the applicable law) falls short of the amount unpaid under this
Charter, the Charterers shall as a separate and independent obligation, fully indemnify the
Owners against the amount of the shortfall; and for the purposes of this sub-clause “rate
of exchange” means the best rate at which the Owners are able on the relevant date to
purchase the currency of obligation with the other currency.
	 
	 	45.3	 	The indemnities contained in this Clause 45 shall survive any termination or
other ending of this Charter and any breach of, or repudiation or alleged repudiation by,
the Charterers or the Owners of this Charter, but the indemnities contained in this Clause
45 shall not apply if and to the extent that the relevant cost, charge, expense or Losses
arise as a result of (i) any act, neglect or default of or by any person (other than the
Charterers) subsequent, notwithstanding the provisions of this Charter or the other
arrangements agreed between the Owners and the Charterers, to any redelivery of the Vessel
to the Owners or any other provision of this Charter or (ii) any fraudulent or wilful
misconduct, recklessness or gross and culpable negligence of the Indemnified Party claiming
such indemnity. All moneys payable by the Charterers under this Clause 45 shall be paid on
demand.





46. TOTAL LOSS





	 	46.1	 	For the purposes of this Charter:




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	 	46.1.1	 	“Total Loss” means:






	 	(a)	 	an actual, constructive, arranged, agreed or compromised total loss
of the Vessel; and
	 
	 	(b)	 	any expropriation, confiscation, requisition or acquisition of the
Vessel, whether for full consideration, a consideration less than its proper
value, a nominal consideration or without any consideration, which is effected
by any government or official authority or by any person or persons claiming to
be or to represent a government or official authority (excluding a requisition
for hire for a fixed period not exceeding 1 year without any right to an
extension) unless it is within 1 month redelivered to the full control of the
Owners or the Charterers (as the case may be); and
	 
	 	(c)	 	any arrest, capture, seizure or detention of the Vessel (including
any hijacking or theft) unless it is within 1 month redelivered to the full
control of the Owners or the Charterers (as the case may be).






	 	46.1.2	 	“Total Loss Date” means:






	 	(a)	 	in the case of an actual loss of the Vessel, the date on which it
occurred or, if that is unknown, the date when the Vessel was last heard of;
	 
	 	(b)	 	in the case of a constructive, compromised, agreed or arranged total
loss of the Vessel, the earliest of:






	 	(i)	 	the date on which a notice of abandonment is given to the
insurers; and
	 
	 	(ii)	 	the date of any compromise, arrangement or agreement made by
or on behalf of the Owners with the Vessel’s insurers in which the
insurers agree to treat the Vessel as a total loss; and






	 	(c)	 	in the case of any other type of total loss, on the date (or the
most likely date) on which it appears to the Owner that the event constituting
the total loss has occurred;






	 	46.2	 	If the Vessel shall become a Total Loss, Charter Hire shall cease to accrue on
the earlier of (i) the date on which the Owners receive the insurance proceeds payable by
the insurer consequent upon the Total Loss and (ii) 120 days after the Total Loss Date.
	 
	 	46.3	 	In the event that, following the occurrence of a Total Loss, the Owners (or any
Mortgagee or whomsoever shall be named as loss payee) shall, for any reason, not have
received the applicable Total Loss Amount in full out of the insurance proceeds or
compensation amounts (if any) within one hundred and twenty (120) days (or such longer
period as the Owners may agree) following the Total Loss Date, the Charterers shall
thereupon forthwith on demand pay to the Owners (or any Mortgagee or whomsoever shall be
named as loss payee) such amount as the Owners shall specify in writing to the Charterers,
to be equal to the amount by which the applicable Total Loss Amount exceeds the amount of
insurance proceeds or compensation moneys (if any) received by the Owners (or any Mortgagee
as assignee) prior to such payment by the Charterers. Upon receipt by the Owners of all
amounts payable pursuant to this Clause 46.3 or otherwise under the Charter, the Owners
shall assign to the Charterers all of their rights and interests in respect of any claims
for the Total Loss of the Vessel.




20









 






	 	46.4	 	In the event that the amount of the insurance proceeds or compensation moneys
(if any) which the Owners (or the Mortgagee as assignee) receive and are entitled to retain
exceeds the Total Loss Amount the Owners shall thereupon forthwith pay to the Charterers
the amount of any excess.





47. INSURANCES





	 	47.1	 	During the Charter Period the Vessel shall be kept insured by the Charterers
against






	 	(a)	 	fire and usual marine risks (including hull and machinery and excess
risks);
	 
	 	(b)	 	war risks;
	 
	 	(c)	 	protection and indemnity risks; and
	 
	 	(d)	 	any other risks against which the Owners consider, having regard to
practices and other circumstances prevailing at the relevant time, it would in
the opinion of the Owners be reasonable for the Charterers to insure and which
are specified by the Owners by notice to the Charterers.






	 	47.2	 	The Charterers undertake with the Owners to comply with the following
provisions of this Clause 47.2 at all times during the Charter Period:






	 	47.2.1	 	all insurances to be taken out for the Vessel shall be effected and
maintained by the Charterers:






	 	(a)	 	in the name of the Owners, the Charterers, any Mortgagee and
otherwise as the Owners and the Charterers may agree;
	 
	 	(b)	 	in an amount of marine and war risks cover of no less than the
higher of (i) the market value of the Vessel from time to time, and (ii) 120%
of the amount referred to in Schedule 2, paragraph (a) and (b) as being
applicable to the date of the placing of the relevant insurance (or such other
amount as may be agreed from time to time between the Charterers and the Owner,
or any Mortgagee (in its capacity as mortgagee and loss payee));
	 
	 	(c)	 	so that the protection and indemnity risks are covered through a
member of the International Group of Protection and Indemnity Associations or
other such association as the Owners agree and include, in the case of oil
pollution liability risks, cover for an aggregate amount equal to the highest
level of cover available from to time under the basic P&I Club entry policy
(currently one billion United States Dollars);
	 
