United Maritime (USEA) 20-F2023 FY Annual report (foreign)

UNITED MARITIME CORPORATION, a corporation organised and existing under the laws of the Republic of the Marshall Islands with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Guarantor”); and

NML TRUSTEE LLC a limited liability company formed and existing under the laws of the Republic of the Marshall Islands having its registered address at Trust Company Complex, Ajeltake Road Island, Majuro, Marshall Islands MH 96960 as  security trustee for the Creditor Parties (as such term is defined below) (the Security Trustee).

NML CRETANSEA LLC (the “Lessor”) is the owner of the 81,508 dwt Kamsarmax bulk carrier vessel Cretansea registered under the laws and flag of the Republic of the Marshall Islands with IMO No. 9376373 on the Delivery Date (the “Vessel”).

By a bareboat charterparty dated              12 April               2023 made between the Lessor and Cretansea Maritime Co., a corporation organised and existing under the laws of the Republic of the Marshall Islands, having its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH96960 (the “Lessee”), as the same may from time to time be amended, varied or supplemented (together the “Charter”), the Lessor has agreed to let and the Lessee has agreed to take the Vessel on bareboat charter upon the terms therein described.

By a security trust dated 31 March 2023 made between inter alios, the Guarantor, the Lessor, NML Oasea LLC, the Lessee, Seanergy Shipmanagement Corp. and the Security Trustee (“Security Trust Deed”), the Lessor has appointed the Security Trustee to hold the Secured Property (as defined in the Security Trust Deed) on trust for the benefit of the Creditor Parties, including the Lessor.

It is a condition precedent to, among others, the Lessor making or continuing to make the Vessel available to the Lessee pursuant to the terms of the Charter that the Guarantor shall execute and deliver to the Security Trustee this Guarantee.

Expressions defined in the Charter shall, unless the context otherwise requires, have the same meanings when used in this Guarantee.

In this Guarantee, unless there is something in the subject or context inconsistent therewith, the following expressions shall have the following meanings:

In this Guarantee:

clause headings are inserted for ease of reference only and shall not affect the construction of this Guarantee and unless otherwise specified, all references to Clauses and Schedules are to be construed as references to clauses and schedules of this Guarantee;

unless the context otherwise requires, words importing the plural include the singular and vice versa, and words importing a gender include every gender;

references to persons include any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);

references to assets include present and future properties, revenues and rights of every description;

references to any document are to be construed as references to such document as amended, novated, supplemented, extended or restated from time to time; and

references to any enactment include re-enactments, amendments and extensions thereof.

The Guarantor hereby irrevocably and unconditionally:

guarantees to the Security Trustee the due and punctual performance by each Relevant Party of all its obligations, duties and liabilities under or in connection with the Operative Documents to which it is a party, payment on the due date of all sums payable now or in the future to the Creditor Parties by each Relevant Party thereunder or in connection therewith (including, without limitation, any amount payable by way of liquidated and/or unliquidated damages for breach of any of the terms and conditions of the Operative Documents) when and as the same shall become due or as the case may be, liable, for the performance by each Relevant Party according to the terms of the Operative Documents to which it is a party;

undertakes with the Security Trustee that, if and whenever any Relevant Party does not pay any amount when due under or in connection with any Operative Document, it shall immediately on demand pay that amount as if it was the principal obligor (taking into account any taken grace period for such payment before it has become due as and if it may be applicable under the terms of the Operative Documents);

undertakes with the Security Trustee that if and whenever any Relevant Party shall be in default in the performance of any of its obligations whatsoever under or in connection with the Operative Documents to which it is a party, the Guarantor will perform such obligations on written demand; and

undertakes with the Security Trustee that if any obligation under an Operative Document is or becomes unenforceable, invalid or illegal it will, as an independent and primary obligation, indemnify the Creditor Parties immediately on demand against any cost, loss or liability it incurs as a result of any Relevant Party not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it on the date when it would have been due. The amount payable by the Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 2.1 if the amount claimed had been recoverable on the basis of this Guarantee.

