Navios South American Logistics (NSAL) 6-KCurrent report (foreign)

NAVARRA SHIPPING CORPORATION and PELAYO SHIPPING CORPORATION as Borrowers (the “Borrowers”); and

ALPHA BANK S.A. as Bank (the “Bank”).

By a loan agreement dated 28 February 2022, the Bank made available to the Borrowers a loan facility of up to USD7,000,000 upon the terms and for the purposes therein specified.

The Bank has made a request to the Borrowers that the Screen Rate shall be replaced with the applicable new benchmark rate based on SOFR pursuant to Clause 3.7 of the Loan Agreement.

This Agreement sets out the terms and conditions on which the Borrowers agree, with effect on and from the date hereof, at the request of the Bank, to such replacement of the Screen Rate and the consequential amendments to the Loan Agreement.

INTERPRETATION

Defined expressions. Words and expressions defined in the Loan Agreement shall have the same meanings when used in this Agreement unless the context otherwise requires.

Definitions. In this Agreement, unless the contrary intention appears:

Application of construction and Interpretation provisions of Loan Agreement. Clauses 1.3 and 1.4 of the Loan Agreement apply, with any necessary modifications, to this Agreement.

CONDITIONS PRECEDENT

Conditions Precedent. The conditions referred to in Clause 2.1 are that the Bank shall have received the following documents:

Corporate documents

Certified Copies of all documents which evidence or relate to the constitution of each Borrower and the current corporate existence of each Borrower;

Corporate authorities

an original and legalised list of directors and officers of each Borrower specifying the names and positions of such persons, certified by an officer of such Borrower to be true, complete and up to date;

originals and legalised resolutions of the directors of each Borrower approving this Agreement and authorising the execution and delivery hereof and thereof and the performance of the relevant Borrower’s obligations hereunder, additionally certified by an officer of such Borrower as having been duly passed at a duly convened meeting of the directors of that Borrower and not having been amended, modified or revoked and being in full force and effect; and

an original and legalised power of attorney issued by each Borrower pursuant to such resolutions;

Material adverse change

Laws of Marshall Islands: opinion

London agent

Further opinions, etc.

Conditions Subsequent. The Borrowers shall deliver or cause to be delivered to the Bank on, or as soon as practicable after, the Effective Date but in no event later than 10 Banking Days from the date hereof, the following additional documents and evidence:

the process agent acceptance letter referred to in Clause 2.1.6; and

any further opinions, consents, agreements and documents in connection with this Agreement which the Bank may reasonably request referred to in Clause 2.1.7.

REPRESENTATIONS AND WARRANTIES

Repetition of Loan Agreement representations and warranties. Each Borrower represents and warrants to the Bank that the representations and warranties in Clause 7 of the Loan Agreement, updated with appropriate modifications to refer to this Agreement, remain (save as otherwise taken into account by this Agreement) true and not misleading if repeated on the date of this Agreement with reference to the circumstances now existing.

The Borrowers hereby further represent and warrant to the Bank that as at the date of this Agreement:

they have full power to enter into and perform their obligations under this Agreement;

all necessary governmental or other official consents, authorisations, approvals, licences, consents or waivers for the execution, delivery, performance, validity and/or enforceability of this Agreement and all other documents to be executed in connection with the amendments to the Loan Agreement as contemplated hereby have been obtained and will be maintained in full force and effect throughout the Facility Period;

they have taken all necessary corporate and other action to authorise the execution, delivery and performance of their obligations under this Agreement and such other documents to which it is a party and such documents do or will upon execution thereof constitute the valid and binding obligations of the Borrowers enforceable in accordance with their respective terms;

the execution, delivery and performance of this Agreement and all such other documents as contemplated hereby does not and will not during the Facility Period constitute a breach of any contractual restriction or any existing applicable law, regulation, consent or authorisation binding on either Borrower or on any of its property or assets and will not result in the creation or imposition of any security interest, lien, charge or encumbrance (other than under the Security Documents) on any of such property or assets; and

they have fully disclosed in writing to the Bank all facts which they know are material for disclosure to the Bank in the context of this Agreement and all information furnished by the Borrowers or on their behalf relating to their business and affairs in connection with this Agreement was and remains true, correct and complete in all material respects and there are no other material facts or considerations the omission of which would render any such information misleading.