	 	(d)	 	upon such terms and by policies and/or entries in such forms as
shall from time to time be approved in writing by the Owners and any Mortgagee;
and
	 
	 	(e)	 	through such brokers (hereinafter called the “approved brokers”) and
with such insurance companies, underwriters, war risks and protection and
indemnity associations or insurers (hereinafter called the “approved insurers”)
as shall, in each case, from time to time be approved in writing by the Owners
and any Mortgagee;






	 	47.2.2	 	all such insurances shall be renewed by the Charterers at least fourteen
(14) days before the relevant policies or contracts expire and the approved brokers
and/or the approved insurers shall promptly confirm in writing to the Owners and any
Mortgagee as and when each such renewal is effected and, in the event of any




21









 






	 	 	 	renewal not being effected by the Charterers as aforesaid, shall notify the Owners
and any Mortgagee forthwith;
	 
	 	47.2.3	 	the Charterers shall pay punctually all premiums, calls, contributions or
other sums payable in respect of all such insurances and produce all relevant receipts
when so required by the Owners or any Mortgagee;
	 
	 	47.2.4	 	the Charterers shall arrange for the execution of such guarantees as may
from time to time be required by any protection and indemnity or war risks association;
	 
	 	47.2.5	 	the Charterers shall procure that the policies and/or entries in respect
of the insurances against marine and war risks are, in each case, endorsed with the
interest of the Owners and any Mortgagee to the effect that:






	 	(a)	 	payment of a claim for a Total Loss of the Vessel will be made to
the Mortgagee, if any, in its capacity as mortgagee and loss payee (until such
mortgage has been discharged, after which to the Owners).
	 
	 	(b)	 	payment of a claim in respect of a Major Casualty shall be made to
the Mortgagee, if any, until such mortgage has been discharged, after which to
the Owners, and the Owners shall pay such sums to the Charterers as and when
the relevant repairs on the Vessel has been completed and paid for.
	 
	 	(c)	 	payment of a claim which is not a Major Casualty shall be paid (i)
if at the time of the payment the relevant repairs on the Vessel have not been
completed and paid for, to the Owners, or (ii) if the relevant repairs on the
Vessel have been completed and paid for, to the Charterers.






	 	47.2.6	 	the Charterers shall procure that the entries or insurances in respect of
protection and indemnity risks shall provide for moneys payable thereunder to be paid
either:






	 	(a)	 	to the person by whom was incurred the liability in respect of which
the relevant money was paid or, unless and until the Owners or any Mortgagee
shall direct (following the occurrence of any Termination Event) that they
shall be paid to the Owners or such Mortgagee, whereupon they shall be so paid;
	 
	 	(b)	 	to the Charterers in reimbursement for any payment properly made by
the Charterers to a third party;






	 	47.2.7	 	the Charterers shall procure that the interest of the Owners as owner of
the Vessel and any Mortgagee as mortgagee of the Vessel and as loss payee of all
insurance proceeds shall be recorded on all policies and shall be confirmed to the
Owners and any Mortgagee in conformity with applicable market practice and with their
requirements;
	 
	 	47.2.8	 	the Charterers shall not do any act or permit or allow any act to be done
whereby any insurance required as aforesaid shall or may be suspended, impaired or
become defective;
	 
	 	47.2.9	 	the Charterers shall apply all such sums receivable in respect of the
insurances as are paid to the Charterers in accordance with the terms of this Charter
for the purpose of making good the loss and fully repairing all damage in respect
whereof the insurance moneys shall have been received; and




22









 






	 	47.2.10	 	the Charterers shall not make any alteration to any of the terms of the
instruments of insurance referred to in this Clause without the prior written approval
of the Owners and, if applicable, the Mortgagee and shall not make, do, consent or agree
to any act or omission which would or might render any such instrument of insurance
invalid, void, voidable or unenforceable or render any sum payable thereunder repayable
in whole or in part.
	 
	 	47.2.11	 	the Charterers shall ensure that all approved brokers provide the Owners
with pro forma copies of all policies relating to the insurances which they are to
effect or renew and of a letter or letters or undertaking in a form required by the
Owners and including undertakings by the approved brokers that:






	 	(a)	 	they will have endorsed on each policy, immediately upon issue, a
loss payable clause and a notice of assignment;
	 
	 	(b)	 	they will hold such policies, and the benefit of such insurances, to
the order of the Owners in accordance with the said loss payable clause;
	 
	 	(c)	 	they will advise the Owners immediately of any material change to
the terms of the insurances;
	 
	 	(d)	 	they will notify the Owners, not less than fourteen (14) days before
the expiry of the insurances, in the event of their not having received notice
of renewal instructions from the Charterers or its agents and, in the event of
their receiving instructions to renew, they will promptly notify the Owners of
the terms of the instructions; and
	 
	 	(e)	 	they will not set off against any sum recoverable in respect of a
claim relating to the Vessel under such insurances any premiums or other
amounts due to them or any other person in respect of any vessel other than the
Vessel, they waive any lien on the policies, or any sums received under them,
which they might have in respect of such premiums or other amounts, and they
will not cancel such insurances by reason of non-payment of such premiums or
other amounts, and will arrange for a separate policy to be issued in respect
of the Vessel forthwith upon being so requested by the Owners.






	 	47.2.12	 	the Charterers shall ensure that all policies relating to insurances are
deposited with the approved brokers through which the insurances are effected or
renewed.
	 
	 	47.2.13	 	the Charterers acknowledge that the Owners or their Mortgagee may from
time to time or at all times during the Charter Period maintain and renew a mortgagee’s
interest marine insurance (including ‘additional perils’) in such amount as may be
required by the Owners or their Mortgagee and on such terms, through such insurers and
generally in such manner as the Owners or their Mortgagee may from time to time consider
appropriate. The Charterers shall fully indemnify the Owners in respect of all premia
and other expenses which are incurred by the Owners or their Mortgagee in connection
with or with a view to effecting, maintaining or renewing any such insurance or dealing
with, or considering, any matter arising out of any such insurance.
	 
