SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
Dated as of November 5, 2024
by and among
THALASSA SHIPPING & LOGISTICS SA a Société Anonyme organized under the laws of the Hellenic Republic
AEGEAN FORTUNA SHIPHOLDING LTD. a limited liability company organized under the laws of the Republic of Liberia
and
NORTHWIND MARITIME CORPORATION a corporation organized under the laws of the Republic of the marshall Islands
Prepared by:
Calderwood & Harkness LLP One Liberty Plaza, 50th Floor New York, NY 10006
FIRST DRAFT — FOR DISCUSSION PURPOSES ONLY — SUBJECT TO REVIEW AND COMMENT BY ALL PARTIES. This document does not constitute an offer, acceptance, or binding commitment by any party. The terms set forth herein are subject to further negotiation, revision, and the execution and delivery of a definitive agreement by all parties.
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This SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE (this "Agreement") is made and entered into as of the date of the last signature set forth on the signature pages hereto (the "Effective Date"), by and among the parties identified below.
RECITALS
A. The Parties. Thalassa Shipping & Logistics SA ("Thalassa" or "TSL"), a Société Anonyme (SA) organized and existing under the laws of the Hellenic Republic, with its principal office located at 42 Akti Miaouli, Piraeus 185 38, Greece (Greek Tax Identification Number (AFM) 998342671); Aegean Fortuna Shipholding Ltd. ("Aegean Fortuna Shipholding"), a limited liability company organized and existing under the laws of the Republic of Liberia, with its registered offices at 80 Broad Street, Monrovia, Liberia (Liberian Registration No. LR-C-20167845), and a wholly owned subsidiary of TSL (TSL and Aegean Fortuna Shipholding are collectively referred to herein as the "TSL Parties"); and Northwind Maritime Corporation ("Northwind"), a corporation organized and existing under the laws of the Republic of the marshall Islands (Entity No. MI-94827), with its principal office located at 1700 Harbor Gateway, Suite 500, Stamford, CT 06902. The TSL Parties and Northwind are collectively referred to herein as the "Parties" and each individually as a "Party."
B. The Charter-Party. On or about December 3, 2020, Aegean Fortuna Shipholding (as Owner) and Northwind (as Charterer) entered into a time charter-party (Ref. No. NW-TSL-CP-2020-1203) on the New York Produce Exchange Form 2015 (NYPE 2015), as amended (the "Charter-Party"), for the vessel M/V Aegean Fortuna (IMO No. 9847231), a Supramax dry bulk carrier of approximately 58,200 deadweight tons (DWT), built in 2016, flagged in the Republic of Liberia, and classified by Global Maritime Classification Bureau (GMCB). The Charter-Party provided for a charter period of thirty-six (36) months, commencing on or about January 15, 2021, and expiring on or about January 14, 2024, at a daily hire rate of Fourteen Thousand Seven Hundred Fifty United States Dollars ($14,750) per day, representing an approximate total charter value of Sixteen Million One Hundred Sixty-Six Thousand United States Dollars ($16,166,000) over the full charter period.
C. The Action. On October 2, 2023, Northwind commenced an action captioned Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, in the Supreme Court of the State of New York, New York County, Commercial Division, assigned to Hon. Lorraine K. Chen, J.S.C., Part 49 (the "Action"). On November 17, 2023, the TSL Parties filed a Verified Answer and Counterclaim in the Action (the "TSL Counterclaim"), asserting, among other things, a claim for One Million Six Hundred Twenty Thousand United States Dollars ($1,620,000) in unpaid hire for the period October 1 through December 31, 2022.
D. The Dispute. In the Action, Northwind alleged, among other things, that the TSL Parties breached the Charter-Party by to maintain the M/V Aegean Fortuna in a seaworthy condition and by deviating from agreed trade routes, resulting in claimed damages of approximately Eighteen Million Three Hundred Thousand United States Dollars ($18,300,000). The TSL Parties denied all material allegations asserted by Northwind and raised affirmative defenses, including, without limitation, latent defect, charterer causation, the Inter-Club New Zealand Produce Board Agreement (the "Inter-Club Agreement"), the Master's discretion on deviation under applicable maritime law and the Charter-Party, Northwind's failure to mitigate damages, and the proper interpretation of the liquidated damages cap set forth in Clause 28 of the Charter-Party. The dispute centered on, among other issues, three mechanical incidents affecting the Vessel: (i) a turbocharger failure that occurred between approximately March 12, 2022, and April 2, 2022, resulting in twenty-two (22) claimed off-hire days; (ii) a ballast water treatment system ("BWTS") and boiler failure that occurred between approximately July 8, 2022, and July 29, 2022, resulting in twenty-one (21) claimed off-hire days; and (iii) a cylinder liner failure that occurred between approximately November 15, 2022, and December 10, 2022, resulting in twenty-five (25) claimed off-hire days, for a total of sixty-eight (68) claimed off-hire days. In addition, the dispute involved Northwind's allegations regarding an unauthorized deviation to the Port of Maputo, Mozambique, in or about September 2022 (the "Maputo Deviation").