Repetition of representations and warranties

AMENDMENTS TO LOAN AGREEMENT AND OTHER SECURITY DOCUMENTS

Specific amendments to Loan Agreement. With effect on and from the date hereof the Loan Agreement shall be, and shall be deemed by this Agreement to be, amended as follows:

by adding in Clause 1.2 thereof each of the following definitions:

is agreed in writing by the Borrowers and the Bank;

specifies the relevant terms which are expressed in this Agreement to be determined by reference to the Reference Rate Terms; and

is agreed in writing by the Borrowers and the Bank;

specifies a calculation methodology for that rate; and

has been made available to the Borrowers and Bank;

formally designated, nominated or recommended as the replacement for the RFR by:

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

any Relevant Nominating Body,

in the opinion of the Bank and the Borrowers, generally accepted in the international loan markets as the appropriate successor or alternative to the RFR; or

in the opinion of the Bank and the Borrowers, an appropriate successor or alternative to the RFR;

the methodology, formula or other means of determining the RFR has, in the opinion of the Bank and the Borrowers, materially changed; or

(i)

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

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

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

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

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

the administrator of the RFR determines that the RFR should be calculated in accordance with its reduced submissions or other contingency or fallback policies or arrangements and either:

the circumstance(s) or event(s) leading to such determination are not (in the opinion of the Bank and the Borrowers) temporary; or

the RFR is calculated in accordance with any such policy or arrangement for a period which is no less than 10 Additional Banking Days; or

by deleting the definitions of “Approved Broker”, “Banking Day”, “Break Costs” and “month” in Clause 1.2 thereof and replacing them with the following definitions:

any date for payment or purchase of dollars; or

the determination of the first day or the last day of an Interest Period or otherwise in relation to the determination of the length of or rate for an Interest Period,

by deleting the definitions of “LIBOR”, “Quotation Day”, “Replacement Benchmark”, “Screen Rate” and “Screen Rate Replacement Event” in Clause 1.2 thereof;

by adding in the definition of “Security Documents” after the words “the Manager’s Undertakings” the words “, any Reference Rate Terms Supplement, any Compounding Methodology Supplement”;

by adding in Clause 1.3 thereof the following new paragraphs:

any replacement page of that information service which displays that rate; and

the appropriate page of such other information service which displays that rate from time to time in place of that information service, and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Bank after consultation with the Borrowers;

a reference to a “Central Bank Rate” shall include any successor rate to, or replacement rate for, that rate;

any Reference Rate Terms Supplement overrides anything in:

Schedule 4 (Reference Rate Terms); or

any earlier Reference Rate Terms Supplement; and

a Compounding Methodology Supplement relating to the Cumulative Compounded RFR Rate overrides anything relating to that rate in:

Schedule 5 (Cumulative Compounded RFR Rate); or

any earlier Compounding Methodology Supplement.”

by replacing Clause 3 thereof with the following clause:

Normal interest rate

Selection of Interest Periods

Determination of Interest Periods

the first Interest Period shall start on the Drawdown Date and each subsequent Interest Period shall start on the last day of the previous Interest Period;

if any Interest Period would otherwise overrun a Repayment Date, then, in the case of the last Repayment Date, such Interest Period shall end on such Repayment Date, and in the case of any other Repayment Date the Loan shall be divided into parts so that there is one part in the amount of the repayment instalment due on each Repayment Date falling in that Interest Period and having an Interest Period ending on the relevant Repayment Date and another part consisting of the balance of the Loan having an Interest Period ascertained in accordance with the other provisions of this clause 3; and

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

Default interest

Notifications

The Bank shall promptly upon an Interest Payment being determinable notify the Borrowers of:

that Interest Payment;

each applicable rate of interest relating to the determination of that Interest Payment; and

to the extent it is then determinable, the Market Disruption Rate (if any) relating to the Loan or the relevant part of the Loan.

The Bank shall promptly notify the Borrowers of the determination of a rate of interest relating to the Loan or any part of Loan to which Clause 3.6.3 (Cost of funds) applies.

This Clause 3.5 (Notifications) shall not require the Bank to make any notification to any Party on a day which is not a Banking Day.