	 	47.2.14	 	the Charterers shall, in addition to the foregoing, ensure that the
insurances always comply with the requirements of any Financial Instrument and, if there
is any conflict between the terms of this Clause 47 and the insurance requirements of
any




23









 






	 	 	 	Financial Instrument, the insurance requirements of the Financial Instrument shall
prevail.





48. SECURITY





	 	48.1	 	As security for their due and punctual performance under this Charter, the
Charterers hereby agree that:






	 	48.1.1	 	they will:






	 	(a)	 	assign to the Owners all of their rights, title and interests in and
to (i) all policies and contracts of insurance (which expression includes all
entries of the Vessel in protection and indemnity or war risks associations)
which are from time to time taken out or entered into by the Charterers in
respect of the Vessel pursuant to this Charter and (where the context permits)
all benefits thereof, including all claims of any nature and returns of
premium, (ii) the Earnings (iii) any charters, pooling agreements or contracts
of employment in respect of the Vessel that have a possible term of nine (9)
months or more, including the Approved Time Charter (and any guarantee thereof)
(the “Charterers Assignment”) and (iv) any post delivery Vessel warranties by
the Builder in favour of the Charterer (in its capacity as buyer under the
Shipbuilding Contract) they will execute the Charterers Assignment in such form
as the Owners may reasonably request and will procure that any affected
charterer or other counterparty consents to the Owners having step in rights in
relation to any assigned charter, pooling agreement or contract of employment
on terms acceptable to Owner; and
	 
	 	(b)	 	execute an account security deed in respect of the Charterers
Earnings Account in favour of the Owners (the “Charterers Account Pledge”) in
such form as the Owners may reasonably request;






	 	48.1.2	 	they will procure the issue by the Charter Guarantor of a guarantee (the
“Charter Guarantee”) in favour of the Owners and on such terms as the Owner may
require, guaranteeing the performance by the Charterers of all their obligations under
this Charter and any other agreements made between the Owners and the Charterers in
such form as the Owners may reasonably request;
	 
	 	48.1.3	 	they will procure the grant by the Shareholder of the Share Pledge on
such terms as the Owner may require.






	 	48.2	 	The Charterers acknowledge that the Owners may assign all of their rights and
benefits under the Transaction Documents (or any of them) to any Lenders or Mortgagee from
time to time as security for the due and punctual performance by the Owners of any
obligations they assume in relation to any Financing and Charterers agree to provide such
cooperation as Owners may require, including executing and delivering such documents as
Owners or its Mortgagee may require including, without limitation, executing
acknowledgements of notices of assignment and, if required, entering in to a tripartite
agreement pursuant to which Charterers agree directly with any Mortgagee to perform such
operating, maintenance and insurance covenants in relation to the Vessel as the Owner is
itself required to perform pursuant to the Financial Instrument, and to assign its interest
in the insurances directly to such Mortgagee.




24









 











49. TERMINATION EVENTS





	 	49.1	 	Each of the following events shall be a “Termination Event” for the purposes of
this Charter:-






	 	49.1.1	 	If the Charterers fail to enter into, deliver the Vessel under or perform
their obligation under the Approved Time Charter in accordance with Clause 43.2; or
	 
	 	49.1.2	 	If any instalment of Charter Hire or any other sum payable by the
Charterers under any Transaction Document shall not be paid within five (5) Banking
Days of its due date or (in the case only of sums expressed to be payable on demand)
within five (5) Banking Days following the date of demand therefore; or
	 
	 	49.1.3	 	If the Charterers shall at any time fail to observe or perform any other
obligation under any Transaction Document and such failure to observe or perform any
such obligation is either not remediable or prejudices the Vessel’s insurance cover.
	 
	 	49.1.4	 	If the Charterers shall at anytime fail to observe or perform any other
obligation under any Transaction Document which is remediable (and does not prejudice
the Vessel’s insurance cover) but is not remedied within thirty (30) Banking Days of
receipt by such party of written notice from the Owners notifying that party of such
failure and requesting remedial action; or
	 
	 	49.1.5	 	If an event of default (however described) occurs in respect of any
Financial Indebtedness of any Group Company, and such default is either not remediable
or is remediable but is not remedied within fifteen (15) days of receipt by such party
of written notice from the relevant creditor or the Owners demanding remedial action
(whichever is received earlier); or
	 
	 	49.1.6	 	Any of the following occurs in relation to the Charterers, the Shareholder
or the Charter Guarantor:






	 	(a)	 	such party becomes unable to pay its debts as they fall due; or
	 
	 	(b)	 	any assets of such party are subject to any form of post-judgement
execution, attachment, arrest, sequestration or distress in respect of a sum
of, or sums aggregating, $100,000 or more or the equivalent in another
currency; or
	 
	 	(c)	 	any administrative or other receiver is appointed over any asset of
such party unless such appointment is being contested in good faith and on
substantial grounds and the appointment is withdrawn within 21 days; or
	 
	 	(d)	 	such party makes any formal declaration of bankruptcy or any formal
statement to the effect that it is insolvent or likely to become insolvent, or
a winding up or administration order is made in relation to such party, or the
members or directors of such party pass a resolution to the effect that it
should be wound up, placed in administration or cease to carry on business,
save that this paragraph does not apply to a fully solvent winding up of such
party which is, or is to be, effected for the purposes of an amalgamation or
reconstruction previously approved by the Owners and effected not later than 3
months after the commencement of the winding up; or
	 
	 	(e)	 	a petition is presented in any Pertinent Jurisdiction for the
winding up or administration, or the appointment of a provisional liquidator,
of such party unless the petition is being contested in good faith and on
substantial