E. Litigation History. On December 15, 2023, the TSL Parties filed a Motion to Dismiss Counts III and V of Northwind's complaint. By Decision and Order dated March 8, 2024, the Court dismissed Count V in its entirety and narrowed the scope of Count III. Thereafter, the Parties engaged in extensive discovery from approximately January 2024 through August 2024, including the exchange of document productions, the conduct of fact and expert depositions, and the service and exchange of expert reports. On September 20, 2024, the TSL Parties filed a Motion for Partial Summary Judgment, which remains pending before the Court. Oral argument on the Motion for Partial Summary Judgment is currently scheduled for December 6, 2024.
F. The Mediation and Settlement. Pursuant to a court-ordered mediation directive, the Parties participated in a mediation conducted on October 28–29, 2024, before the Honorable Gerald K. Fitzpatrick (Ret.) of Bayside Dispute Resolution Services LLC. At the conclusion of the mediation, on October 29, 2024, the Parties reached a settlement in principle, the material terms of which were memorialized in a one-page term sheet signed by counsel for all Parties (the "Mediator's Term Sheet"). The Parties now desire to memorialize the full terms and conditions of their settlement in this Agreement, which shall supersede the Mediator's Term Sheet in its entirety upon execution hereof.
G. Desire to Resolve. The Parties desire to fully, finally, and forever resolve and settle all claims, counterclaims, cross-claims, and disputes between and among them arising out of or related to the Charter-Party, the M/V Aegean Fortuna, and the Action, without any admission of liability, fault, wrongdoing, or responsibility by any Party .
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
"Action" means the action captioned Northwind Maritime Corporation v. Thalassa Shipping & Logistics SA and Aegean Fortuna Shipholding Ltd., Index No. 655421/2023, Supreme Court of the State of New York, New York County, Commercial Division, Part 49.
"Agreement" means this Settlement Agreement and Mutual General Release, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with Section 12.4.
"Charter-Party" means the time charter-party (Ref. No. NW-TSL-CP-2020-1203) dated December 3, 2020, entered into between Aegean Fortuna Shipholding (as Owner) and Northwind (as Charterer) on the New York Produce Exchange Form 2015 (NYPE 2015), as amended.
"Confidential Information" has the meaning ascribed to such term in Section 8.1.
"Consent Judgment" has the meaning ascribed to such term in Section 7.3.
"Court" means the Supreme Court of the State of New York, New York County, Commercial Division, Part 49, or any successor court or division exercising jurisdiction over the Action.
"Effective Date" means the date on which this Agreement has been duly executed and delivered by all Parties .
"Escrow Account" means the escrow account designated as Account No. ESC-2024-NYK-08831, maintained by the Escrow Agent in accordance with the Escrow Agreement.
"Escrow Agent" means Atlantic Fiduciary Trust Company, located at 60 Wall Street, Suite 2800, New York, NY 10005, or any successor escrow agent appointed in accordance with the Escrow Agreement.
"Escrow Agreement" means the escrow agreement to be entered into among the Parties and the Escrow Agent substantially contemporaneously with this Agreement, governing the deposit, maintenance, and release of settlement funds held in the Escrow Account.
"Event of Default" has the meaning ascribed to such term in Section 7.1 .
"Final Payment Date" means the date on which the Third Payment is deposited in the Escrow Account and released to Northwind in accordance with the terms of the Escrow Agreement.
"First Payment" has the meaning ascribed to such term in Section 3.1(a).
"Justice Chen" means the Honorable Lorraine K. Chen, J.S.C., the judicial officer assigned to the Action in the Commercial Division, Part 49, of the Supreme Court of the State of New York, New York County.