It is declared and agreed that:

this Guarantee shall be held by the Security Trustee as a continuing security and shall not be satisfied by any intermediate payment or satisfaction of any part of the moneys and liabilities hereby guaranteed;

the security so created shall be in addition to and shall not in any way be prejudiced or affected by any other security given in respect of the Operative Documents;

the Security Trustee shall not be bound to enforce the Operative Documents provided it must serve a written demand on the Lessee and the Associated Lessee for payment under the Charter and the Associated Charter, respectively, before enforcing its rights under this Guarantee;

no delay or omission on the part of the Security Trustee in exercising any right, power or remedy under this Guarantee shall impair such right, power or remedy or be construed as a waiver thereof nor shall any single or partial exercise of any such right, power or remedy preclude any further exercise thereof or the exercise of any other right, power or remedy.  The rights powers and remedies provided in this Guarantee are cumulative and not exclusive of any rights, powers and remedies provided by law and may be exercised from time to time and as often as the Security Trustee may deem expedient; and

any waiver by the Security Trustee of any terms of this Guarantee or any consent given by the Security Trustee under this Guarantee shall only be effective if given in writing and then only for the purpose and upon the terms for which it is given.

Any settlement or discharge under this Guarantee between the Security Trustee and the Guarantor shall be conditional upon no security or payment to the Security Trustee by any Relevant Party or any other person being avoided or set aside or ordered to be refunded or reduced by virtue of any provision or enactment relating to bankruptcy, insolvency or liquidation for the time being in force, and if such condition is not satisfied, the Security Trustee shall be entitled to recover from the Guarantor on demand the value of such security or the amount of any such payment as if such settlement or discharge had not occurred.

The obligations of the Guarantor under this Guarantee shall not be affected by any act, omission, matter or thing which, but for this provision, might operate to release or otherwise exonerate the Guarantor from its obligations hereunder in whole or in part, including without limitation, and whether or not known to or discoverable by the Guarantor, the Lessee any other Relevant Party, the Lessor, the Security Trustee, any other Creditor Party or any other person:

any time or waiver granted to or composition with any Relevant Party or any other person; or

the release of any Relevant Party or any other person under the terms of any composition or arrangement with any creditor of any Relevant Party; or

the taking, variation, compromise, renewal or release of or refusal or neglect to perfect or enforce any rights, remedies or securities against any Relevant Party or any other person; or

any legal limitation, disability, incapacity or other circumstances relating to any Relevant Party or any other person; or

any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature, and whether or not more onerous) or replacement of any Operative Document or any other document or security; or

the dissolution, liquidation, amalgamation, reconstruction, reorganisation or similar proceedings of any Relevant Party or any other person; or

the unenforceability or invalidity of any obligations of any Relevant Party or any other person under the Operative Documents or any other document or security.

Until all amounts which may be or become payable by any Relevant Party under or in connection with the Operative Documents have been irrevocably paid in full, the Guarantor will not, without the prior written consent of the Security Trustee , exercise any rights which it may have by reason of performance by it of its obligations under the Operative Documents or by reason of any amount being payable, or liability arising, under this Guarantee:

to be indemnified by any Relevant Party;

to claim any contribution from any other guarantor of obligations of any Relevant Party under the Operative Documents;

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Operative Documents or of any other guarantee or security taken pursuant to, or in connection with, the Operative Documents by the Creditor Parties;

to bring legal or other proceedings for an order requiring any Relevant Party to make any payment, or perform any obligation, in respect of which the Guarantor has given a guarantee, undertaking or indemnity under Clause 2.1;

to exercise any right of set-off against any Relevant Party; and

to claim or prove as a creditor of any Relevant Party in competition with any Creditor Party.

Until all moneys and liabilities hereby guaranteed have been unconditionally and irrevocably paid in full to the satisfaction of the Security Trustee and, for this purpose, the Security Trustee may keep in a separate account for as long as it may think fit, any moneys received, recovered or realised under this Guarantee or under any other guarantee, security or agreement relating in whole or in part to the moneys and liabilities hereby guaranteed without being under any intermediate obligation to apply the same or any part thereof in or towards the discharge of such amount.

The Guarantor waives any right it may have of first requiring the Security Trustee or any other Creditor Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the Guarantor under this Guarantee. This waiver applies irrespective of any law or any provision of any document to the contrary.