25









 






	 	 	 	grounds and is dismissed or withdrawn within 30 days of the presentation of
the petition; or
	 
	 	(f)	 	such party petitions a court, or presents any proposal for, any form
of judicial or non-judicial suspension or deferral of payments, reorganisation
of its debt (or certain of its debt) or arrangement with all or a substantial
proportion (by number or value) of its creditors or of any class of them or any
such suspension or deferral of payments, reorganisation or arrangement is
effected by court order, contract or otherwise; or
	 
	 	(g)	 	any meeting of the members or directors of such party is summoned
for the purpose of considering a resolution or proposal to authorise or take
any action of a type described in paragraphs (c), (d), (e) or (f); or
	 
	 	(h)	 	in a Pertinent Jurisdiction other than England, any event occurs or
any procedure is commenced which is similar to any of the foregoing; or






	 	49.1.7	 	The Charterers, the Shareholder or the Charter Guarantor cease or suspend
carrying on their business or a part of their business which is material in the
context of this Agreement; or
	 
	 	49.1.8	 	If the Charter Guarantor, at any time during the Charter Period, shall
breach any provision of the Charter Guarantee, including (but not limited to) any
failure to maintain at all times the financial covenants contained therein; or
	 
	 	49.1.9	 	If the Shareholder, at any time during the Charter Period, shall breach
any provision of the Share Pledge; or
	 
	 	49.1.10	 	If either (a) the Charterers fail at any time to effect or maintain any
insurances required to be effected and maintained under this Charter, or any insurer
shall avoid or cancel any such insurances (other than where the relevant avoidance or
cancellation results from an event or circumstances outside the reasonable control of
the Charterers and the relevant insurances are reinstated or re-constituted in a
manner meeting the requirements of this Charter within seven (7) days of such
avoidance or cancellation), or the Charterers shall commit any breach of or make any
misrepresentation in respect of any such insurances the result of which is to entitle
the relevant insurer to avoid the policy or otherwise to be excused or released from
all or any of its liability thereunder to the Owners (unless the relevant insurer has
expressly and irrevocably waived the breach or misrepresentation in question prior to
exercising such right), or (b) any of the said insurances shall cease for any reason
whatsoever to be in full force and effect (other than where the reason in question is
outside the reasonable control of the Charterers and the relevant insurances are
reinstated or re-constituted in a manner meeting the requirements of this Charter
within seven (7) days of such cessation); or
	 
	 	49.1.11	 	If any representation or warranty of the Charterers, the Shareholder or
the Charter Guarantor in connection with any Transaction Document or in any document
or certificate furnished to the Owners in connection therewith shall prove to have
been untrue, inaccurate or misleading in any material respect, when made; or
	 
	 	49.1.12	 	If the Vessel is arrested or detained (other than for reasons solely
attributable to the Owners) and such arrest or detention is not lifted within fourteen
(14) days (or




26









 






	 	 	 	such longer period as the Owners shall agree in the light of all the circumstances);
or
	 
	 	49.1.13	 	If there occurs a material breach of any obligation of the Charterers,
the Shareholder or the Charter Guarantor in any other document or agreement made or to
be made between the Owners and the Charterers, the Shareholder or the Charter
Guarantor in connection with the Vessel and which is not specifically mentioned in
this Clause 49; or
	 
	 	49.1.14	 	For any reason whatsoever, the Vessel ceases to be managed by an
Approved Manager on terms in all respects approved by the Owners or is at any time
managed by a person who is not an Approved Manager; or
	 
	 	49.1.15	 	An Approved Manager fails to comply with any provision of the management
agreement pursuant to which it manages the Vessel or with any duties which are
customary in accordance with the ship management industry’s common practice; or
	 
	 	49.1.16	 	An Approved Manager fails to comply with any provision of the ISM Code,
ISPS Code, any Environmental Laws or any other laws or regulations relating to the
Vessel or its operation; or
	 
	 	49.1.17	 	If the Charterers at any time fail to observe or perform any obligation
under the Option Agreement (other than a payment obligation falling within Clause
49.1.2) and such failure to observe or perform any such obligation is not remediable
or is remediable but is not remedied within ten (10) Banking Days of receipt by the
Charterers of written notice from the Owners notifying the Charterers of such failure
and requesting remedial action; or
	 
	 	49.1.18	 	If it appears to the Owners that, without their prior consent, the
Charterer has ceased to be wholly owned, legally and beneficially, by the Shareholder
or that the Shareholder has ceased to be wholly owned, legally and beneficially, by
the Charter Guarantor or that a change has occurred or probably has occurred after the
date of this Charter in the ultimate beneficial ownership of any of the shares in the
Shareholder or the Charter Guarantor or in the ultimate control of the voting rights
attaching to any of those shares; or
	 
	 	49.1.19	 	If any provision which the Owners may reasonably consider material of
any Transaction Document or of the Approved Time Charter proves to have been or
becomes invalid or unenforceable, or a Security Interest created by any Transaction
Document proves to have been or becomes invalid or unenforceable or such a Security
Interest proves to have ranked after, or loses its priority to, another Security
Interest or any other third party claim or interest; or
	 
	 	49.1.20	 	The security constituted by any Transaction Document is in any way
imperilled or in jeopardy; or
	 
	 	49.1.21	 	It becomes unlawful in any Pertinent Jurisdiction or impossible (a) for
the Charterers, the Shareholder or the Charter Guarantor to discharge any liability
under any Transaction Document or to comply with any other obligation which the Owners
consider material under such documents, or (b) for the Owners to exercise or enforce
any right under, or to enforce any Security Interest created by any Transaction
Document; or




27









 