"Mediator's Term Sheet" means the one-page term sheet dated October 29, 2024, executed by counsel for all Parties at the conclusion of the mediation before Hon. Gerald K. Fitzpatrick (Ret.), which set forth the principal terms of the settlement in principle reached by the Parties.
"Northwind Released Parties" has the meaning ascribed to such term in Section 5.2.
"Northwind Releasing Parties" has the meaning ascribed to such term in Section 5.1.
"P&I Club" means Oceanus Mutual Protection & Indemnity Club, with its principal office at Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda.
"P&I Contribution" has the meaning ascribed to such term in Section 3.3.
"Party" and "Parties" have the meanings ascribed to such terms in the recitals.
"Released Parties" means, collectively, the TSL Released Parties and the Northwind Released Parties, as defined in Sections 5.1 and 5.2, respectively.
"Releasing Parties" means, collectively, the Northwind Releasing Parties and the TSL Releasing Parties, as defined in Sections 5.1 and 5.2, respectively.
"Second Payment" has the meaning ascribed to such term in Section 3.1(b).
"Settlement Amount" means Seven Million Eight Hundred Fifty Thousand United States Dollars ($7,850,000), payable by the TSL Parties to Northwind in accordance with the payment schedule set forth in Section 3.1.
"Stipulation of discontinuance" has the meaning ascribed to such term in Section 4.3.
"Third Payment" has the meaning ascribed to such term in Section 3.1(c).
"TSL Counterclaim" means the counterclaim filed by the TSL Parties in the Action on November 17, 2023, asserting a claim for One Million Six Hundred Twenty Thousand United States Dollars ($1,620,000) in unpaid hire for the period October 1 through December 31, 2022.
"TSL Parties" has the meaning ascribed to such term in the recitals.
"TSL Released Parties" has the meaning ascribed to such term in Section 5.1.
"TSL Releasing Parties" has the meaning ascribed to such term in Section 5.2.
"Vessel" means the M/V Aegean Fortuna, IMO No. 9847231, a Supramax dry bulk carrier of approximately 58,200 DWT, built in 2016, flagged in the Republic of Liberia, and classified by Global Maritime Classification Bureau.
Section 1.2 Interpretation. In this Agreement, unless the context otherwise requires:
(a) Section headings, article headings, and captions are included for convenience of reference only and shall not affect the meaning, construction, or interpretation of any provision of this Agreement.
(b) The word "including" and words of similar import, when used in this Agreement, shall mean "including, without limitation," and shall not be construed to limit any general statement that precedes or follows such word to the specific or similar items or matters immediately following such word.
(c) References to articles, sections, exhibits, and schedules are, unless otherwise indicated, references to articles and sections of, and exhibits and schedules to, this Agreement.
(d) Words in the singular include the plural, and words in the plural include the singular, unless the context otherwise requires.
(e) The word "or" is not exclusive and shall be interpreted in the inclusive sense (i.e., "and/or") unless the context otherwise requires.
(f) All references to currency or monetary amounts in this Agreement are references to United States Dollars unless otherwise expressly stated.
(g) All defined terms used in the recitals to this Agreement shall have the meanings assigned to them in this Article 1, to the extent defined herein, or the meanings assigned to them in the recitals, as applicable.
(h) The terms "hereof," "herein," "hereby," "hereto," and similar terms refer to this Agreement as a whole and not to any particular provision of this Agreement.
(i) References to a "person" or "entity" include any natural person, corporation, limited liability company, partnership, joint venture, association, trust, governmental authority, or other legal entity.
(j) References to a "business day" mean any day other than a Saturday, Sunday, or any day on which banking institutions in New York, New York, are authorized or required by law or executive order to remain closed.
ARTICLE 2 — SETTLEMENT
Section 2.1 Settlement. In consideration of the mutual covenants and agreements set forth in this Agreement, the representations and warranties contained herein, the releases granted pursuant to Article 5, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each Party, the Parties agree to settle and resolve, fully, finally, and irrevocably, all claims, counterclaims, cross-claims, demands, causes of action, suits, debts, obligations, and disputes of whatever kind or nature, whether known or unknown, asserted or unasserted, arising out of, relating to, or in connection with the Charter-Party, the Vessel, and the Action, on the terms and conditions set forth in this Agreement. Each Party acknowledges that this Agreement represents a compromise of disputed claims and that the settlement contemplated herein is the product of extensive, arm's-length negotiation between sophisticated parties, each represented by experienced counsel.