The Guarantor hereby represents and warrants to the Security Trustee as at the date of this Guarantee that:

it is a corporation, duly incorporated, validly existing and in good standing under the laws of the Republic of the Marshall Islands; and

it has the power and authority to own its assets and carry on its business as it is now being conducted.

any law or regulation applicable to it;

its constitutional documents; or

any agreement or instrument binding upon it or any of its assets,

it has the power to enter into, perform and deliver and comply with its obligations under, and has taken all necessary action to authorise its entry into, performance and delivery of, and compliance with, the Operative Documents to which it is a party and the transactions contemplated by those documents and to create the Liens expressed to be created by the Security Documents to which it is or will be a party; and

no limitation on its powers to borrow, create security or give guarantees will be exceeded as a result of any transaction under, or the entry into of, any Operative Document to which it is, or is to be, a party;

to enable it lawfully to enter into, exercise its rights and comply with its obligations in, the Operative Documents to which it is a party;

to make the Operative Documents to which it is a party admissible in evidence in its jurisdiction of incorporation;

for it to carry on its business; and

to enable it to create the Liens to be created by it under any Operative Document to which it is a party and to ensure that such Lien has the priority and ranking it is expressed to have,

the choice of English law as the governing law of the Operative Documents to which it is a party will be recognised and enforced in its jurisdiction of incorporation; and

any judgment or arbitration award obtained in England in relation to an Operative Document to which it is a party will be recognised and enforced in its jurisdiction of incorporation;

it has not established a place of business in England; and

its centre of main interest (as that term is used in Article 3(1) for the purposes of the Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (recast) (the Regulation)) is situated in Greece and it has no “establishment” (as that term is used in Article 2(10) of the Regulation) in any other jurisdiction.

all information provided by it for the purposes of any Operative Document to which it is a party was true, complete and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated;

any financial projections provided by it or on its behalf and delivered to the Security Trustee in connection with this Guarantee or any other Operative Document have been prepared on the basis of recent historical information and on the basis of reasonable assumptions; and

nothing has occurred or been omitted from the information so provided and no information has been given by it or withheld that results in any such information provided by it or on its behalf being untrue or misleading in any material respect;

each Operative Document to which it is a party creates (or, once entered into, will create) in favour of the Security Trustee the security which it is expressed to create with the ranking and priority it is expressed to have; and

without limiting paragraph (i) above, its payment obligations under each Operative Document to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally;

No Potential Termination Event or Termination Event is continuing or might reasonably be expected to result from the entry into or performance of, or the transactions contemplated by, the Operative Documents to which it is a party; and

no other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or to which its assets are subject which would have a Material Adverse Effect;

all applicable Environmental Laws and Environmental Authorisations relating to the Vessel and her operation and management have been complied with;

no Environmental Claim has been made or threatened against the Lessee or any Manager in connection with the Vessel; and

no Environmental Incident has occurred;

Each of the representations and warranties set out in Clause 3.1 are deemed to be made by the Guarantor by reference to the facts and circumstances then existing on the Delivery Date and on each Payment Date.

obtain, comply with and do all that is necessary to maintain in full force and effect; and

supply certified copies to the Security Trustee of,

the occurrence of any Potential Termination Event or any Termination Event; or

any matter which indicates that any Potential Termination Event or any Termination Event may have occurred,

file or cause to be filed all tax returns required to be filed in all jurisdictions in which it is situated or carries on business or otherwise is subject to Taxation;

pay all Taxes shown to be due and payable on such returns or any assessments made against it, except to the extent these are contested in good faith and by appropriate means where such payment may be lawfully withheld and for which adequate reserves have been established by the Guarantor taking into account the amount of Taxes payable;

except as approved by the Security Trustee, maintain its residence for Tax purposes in the jurisdiction in which it is currently resident for Tax purposes and ensure that it is not resident for Tax purposes in any other jurisdiction; and

promptly upon becoming aware of the same notify the Security Trustee of the imposition or the proposed levy of any taxes (by withholding or otherwise) on any payment to be made by the Guarantor under any Operative Document to which it is a party.

The Guarantor undertakes that it, and shall procure that each Group Member and each Relevant Party will (in the case of a Third Party Manager on a best efforts basis), comply with all Sanctions.

The Guarantor shall not become a Restricted Person or act on behalf of, or as an agent of, a Restricted Person. The Guarantor shall procure that no other Group Member and no Relevant Party shall (in the case of a Third Party Manager on a best efforts basis), become a Restricted Person or act on behalf of, or as an agent of, a Restricted Person.

The Guarantor shall procure that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account of any Creditor Party or any Affiliate of any Creditor Party.