	 	49.1.22	 	Any official consent necessary to enable the Charterers to own, operate
or charter the Vessel or to enable the Charterers, the Shareholder or the Charter
Guarantor to comply with any provision which the Owners consider material of any
Transaction Document or of the Approved Time Charter is not granted, expires without
being renewed, is revoked or becomes liable to revocation or any condition of such a
consent is not fulfilled; or
	 
	 	49.1.23	 	The Charterers are in breach of their obligations under the Approved
Time Charter or, for any reason other than default by the Time Charterer, the Approved
Time Charter is cancelled or otherwise terminated before the end of the
81st month following the Delivery Date; or
	 
	 	49.1.24	 	The Time Charterer is in breach of its obligations under the Approved
Time Charter and such default is not remedied within 30 days or the Approved Time
Charter is cancelled or otherwise terminated on the basis of default by the Time
Charterer before the end of the 81st month following the Delivery Date and
a substitute time charter is not entered into within 30 days of such termination or
cancellation on terms acceptable to and with a counterparty acceptable to the Owners;
or
	 
	 	49.1.25	 	Any other event occurs or any other circumstances arise or develop
including, without limitation:






	 	(a)	 	a change in the financial position, state of affairs or prospects of
the Charterers or the Charter Guarantor; or
	 
	 	(b)	 	any accident or other incident (other than a Total Loss in respect
of which the Owners (or any assignee) receive the Total Loss Amount in full
within 120 days of the Total Loss Date in accordance with Clause 46.3)
involving the Vessel,






in the light of which the Owners reasonably consider that there is a significant
risk that:




	 	(i)	 	the Charterers are, or will later become, unable to discharge
their liabilities under any Transaction Document as they fall due; or
	 
	 	(ii)	 	the Charter Guarantor is, or will later become, unable to
discharge its obligations under the Charter Guarantee.





50. OWNERS’ RIGHTS ON TERMINATION EVENT





	 	50.1	 	At any time after a Termination Event shall have occurred and be continuing,
the Owners may, by notice to the Charterers on such date as the Owners shall specify,
terminate the chartering by the Charterers of the Vessel under this Charter, whereupon the
Vessel shall no longer be in the possession of the Charterers with the consent of the
Owners, the Option Agreement shall lapse and if the Call Option or Put Option has been
exercised but the Vessel has not been delivered to Charterers or their nominee, any
obligation to deliver the Vessel pursuant to such option shall be null and void.
	 
	 	50.2	 	On or at any time after termination of the chartering by the Charterers of the
Vessel pursuant to Clause 50.1 hereof the Owners shall be entitled (but not bound and
without prejudice to the Charterers’ obligations under Clause 52 hereof) to retake
possession of the Vessel, the Charterers hereby agreeing that the Owners, for that purpose,
may put into force and exercise all their rights and entitlements at law and may enter upon
any




28









 






	 	 	 	premises belonging to or in the occupation or under the control of the Charterers where
the Vessel may be located.
	 
	 	50.3	 	If the Owners pursuant to Clause 50.1 hereof give notice to terminate the
chartering by the Charterers of the Vessel, the Charterers shall pay to the Owners on the
date of such termination or such later date as the Owners shall specify the aggregate of:-






	 	50.3.1	 	all Charter Hire due and payable, but unpaid, under this Charter to (and
including) the Termination Date together with any default interest accrued thereon
pursuant to Clause 38.5 hereof from the due date for payment thereof to the Termination
Date; and
	 
	 	50.3.2	 	any sums, other than Charter Hire, due and payable, but unpaid, under this
Charter together with any default interest accrued thereon pursuant to Clause 38.5 to
the Termination Date; and
	 
	 	50.3.3	 	all costs, expenses, damages and losses incurred by the Owners as a
consequence of this Charter having terminated prior to the expiry of the agreed Charter
Period (including, but not limited to, expenses incurred in recovering possession of,
and in moving, laying-up, manning, insuring and maintaining, the Vessel and in carrying
out any works or modifications required to cause the Vessel to conform with the
provisions of this Charter); and
	 
	 	50.3.4	 	the Termination Sum applicable on the Termination Date.






	 	50.4	 	Provided that the Charterers have paid the Termination Sum within 30 days of
its due date together with any other amounts due under the Transaction Documents, including
any default interest payable under Clause 38.5, the Owners shall transfer the Vessel to the
Charterers on an “as is where is” basis for USD 10. If the Termination Sum and such other
amounts are not paid within 30 days of the Termination Sum becoming due the Termination Sum
and such other moneys shall remain due but the Owners shall not be obliged to transfer the
Vessel to the Charterer or to account to the Charterer for any proceeds of sale of the
Vessel save to the extent provided in Clause 50.8.
	 
	 	50.5	 	Any amount due to the Owners under Clause 50.3 hereof which is not paid on the
Termination Date shall incur default interest pursuant to Clause 38.5 hereof (before and
after any relevant judgment or any winding-up of the Charterers) from the Termination Date
or (as the case may be) from the date of any demand for payment to the date of the Owners’
actual receipt thereof.
	 
	 	50.6	 	Following termination of this Charter pursuant to Clause 50.1 the Charterers
shall continue to comply with their obligations under this Charter, including (without
limitation) the payment of Charter Hire, until the Vessel is redelivered to the Owners in
accordance with Clause 52.
	 
	 	50.7	 	Following the occurrence of a Termination Event, the Charterers shall, at the
request of the Owners, terminate the management arrangements in respect of the Vessel at
Charterer’s cost.
	 
	 	50.8	 	If the Termination Sum together with any other amounts due under the
Transaction Documents, including any default interest payable under Clause 38.5, is not
paid within 30 days of the date on which the Termination Sum becomes due, the Owners shall
have no obligation to transfer the Vessel to the Charterer, even if such sums are
subsequently paid and the Charter shall have no claim on the Vessel under or arising out of
any Transaction Document. However, the Owners shall be liable to pay to the Charterer by




29









 






	 	 	 	way of rebate of hire an amount equal to the lower of the Vessel’s value and the
Termination Sum payable hereunder (such lower amount being the “Rebate”) in accordance
with the following:






	 	(a)	 	The Owners may at any time elect for the Fair Market Value as at the date
of such election to be used to establish the Vessel’s value for the purposes of this
Clause 50.8.
	 