Changes to calculation of Interest

Interest calculation if no RFR or Central Bank Rate

there is no RFR or Central Bank Rate for the purposes of calculating the Cumulative Compounded RFR Rate during an Interest Period for the Loan or any part of Loan; and

“Cost of funds will apply as a fallback” is specified in the Reference Rate Terms,

Market disruption

a Market Disruption Rate is specified in the Reference Rate Terms; and

before the Reporting Time for the Loan or any part of the Loan, the Bank determines that its cost of funds relating to the Loan would be in excess of that Market Disruption Rate,

Cost of funds

If this Clause 3.6.3 (Cost of funds) applies to the Loan or any part of the Loan for an Interest Period, Clause 3.1 (Normal rate of interest) shall not apply to the Loan or the relevant part of the Loan for that Interest Period and the rate of interest on the Loan or the relevant part of the Loan for that Interest Period shall be the percentage rate per annum which is the sum of:

the Margin; and

the rate determined by the Bank as soon as practicable and in any event by the Reporting Time,

If this Clause 3.6.3 (Cost of funds) applies and the Bank or the Borrowers so require, the Bank and the Borrowers shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest or (as the case may be) an alternative basis for funding.

If any rate determined by the Bank under Clause 3.6.3(a)(ii) is less than zero, the relevant rate shall be deemed to be zero.

If this Clause 3.6.3 (Cost of funds) applies, the Bank shall, as soon as practicable, notify the Borrowers.

Break Costs

Changes to reference rates

If an RFR Replacement Event has occurred, any amendment or waiver which relates to:

providing for the use of a Replacement Reference Rate in place of the RFR; and

any or all of the following:

aligning any provision of any Security Document to the use of that Replacement Reference Rate;

enabling that Replacement Reference Rate to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Reference Rate to be used for the purposes of this Agreement);

implementing market conventions applicable to that Replacement Reference Rate;

providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or

adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Reference Rate (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),

An amendment or waiver that relates to, or has the effect of, aligning the means of calculation of interest on the Loan or any part of the Loan under this Agreement to any recommendation of a Relevant Nominating Body which:

relates to the use of the RFR on a compounded basis in the international loan markets; and

is issued on or after the date of this Agreement,

Transition to a term-based rate

If there is extensive use of term-based rates in the loan markets, following the Borrowers’ written request, the Borrowers and the Bank shall negotiate and enter into a supplemental agreement to this Agreement in order to replace the provisions relating to the Cumulative Compounded RFR Rate with a term SOFR based rate mechanism or other term-based rate provisions prevailing in the loan markets at the time (and provided that the Bank has the technical ability for effecting such transition to a term-based rate mechanism). Such amendments will only be applied from the date on which the conditions in clause 3.8.2 below have been satisfied and throughout the rest of the Facility Period.

For the avoidance of doubt, no agreement between the Bank and the Borrowers regarding a term-based rate shall be or become effective under this clause 3.8.2, without the prior written consent of the Bank and unless and until:

the parties to this Agreement have executed any documents required to document such agreement (including an agreement supplemental to this Agreement and, if required, an addendum to each Mortgage) and any other documents requested by the Bank in its absolute discretion; and

the Borrowers have delivered to the Bank such documents and evidence of the type referred to in Schedule 2 (Conditions precedent) in relation to the documents referred to in paragraph (a) above as requested by the Bank in its absolute discretion,

Transition to a term-based rate

If there is extensive use of term-based rates in the loan markets, following the Borrowers’ written request, the Borrowers and the Bank shall negotiate and enter into a supplemental agreement to this Agreement in order to replace the provisions relating to the Cumulative Compounded RFR Rate with a term SOFR based rate mechanism or other term-based rate provisions prevailing in the loan markets at the time (and provided that the Bank has the technical ability for effecting such transition to a term-based rate mechanism). Such amendments will only be applied from the date on which the conditions in clause 3.8.2 below have been satisfied and throughout the rest of the Facility Period.