Section 2.2 No Admission of Liability. This Agreement and the settlement contemplated hereby shall not constitute, and shall not be construed as, an admission of liability, fault, wrongdoing, responsibility, or the validity of any claim or defense by any Party. No Party, by entering into this Agreement, concedes the merit or lack of merit of any position asserted in the Action. Neither this Agreement, nor any of its terms, provisions, or recitals, nor any statements, communications, or conduct of the Parties in connection with the negotiation, mediation, or execution of this Agreement, shall be offered in evidence or received as evidence in any proceeding, whether pending or hereafter commenced, for any purpose whatsoever, other than to enforce the terms of this Agreement or as may otherwise be required by applicable law. The TSL Parties expressly deny all material allegations of breach, negligence, unseaworthiness, and deviation asserted by Northwind in the Action. Northwind expressly denies all material allegations asserted by the TSL Parties in the TSL Counterclaim, including the allegation that hire was owed for the period October 1 through December 31, 2022.
ARTICLE 3 — SETTLEMENT PAYMENTS
Section 3.1 Payment Schedule. In full and complete settlement of all claims, counterclaims, and disputes between the Parties arising out of or related to the Charter-Party, the Vessel, and the Action, the TSL Parties shall pay to Northwind an aggregate amount of Seven Million Eight Hundred Fifty Thousand United States Dollars ($7,850,000) (the "Settlement Amount"), payable in three (3) installments as follows:
(a) First Payment. The sum of Four Million United States Dollars ($4,000,000) (the "First Payment"), which shall be due and payable within calendar days of the Effective Date. The First Payment shall be deposited by wire transfer of immediately available funds into the Escrow Account.
(b) Second Payment. The sum of Two Million United States Dollars ($2,000,000) (the "Second Payment"), which shall be due and payable within ninety (90) calendar days of the Effective Date. The Second Payment shall be deposited by wire transfer of immediately available funds into the Escrow Account.
(c) Third Payment. The sum of One Million Eight Hundred Fifty Thousand United States Dollars ($1,850,000) (the "Third Payment"), which shall be due and payable within one hundred fifty (150) calendar days of the Effective Date. The Third Payment shall be deposited by wire transfer of immediately available funds into the Escrow Account.
Time is of the essence with respect to each payment obligation set forth in this Section 3.1. For purposes of determining compliance with the payment deadlines set forth herein, a payment shall be deemed "made" when the applicable funds are credited to the Escrow Account in immediately available funds.
Section 3.2 Escrow Arrangements. All payments made pursuant to Section 3.1 shall be effected by wire transfer of immediately available United States Dollars to the Escrow Account (Account No. ESC-2024-NYK-08831) maintained by Atlantic Fiduciary Trust Company at 60 Wall Street, Suite 2800, New York, NY 10005. The wire transfer instructions for the Escrow Account are set forth in Exhibit D attached hereto. The release of funds from the Escrow Account to Northwind shall be governed by the terms and conditions of the Escrow Agreement, which shall be entered into substantially contemporaneously with the execution of this Agreement. Release of funds from the Escrow Account to Northwind shall The primary contact for all matters relating to the Escrow Account and the Escrow Agreement shall be Martin Schreiber, Vice President, Escrow Services, Atlantic Fiduciary Trust Company, 60 Wall Street, Suite 2800, New York, NY 10005 (telephone: (212) 555-3400; email: mschreiber@atlanticfiduciary.com). All fees, costs, and expenses of the Escrow Agent incurred in connection with the Escrow Agreement and the maintenance and administration of the Escrow Account shall be borne
Section 3.3 Funding Sources. The Settlement Amount shall be funded from the following sources:
(a) TSL Corporate Funds. TSL corporate funds in the aggregate amount of Five Million Three Hundred Fifty Thousand United States Dollars ($5,350,000).
(b) P&I Contribution. A contribution from Oceanus Mutual Protection & Indemnity Club in the aggregate amount of Two Million Five Hundred Thousand United States Dollars ($2,500,000) (the "P&I Contribution"), payable under Policy No. OCE-P&I-2020-TSL-0047, subject to the approval of the Oceanus P&I Club Board of Directors (such approval being expected on or about November 22, 2024).
The allocation of the funding sources set forth in clauses (a) and (b) above among the three payment installments described in Section 3.1 shall be at the sole discretion of the TSL Parties, provided that the aggregate amounts and payment deadlines set forth in Section 3.1 are satisfied in full. For the avoidance of doubt, the TSL Parties remain fully and unconditionally responsible for payment of the entire Settlement Amount regardless of whether, or to what extent, the P&I Contribution is approved or funded.