	 	(b)	 	If the Owners have not, within 6 months of the Termination Date, either
sold the Vessel (and received the net proceeds of sale) or made an election under
(a) above, they shall be deemed to have made such an election on such date; and
	 
	 	(c)	 	If, prior to making an election under (a) or (b) above, the Owners sell
the Vessel and receive the net proceeds of sale, the Vessel value for the purposes
of this Clause shall be the net proceeds of sale.






	 	 	 	The Rebate, if any, established in accordance with the above shall be applied first by
way of set-off against any amount then due under the Charter, whether by way of
Termination Sum, default interest or other amount, and any balance shall be paid to the
Charterer.
	 
	 	50.9	 	Following a Termination Event pursuant to Clause 49.1.13 or 49.1.14, the
Charterers shall replace the Approved Manager with such manager, and upon such terms, as
the Owners may reasonably require.
	 
	 	50.10	 	If a notice has been served under Clause 50.1, the Owner shall be entitled
then or at any later time or times:






	 	50.10.1	 	to exercise, to the exclusion of the Charterer, the powers possessed by it
as owner of the Ship conferred by the law of any country or territory in which the
Vessel is physically present or deemed to be sited the courts of which have or claim any
jurisdiction in respect of the Charterer or the Vessel;
	 
	 	50.10.2	 	to take possession of the Vessel whether actually or constructively and/or
otherwise to take control of the Vessel wherever the Vessel may be and cause the
Charterer or any other person in possession of the Vessel forthwith upon demand to
surrender the Vessel to the Owner without legal process and without the Owner being
liable for any losses thereby caused or to account to the Charterer in connection
therewith;
	 
	 	50.10.3	 	to collect, recover and give a good discharge for any moneys or claims
arising in relation to the Vessel and to permit any brokers through whom collection or
recovery is effected to charge the usual brokerage therefor;
	 
	 	50.10.4	 	to take over or commence or defend (if necessary using the name of the
Charterer) any claims or proceedings relating to, or affecting, the Vessel which the
Owner may think fit and to abandon, release or settle in any way any such claims or
proceedings; and
	 
	 	50.10.5	 	generally, to enter into any transaction or arrangement of any kind and to
do anything in relation to the Vessel which the Owner may think fit.






	 	50.11	 	For the purpose of securing the Owner’s interest in the Vessel and the due
and punctual performance of the Charterer’s obligations to the Owner under this Charter
and every other Transaction Document, the Charterer irrevocably and by way of




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	 	 	 	security appoints the Owner its attorney, on behalf of the Charterer and in its name or
otherwise, to execute or sign any document and do any act or thing which the Charterer
is obliged to do under any Transaction Document.
	 
	 	50.12	 	For the avoidance of doubt and without limiting the generality of Clause
50.11, it is confirmed that it authorises the Owner to execute on behalf of the Charterer
a document ratifying by the Charterer any transaction or action which the Owner has
purported to enter into or to take and which the Owner considers was or might have been
outside his powers or otherwise invalid.
	 
	 	50.13	 	The Owner may sub delegate to any person or persons all or any of the powers
(including the discretions) conferred on the Owner by Clauses 50.11 and/or 50.12, and may
do so on terms authorising successive sub delegations.





51. TERMINATION ON EXERCISE OF PUT OR CALL OPTION





	 	51.1	 	In the event that Owners exercise their rights under Clause 4 of the Option
Agreement or the Charterers exercise their rights under Clause 3 of the Option Agreement,
the Vessel shall be redelivered to the Owners under this Charter immediately prior to the
delivery of the Vessel to the Charterers pursuant to the Option, and this Charter shall
terminate upon such redelivery.





52. REDELIVERY





	 	52.1	 	In the event that the Vessel is to be redelivered to the Owners under this
Charter other than in the circumstances set out in Clause 51, the Vessel shall be
redelivered by the Charterers safely afloat on not less than 5 running days notice at a
safe and accessible port worldwide within IWL and excluding any war zone and in the
condition in which the Vessel is required to be maintained pursuant to this Charter, in
class free from recommendations or damage of any kind.
	 
	 	52.2	 	In the event that the Charterer has not served notice before the end of the
81st month of the Charter Period to the effect that it intends to exercise its
purchase option under the Option Agreement, Owner shall be free to market the Vessel for
sale during the remaining Charter Period and Charterer shall at all reasonable times
requested by Owner, facilitate inspection of the Vessel by potential buyers, subject to the
requirements of the Vessel’s trading schedule.





53. FEES AND EXPENSES





	 	53.1	 	Each party shall bear the cost of its own fees and expenses (including but not
limited to legal fees and expenses) incurred by in connection with the negotiation,
preparation and execution of the Transaction Documents.





54. COMMUNICATION





	 	54.1	 	Except as otherwise provided for in this Charter, all notices or other
communications under or in respect of this Charter to either party hereto shall be in
writing and shall be made or given to such party at the postal address, e-mail address or
facsimile number appearing below (or at such other postal address, e-mail address or
facsimile number as such party may hereafter specify for such purposes to the other by
notice in writing):-




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	 	54.1.1	 	In the case of the Owners:




Endurance Shipping LLC

c/o Northern Fund Management America LLC

One Stamford Landing

62 Southfields Avenue Suite 212,

Stamford, CT 06902

USA





					
	 	 	Attn:	 	Katie Furman

Telephone No.: +1 203 487 3434

Telefax No.: +1 203 487 3435

E-mail:       kfurman@nornav.com






	 	 	 	with a copy to: Nikos Stratis




Telephone No.: +44 20 7193 5023

Telefax No.: +44 20 7245 0900

E-mail:      nstratis@northernshippingfunds.com





	 	54.1.2	 	In the case of the Charterers:




Curby Navigation Limited

c/o: Newlead Bulkers S.A.