For the avoidance of doubt, no agreement between the Bank and the Borrowers regarding a term-based rate shall be or become effective under this clause 3.8.2 and unless and until:

the parties to this Agreement have executed any documents required to document such agreement (including an agreement supplemental to this Agreement and, if required, an addendum to each Mortgage); and

the Borrowers have delivered to the Bank such documents and evidence of the type referred to in Schedule 2 (Conditions precedent) in relation to the documents referred to in paragraph (a) above as requested by the Bank,

by deleting Clause 4.2 thereof and replacing it with the following:

Voluntary prepayment

by deleting Clause 4.7.1 thereof and replacing it with the following:

No prepayment may be effected under clause 4.2 unless the Borrowers shall have given the Bank at least ten (10) RFR Banking Days’ prior written notice of their intention to make such prepayment. Every notice of prepayment shall be effective only on actual receipt by the Bank, shall be irrevocable, shall specify the amount to be prepaid and shall oblige the Borrowers to make such prepayment on the date specified.”;

by deleting Clause 6.4 thereof and replacing it with the following:

Calculations

Any interest, commission or fee accruing under a Security Document will accrue from day to day and the amount of any such interest, commission or fee is calculated:

on the basis of the actual number of days elapsed and a year of 360 days; and

subject to paragraph (b) below, without rounding.

The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by a Security Party under a Security Document shall be rounded to 2 decimal places.”;

by adding a new Clause 6.3.2 to read as follows:

Any rules specified as “Banking Day Conventions” in the Reference Rate Terms, shall apply to each Interest Period”;

By adding as Schedule 4 and Schedule 5 thereof, Schedule 1 and Schedule 2 to this Agreement respectively;

by adding by construing references throughout to “this Agreement”, “hereunder” and other like expressions as if the same referred to the Loan Agreement as amended and supplemented by this Agreement.

Amendments to Security Documents. With effect on and from the date hereof each of the Security Documents other than the Loan Agreement, shall be, and shall be deemed by this Agreement to be, amended as follows:

the definition of, and references throughout each of the Security Documents to, the Loan Agreement and any of the other Security Documents shall be construed as if the same referred to the Loan Agreement and those Security Documents as amended and supplemented by this Agreement; and

by construing references throughout each of the Security Documents to “this Agreement”, “this Deed”, “hereunder” and other like expressions as if the same referred to such Security Documents as amended and supplemented by this Agreement.

Security Documents to remain in full force and effect. The Security Documents shall remain in full force and effect as amended and supplemented by such further or consequential modifications as may be necessary to give full effect to the terms of this Agreement.

FURTHER ASSURANCES

Borrowers’ obligation to execute further documents etc. The Borrowers shall, and shall procure that any other party to any Security Document shall:

execute and deliver to the Bank (or as it may direct) any assignment, mortgage, power of attorney, proxy or other document, governed by the law of England or such other country as the Bank may, in any particular case, specify; and

effect any registration or notarisation or legalisation, give any notice or take any other step, which the Bank may, by written notice to the Borrower or other party, specify,

Purposes of further assurances. Those purposes are:

validly and effectively to create any Encumbrance or right of any kind which the Bank intended should be created by or pursuant to the Loan Agreement or any other Security Document, each as amended and supplemented by this Agreement; and

implementing the terms and provisions of this Agreement.

Terms of further assurances. The Bank may specify the terms of any document to be executed by the Borrowers or any other party under Clause 5.1, and those terms may include any covenants, powers and provisions which the Bank considers appropriate to protect its interests.

Obligation to comply with notice. The Borrowers shall comply with a written notice under Clause 5.1(b) by the date specified in the notice.

Additional corporate action. At the same time as the Borrowers or any other party deliver to the Bank any document executed under Clause 5.1(a), each Borrower or such other party shall also deliver to the Bank a certificate signed by that Borrower or that other party’s directors which shall:

set out the text of resolutions of that Borrower or that other party’s directors specifically authorising the execution of the document specified by the Bank; and

state that either the resolution was duly passed at a meeting of the directors validly convened and held throughout which a quorum of directors entitled to vote on the resolution was present or that the resolution has been signed by all the directors and is valid under that Borrower’s or that other party’s articles of association or other constitutional documents.

FEES AND EXPENSES

Fees and Expenses. The provisions of Clause 5 (Fees and Expenses) of the Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

NOTICES

General. The provisions of Clause 16 (Notices and other matters) of the Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.

SUPPLEMENTAL

Counterparts. This Agreement may be executed in any number of counterparts.

Third party rights. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

LAW AND JURISDICTION

Incorporation of the Loan Agreement provisions. The provisions of Clause 18 (Governing Law) and Clause 19 (Jurisdiction) of the Loan Agreement shall apply to this Agreement as if they were expressly incorporated in this Agreement with any necessary modifications.