The Guarantor shall, and it shall procure that each Group Member and each Relevant Party will (in the case of a Third Party Manager on a best efforts basis), promptly upon becoming aware of them supply to the Security Trustee details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.

The Guarantor shall not, and it shall procure that no Group Member nor any Relevant Party will (in the case of a Third Party Manager on a best efforts basis), use any revenue or benefit derived from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Creditor Parties or any of them.

The Guarantor shall not, and it shall procure that no other Group Member nor any Relevant Party shall (in the case of a Third Party Manager on a best efforts basis), directly or indirectly, use, lend, contribute or otherwise make available any proceeds of the Purchase Price or other transaction contemplated by this Charter or the Memorandum of Agreement for the purpose of financing any trade, business or other activities with any Restricted Person.

The Guarantor shall, and shall procure that each Relevant Party (using all reasonable endeavours to procure the respective officers and/or directors, of the relevant entity to do the same) shall, (A) comply with all Anti-Money Laundering Laws; (B) maintain systems, controls, policies and procedures designed to promote and achieve ongoing compliance with Anti-Money Laundering Laws; and (C) in respect of the Lessee, procure that it shall not use, or permit or authorize any person not to directly or indirectly use, the Purchase Price for any purpose that would breach any Anti-Money Laundering Laws;

The Guarantor shall procure that the Lessee shall not lend, invest, contribute or otherwise make available the Purchase Price to or for any other person in a manner which would result in a violation of Anti-Money Laundering Laws.

The Guarantor shall promptly notify the Security Trustee of any non-compliance by any Relevant Party (in the case of a Third Party Manager on a best efforts basis) or its respective officers, directors, with all laws and regulations relating to Anti-Money Laundering Laws as well as provide all information (once available) in relation to its business and operations which may be relevant for the purposes of ascertaining whether any of the aforesaid parties are in compliance with such laws.

at the same time as they are dispatched, copies of all material documents dispatched by it to its shareholders generally (or any class of them) or its creditors generally (or any class of them);

such information regarding the employment status and operating status of the Vessel as the Security Trustee may reasonably request;

such further information regarding the financial condition, business and operations of the Lessee and/or the financial condition of the Guarantor, as the Security Trustee may reasonably request;

such further information and records relating to the Vessel and/or the Associated Vessel and/or the Lessee as the Security Trustee may reasonably request;

any notice being received from any competent authority amending, terminating or suspending or threatening to amend, terminate or suspend any Authorisation where such action (or implementing the result thereof) constitutes a Material Adverse Effect; and

upon becoming aware of them, details of any circumstances which may lead to:

any Authorisation not being obtained or effected or not remaining in full force and effect (other than in accordance with its terms); or

any Authorisation not being obtained, renewed or effected when required,

In the event that the Guarantor or any other Group Member agrees to, or grants, or agrees to grant, any financial covenants or restriction to the payment or distribution of dividends, for the benefit of, or in favour of,  any lender or creditor of any indebtedness of any Group Member (the more favourable rights), which are in any respect more favourable to such lender or creditor than paragraph (a) of this Clause 4.17 and/or Clause 54.13 (Distributions and other payments) of the Charter are for the Lessor, the Guarantor undertakes:

are subordinated in all respects to all amounts owing and which may in future become owing by the Lessee under the Operative Documents;

shall not be subject to payment of interest;

are and shall remain unsecured by any Lien over the whole or any part of the assets of the Lessee; and

shall not be capable of becoming subject to any right of set-off or counterclaim.

All payments to be made by the Guarantor to the Security Trustee under this Guarantee shall be made:

in full, without any set-off or counterclaim and, subject as provided in Clause 48.1 (Withholding Taxes) of the Charter, free and clear of any deductions or withholdings; and

in Dollars, in same day funds before 11:00 a.m. (London time) on the due date for payment, to the Payment Account or such other account as the Security Trustee may notify the Guarantor in writing at least five (5) Business Days before the due date for payment.

Any payment which is due to be made under this Guarantee on a day which is not a Business Day shall be made on the next Business Day, unless such Business Day falls in the next calendar month or after the Expiry Date, in which case the due date shall be the preceding Business Day.