83, Akti Miaouli & Flessa Str.

Piraeus, 185 38,

Greece





					
	 	 	Attn:	 	Michael Livanos

Telephone No.: +30 213 014 8251

Telefax No.: +30 213 0148408

E-mail: mlivanos@newleadship.com






	 	 	A written notice given by;






	 	(a)	 	post shall be deemed given on the fifth day following posting by pre-paid
first class post to the addressee;
	 
	 	(b)	 	facsimile shall be deemed given upon appropriate confirmation by the sender’s
equipment; and
	 
	 	(c)	 	e-mail shall be deemed given two hours after despatch.






	 	 	A notice received on a non-Banking Day or after business hours in the place of receipt shall
be deemed to be served on the next following Banking Day in such place.






	54.2	 	All communications and documents delivered pursuant to or otherwise relating to
this Charter shall be in English.





55. CONFIDENTIALITY





	 	 	 	Except if and to the extent required by any applicable law or statute (including US
securities laws, each party hereto agrees to keep strictly confidential and not to
disclose to any other person, other than to affiliates, co-investors, lawyers, surveyors,
agents,




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	 	 	 	potential investors in the Owners or other third parties who need to know such
information in connection with the transaction (and who will be informed to keep such
information confidential herein for the benefit of the other party), any information
regarding the transactions contemplated herein (including that a transaction has been
discussed or agreed) or furnished by or on behalf of the other party in connection with
the transactions contemplated herein.






	 	56.	 	MISCELLANEOUS






	 	56.1	 	No term of this Charter is enforceable under the Contracts (Rights of Third
Parties) Act 1999 by a person who is not a party to it other than any Mortgagee or Lender
and their respective officers or members of the management board or shareholders or
members.
	 
	 	56.2	 	In the event of any amendment or variation to this Charter, no consent shall be
required from any third party expressing to have rights under this Charter.
	 
	 	56.3	 	If there is any conflict between the terms of the additional clauses and the
printed part of this Charter, the terms of the additional clauses shall prevail.
	 
	 	56.4	 	This Charter and the other Transaction Document constitute the whole agreement
between the parties relating to the subject matter hereof and replace any prior
correspondence, documents, agreements, discussions and/or representations in their
entirety, save to the extent that additional documentation or information is required by
the terms of Transaction Document to be provided by one party or its affiliate to the other
party or its affiliate.




This Charter has been entered into as a deed on the date above stated.




	 	 	 

	Executed and delivered as a deed for and on
behalf of the Owners

	 	Executed and delivered as
a deed for and on behalf
of the Charterer






	 	 	 	 	 

	/s/ Nigel Willis
 


	 	 	 	/s/ Panagiotis Peter-Kallifidas  

	 
	 	 	 	 
	In the presence of: /s/ Frederick Phillips

	 	 	 	In the presence of: /s/ Stella Nikolaou
	 
	 	 	 	 
	Name: Frederick Phillips

	 	 	 	Name: Stella Nikolaou
	 
	 	 	 	 
	Occupation: Trainee Solicitor

	 	 	 	Occupation:
	 
	 	 	 	 
	Address: London EC2A 2HB

	 	 	 	Address:






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SCHEDULE 1




CALCULATION OF TERMINATION SUM


The Termination Sum on any relevant date shall be the aggregate of the amount applicable to such
date, as determined in accordance with paragraphs (a) and (b) below:




	 	 	 	 	 
	(a) Date Falling	 	Applicable Amount
	Delivery Date
	 	$	32,000,000	 
	0 - 364 days after Delivery Date
	 	$	32,000,000	 
	12 months after Delivery Date
	 	$	31,300,000	 
	24 months after Delivery Date
	 	$	31,000,000	 
	36 months after Delivery Date
	 	$	30,500,000	 
	48 months after Delivery Date
	 	$	30,000,000	 
	60 months after Delivery Date
	 	$	29,500,000	 
	72 months after Delivery Date
	 	$	29,000,000	 
	84 months after Delivery Date
	 	$	26,500,000	 







	(b)	 	on any other date other than those referred to in (a) above, the applicable amount shall be
the amount set out in respect of the date referred to in (a) which occurs immediately prior to
the Termination Date (the “First Date”) less the difference between such amount and the amount
due in respect of the date referred to in (a) above which occurs immediately after the
Termination Date (the “Second Date”) divided by 365 and multiplied by the number of days
elapsed since the First Date.




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SCHEDULE 2




CALCULATION OF TOTAL LOSS AMOUNT


Following a Total Loss, a Total Loss Amount shall be payable, the amount of which shall be
determined as at the earlier of (i) the date on which the Owners receive the insurance proceeds
payable by the insurer consequent upon the Total Loss and (ii) 120 days after the Total Loss Date
(the “Calculation Date”). The amount payable on any date shall be the amount applicable on the
relevant Calculation Date determined in accordance with paragraphs (a) and (b) below, together with
any amount due under paragraph (c) below:




	 	 	 	 	 
	(a) Total Loss Amount Payment Date	 	Applicable Amount
	Delivery Date
	 	$	32,000,000	 
	0 - 364 days after Delivery Date
	 	$	32,000,000	 
	12 months after Delivery Date
	 	$	31,300,000	 
	24 months after Delivery Date
	 	$	31,000,000	 
	36 months after Delivery Date
	 	$	30,500,000	 
	48 months after Delivery Date
	 	$	30,000,000	 
	60 months after Delivery Date
	 	$	29,500,000	 
	72 months after Delivery Date
	 	$	29,000,000	 
	84 months after Delivery Date
	 	$	26,500,000	 







	(b)	 	where the Calculation Date falls on a date other than those referred to in (a) above, the
applicable amount shall be the amount set out in respect of the date referred to in (a) which
occurs immediately prior to the relevant payment date (the “First Date”) less the difference
between such amount and the amount set out in respect of the date referred to in (a) above
which occurs immediately after the relevant payment date (the “Second Date”) divided by 365
and multiplied by the number of days elapsed since the First Date; and
	 
	(c)	 	The Total Loss Amount payable on any date shall be the applicable amount determined in
accordance with paragraphs (a) and (b) plus:






	 	(i)	 	all sums due and unpaid under the Charter; and
	 
	 	(ii)	 	all costs and expenses relating to the recovery of the insurance proceeds.