Section 3.4 TSL Counterclaim Waiver. As an integral part of the settlement contemplated by this Agreement, and in consideration of the mutual covenants set forth herein, the TSL Parties hereby irrevocably waive, release, and abandon the TSL Counterclaim for One Million Six Hundred Twenty Thousand United States Dollars ($1,620,000) in unpaid hire for the period October 1 through December 31, 2022, as asserted in the Verified Answer and Counterclaim filed in the Action on November 17, 2023. The Parties acknowledge and agree that the payment of the Settlement Amount by the TSL Parties and the waiver of the TSL Counterclaim together constitute the full, final, and complete resolution of all financial obligations between and among the Parties arising out of or relating to the Charter-Party, the Vessel, and the Action. No further sums shall be due or payable by any Party to any other Party on account of any matter arising out of or related to the Charter-Party, the Vessel, or the Action, except as expressly provided in this Agreement.
Section 3.5 Tax Treatment. Each Party shall be solely responsible for the payment of any and all taxes, duties, levies, assessments, and other governmental charges (including, without limitation, income taxes, value-added taxes, withholding taxes, and any penalties or interest thereon) arising from or attributable to the receipt or payment of any portion of the Settlement Amount by such Party. Neither Party makes any representation or warranty to any other Party regarding the tax treatment, tax characterization, or tax consequences of the Settlement Amount or any installment thereof. No Party shall be required to withhold or deduct any portion of any payment of the Settlement Amount on account of any tax, duty, or other governmental charge, unless such withholding or deduction is required by applicable law, rule, or regulation. In the event that any Party determines in good faith that it is required by applicable law to withhold or deduct any amount from any payment made hereunder, such Party shall: (i) provide prompt written notice to the other Party or Parties of such determination, together with reasonable supporting documentation; (ii) remit the withheld amount to the appropriate governmental authority in accordance with applicable law; and (iii) provide the other Party or Parties with evidence of such remittance within a reasonable period of time.
ARTICLE 4 — WITHDRAWAL OF PENDING MOTIONS AND DISCONTINUANCE
Section 4.1 Withdrawal of Pending Motions. Within five (5) business days of the Effective Date, counsel for the Parties shall jointly prepare, execute, and file with the Court a stipulation withdrawing the TSL Parties' Motion for Partial Summary Judgment filed September 20, 2024, together with all other pending motions, applications, and requests for relief in the Action. Such stipulation shall be submitted to Justice Chen for so-ordering. Each Party shall cooperate with the other Parties and their respective counsel in the preparation and filing of such stipulation and in obtaining the Court's approval thereof.
Section 4.2 Notification to Court. Promptly following the execution of this Agreement, and in any event within three (3) business days of the Effective Date, counsel for the Parties shall jointly notify the Court, by letter or such other communication as is appropriate and customary, that the Action has been settled in its entirety and shall request that the oral argument currently scheduled for December 6, 2024, and any other pending court conferences, appearances, or deadlines in the Action, be removed from the Court's calendar. Such notification shall not disclose the terms of the settlement or any Confidential Information.
Section 4.3 Stipulation of discontinuance. Within ten (10) business days following receipt by Northwind of the Third Payment and the release of such payment from escrow in accordance with the Escrow Agreement (i.e., following the Final Payment Date) , counsel for the Parties shall jointly prepare, execute, and file with the Court a Stipulation of discontinuance with Prejudice discontinuing the Action, including all claims, counterclaims, cross-claims, and affirmative defenses, with prejudice and without costs, disbursements, or attorneys' fees to any Party (the "Stipulation of discontinuance"). The Stipulation of discontinuance shall be in substantially the form attached hereto as Exhibit A and shall be submitted to Justice Chen for so-ordering. Each Party shall cooperate fully in the execution and filing of the Stipulation of discontinuance and in obtaining the Court's approval thereof. In the event that the Court requires any modifications to the form of the Stipulation of discontinuance, the Parties shall cooperate in good faith to make such modifications as are necessary to obtain the Court's approval, provided that no such modification shall alter or impair the substantive terms of this Agreement.