Without prejudice to the other rights and remedies of the Security Trustee hereunder, if any amount due and payable by the Guarantor hereunder is not received by the Security Trustee on the due date for payment thereof in the manner herein stipulated, the Guarantor shall pay interest on the same for the period starting on (and including) the due date for payment thereof and ending on (but excluding) the date on which the same is received or recovered by the Security Trustee in full (after as well as before judgment) at the rate(s) from time to time determined under this Clause 5.3. The period between the due date for payment of any sum due and payable hereunder or thereunder and the date upon which the obligation to pay such sum is discharged shall be divided into successive periods, the duration of which shall be selected by the Security Trustee. During each such period (as well after as before judgment) the outstanding balance of the unpaid sum shall bear interest which shall accrue from day to day and on the basis of actual days elapsed and shall be calculated at a rate per annum which is equal to the Default Rate calculated on the basis of a year of three hundred and sixty (360) days and actual days elapsed. Any such interest shall be due and payable when the relevant unpaid sum is paid or, if earlier, at the end of each period by reference to which it is calculated.

If any sum due from the Guarantor under any Operative Document to which it is a party (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”) in which that Sum is payable into another currency (the “Second Currency”) for the purpose of:

making or filing a claim or proof against the Guarantor; or

obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,

The Guarantor waives any right it may have in any jurisdiction to pay any amount under any relevant Operative Document to which it is a party in a currency or currency unit other than that in which it is expressed to be payable

If to the Guarantor at:

If to the Security Trustee at:

if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or

if by way of email, if it complies with the rules under Clause 8.4 (Electronic communication),

Any communication to be made between the parties to this Guarantee under or in connection with this Guarantee may be made by electronic mail or other electronic means, and the parties to this Guarantee hereby agree:

that, unless and until notified to the contrary, this is to be an accepted form of communication;

to notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and

to notify each other of any change to their address or any other such information supplied by them.

Any electronic communication made by one party to this Guarantee to the other party will be effective when it is sent by the sender party unless the sender party receives a message indicating failed delivery.

A party to this Guarantee shall notify the other party promptly upon becoming aware that its electronic mail system or other electronic means of communication cannot be used due to technical failure (and that failure is or is likely to be continuing for more than 24 hours).  Until that party has notified the other party that the failure has been remedied, all notices between the parties to this Guarantee shall be sent by letter in accordance with this Clause 8.

Any notice given under or in connection with this Guarantee must be in English.

All other documents provided under or in connection with this Guarantee must be:

in English; or

if not in English, and if so required by the Security Trustee accompanied by a certified by an attorney-at-law English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.

Time shall be of the essence of this Guarantee.

If at any time anyone or more of the provisions in this Guarantee is or becomes invalid, illegal or unenforceable in any respect under any law or regulation, the validity, legality and enforceability of the remaining provisions of this Guarantee shall not be in any way affected or impaired thereby.

The obligations of the Guarantor under this Guarantee shall remain in full force and effect until the Security Trustee shall have received all amounts due or to become due to it hereunder in accordance with the terms hereof, following which the Security Trustee shall, at the written request and cost of the Guarantor, execute and deliver promptly to the Guarantor a discharge of this Guarantee. Without prejudice to the foregoing, the obligations of the Guarantor under Clauses 2.3, 5.3, 6 (Expenses) and 7 (Currency Indemnity) shall survive the termination of the Charter.

If the Security Trustee considers that any amount paid or credited to it is capable of being avoided or reduced by virtue of any bankruptcy, insolvency, liquidation or similar laws, the liability of the Guarantor under this Guarantee will continue and such amount will not be considered to have been irrevocably discharged.

Subject to paragraph (c) below, the courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with this Guarantee (including any dispute relating to any non-contractual obligation arising from or in connection with this Guarantee and any dispute regarding the existence, validity or termination of this Guarantee) (a “Dispute”).

The parties to this Guarantee agree that the courts of England and Wales are the most appropriate and convenient courts to settle Disputes and accordingly no party to this Guarantee will argue to the contrary.

This Clause 11.2 is for the benefit of the Security Trustee only.  As a result, the Security Trustee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction.  To the extent allowed by law, the Security Trustee may take concurrent proceedings in any number of jurisdictions.

suit;

jurisdiction of any court;

relief by way of injunction or order for specific performance or recovery of property;

attachment of its assets (whether before or after judgment); and

execution or enforcement of any judgment to which it or its revenues or assets might otherwise be entitled in any proceedings in the courts of any jurisdiction (and irrevocably agrees, to the extent permitted by applicable law, that it will not claim any immunity in any such proceedings),