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SCHEDULE 3




MANAGER’S UNDERTAKING




			
	To:	 	ENDURANCE SHIPPING LLC (the “Owner”)

c/o Northern Fund Management America LLC

One Stamford Landing

62 Southfields Avenue Suite 212,

Stamford, CT 06902

USA






			
	From:	 	[APPROVED MANAGER’S NAME]

[Address]





[l] 2011



Dear Sirs



m.v. “NEWLEAD ENDURANCE” ex Sungdong Hull No. S-1125 (the “Ship”)




1. BACKGROUND





	 	1.1	 	We understand from Curby Navigation Limited (the “Charterer”) that you have
entered into a bareboat charterparty (the “Charter”) dated [l] 2011 with the
Charterer.
	 
	 	1.2	 	By the terms of the Charter you have agreed (subject as therein provided) to
charter the Ship to the Charterer.
	 
	 	1.3	 	We have been further advised by the Charterer that one of the conditions to you
delivering the ship to the Charterer is that we enter into this Undertaking in your favour
in respect of the Ship.





2. CONFIRMATION OF APPOINTMENT





	 	2.1	 	We confirm that we have been appointed by the Charterer as the [technical]
[commercial] manager of the Ship on the terms of a Management Contract dated [l]
2011 (the “Management Contract”), a copy of which is attached to this Letter. We further
certify that the attached Management Contract is a true and complete copy of such document
and that no addenda or supplements to it exist as at the date of this letter.





3. INTERPRETATION





	 	3.1	 	Words and expressions defined in the Charter shall have the same meanings when
used in this Letter unless the context otherwise requires.




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4. UNDERTAKINGS





	 	4.1	 	In consideration of your granting your approval to our appointment as manager
of the Ship, we irrevocably and unconditionally undertake with you as follows:






	 	4.1.1	 	that all claims of whatsoever nature which we have or may at any time
hereafter have against or in connection with the Ship, the Earnings, the Insurances or
any Requisition Compensation or against the Charterer shall rank after and be in all
respects subordinate to all of your rights and claims;
	 
	 	4.1.2	 	that we shall not institute any legal or quasi-legal proceedings in any
jurisdiction at any time hereafter against or in connection with the Ship, the Earnings
or the Insurances or against the Charterer in any capacity;
	 
	 	4.1.3	 	that we shall not compete with you in a liquidation or other winding-up or
bankruptcy of the Charterer or in any proceedings in connection with the Ship, the
Earnings or the Charterer;
	 
	 	4.1.4	 	that we shall upon your first written request deliver to you all documents
of whatever nature which we hold in connection with the Charterer, the Ship, the
Earnings or the Insurances;
	 
	 	4.1.5	 	that we shall not do or omit to do or cause anything to be done or omitted
which might be contrary to or incompatible with the obligations undertaken by the
Charterer under the Charter and the Transaction Documents; and
	 
	 	4.1.6	 	that we shall sign at your request any consent required by any approved
broker and/or any approved underwriters which they may require so that you can collect
or recover any moneys payable in respect of the obligatory insurances.





5. POWER OF ATTORNEY





	 	5.1	 	Appointment. For the purpose of executing any consents referred to in Clause
4.1.6 above or any release or payment authorities that may be requested by any approved
broker or approved underwriters in connection with the Insurances, we irrevocably appoint
the Owner as our attorney (with full power of substitution and delegation), on our behalf
and in our name or otherwise, to execute or sign any such document, with neither the Owner
nor any substitute or delegate of the Owner being liable or answerable for any losses
which may happen or arise in or about the exercise of the rights, powers and discretions
vested in the Owner under or pursuant to this undertaking.





6. GOVERNING LAW AND JURISDICTION





	 	6.1	 	This letter shall be governed by and construed in accordance with English law.
	 
	 	6.2	 	Subject to 6.4 below, the courts of England shall have exclusive jurisdiction
in relation to all matters which may arise out of or in connection with this letter.
	 
	 	6.3	 	We shall not commence any proceedings in any country other than England in
relation to a matter which arises out of or in connection with this letter.
	 
	 	6.4	 	Paragraph 6.2 is for the exclusive benefit of the Owner, which reserves the
right:




37









 









	 	6.4.1	 	to commence proceedings in relation to any matter which arises out of or in
connection with this letter in the courts of any country other than England and which
have or claim jurisdiction to that matter; and
	 
	 	6.4.2	 	to commence proceedings in the courts of any country or countries
concurrently with or in addition to proceedings in England or without commencing
proceedings in England.






	 	6.5	 	We irrevocably appoint [l] at its registered office for the time being
(presently at [l], England) to act as our agent to receive and accept on our behalf
any process or other document relating to any proceedings in English courts which are
connected with this letter.
	 
	 	6.6	 	Nothing in this paragraph 6 shall exclude or limit any right which the Owner
may have (whether under the law of any country, an international convention or otherwise)
with regard to the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any jurisdiction.
	 
	 	6.7	 	In this paragraph “proceedings” means proceedings of any kind, including an
application for a provisional or protective measure.




This letter of undertaking has been executed as a deed on the date above stated.




______________________


Director

For and on behalf of

[l]



In the presence of:





38