Section 4.4 Retention of Jurisdiction. Substantially contemporaneously with the filing of the stipulation withdrawing pending motions pursuant to Section 4.1, counsel for the Parties shall jointly prepare, execute, and submit to the Court a Stipulation and Order Retaining Jurisdiction (the "Stipulation and Order"), which shall provide that the Court retains jurisdiction over the Action and the Parties for a period of days following the Effective Date for the purpose of enforcing the terms of this Agreement, including, without limitation, the entry of the Consent Judgment provided for in Section 7.3 in the event of a payment default. The Stipulation and Order shall be in substantially the form attached hereto as Exhibit B and shall be submitted to Justice Chen for so-ordering. Each Party irrevocably consents to the Court's retention of jurisdiction as contemplated by this Section 4.4 and waives any objection to personal jurisdiction or venue with respect to any enforcement action brought pursuant to this Agreement during such retention period.
ARTICLE 5 — MUTUAL GENERAL RELEASE
Section 5.1 Release by Northwind. Effective as of the Effective Date, Northwind, on behalf of itself and its past, present, and future parents, subsidiaries, affiliates, officers, directors, shareholders, members, partners, employees, agents, representatives, attorneys, insurers, lenders, successors, assigns, heirs, and executors (collectively, the "Northwind Releasing Parties"), hereby fully, finally, unconditionally, and forever releases, acquits, and discharges the TSL Parties and each of their respective past, present, and future parents, subsidiaries, affiliates (including, without limitation, Aegean Fortuna Shipholding Ltd.), officers, directors, shareholders, members, partners, employees, agents, representatives, attorneys (including, without limitation, Calderwood & Harkness LLP and Konstantinou & Rizos Law Offices), insurers (including, without limitation, Oceanus Mutual Protection & Indemnity Club, Fortis Marine Underwriters Ltd., and Castellan Professional Liability Insurers Ltd.), auditors (including, without limitation, Lysander & Associates, Chartered Accountants), lenders (including, without limitation, Meridian Capital Bank AG), successors, and assigns (collectively, the "TSL Released Parties") from any and all claims, demands, actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, judgments, executions, obligations, liabilities, damages, losses, costs, expenses, and attorneys' fees, of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, asserted or unasserted, disclosed or undisclosed, accrued or unaccrued, fixed or contingent, matured or unmatured, at law, in equity, in admiralty, or otherwise, which any of the Northwind Releasing Parties now has, has ever had, or may hereafter have against any of the TSL Released Parties, arising out of, relating to, based upon, or in connection with the Charter-Party, the Vessel, the Action, or any of the matters, transactions, acts, omissions, events, or circumstances described in, underlying, or giving rise to the Action or the TSL Counterclaim,
Section 5.2 Release by TSL Parties. Effective as of the Effective Date, the TSL Parties, on behalf of themselves and each of their respective past, present, and future parents, subsidiaries, affiliates, officers, directors, shareholders, members, partners, employees, agents, representatives, attorneys, insurers, lenders, successors, assigns, heirs, and executors (collectively, the "TSL Releasing Parties"), hereby fully, finally, unconditionally, and forever release, acquit, and discharge Northwind and its past, present, and future parents, subsidiaries, affiliates, officers, directors, shareholders, members, partners, employees, agents, representatives, attorneys (including, without limitation, Hargrove, Delacroix & Stern LLP and Pacific Maritime Legal Associates), insurers, lenders, sub-charterers (including, without limitation, Eastbourne Bulk Carriers Ltd.), experts retained in connection with the Action (including, without limitation, Capt. Julian Blackmore (Ret.) and Dr. Rajesh Anand), successors, and assigns (collectively, the "Northwind Released Parties") from any and all claims, demands, actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, judgments, executions, obligations, liabilities, damages, losses, costs, expenses, and attorneys' fees, of every kind and nature whatsoever, whether known or unknown, suspected or unsuspected, asserted or unasserted, disclosed or undisclosed, accrued or unaccrued, fixed or contingent, matured or unmatured, at law, in equity, in admiralty, or otherwise, which any of the TSL Releasing Parties now has, has ever had, or may hereafter have against any of the Northwind Released Parties, arising out of, relating to, based upon, or in connection with the Charter-Party, the Vessel, the Action, or any of the matters, transactions, acts, omissions, events, or circumstances described in, underlying, or giving rise to the Action or the TSL Counterclaim, This release specifically includes, without limitation, the TSL Counterclaim for One Million Six Hundred Twenty Thousand United States Dollars ($1,620,000) in unpaid hire for the period October 1 through December 31, 2022, and all claims for hire, damages, indemnification, or contribution asserted or assertable by the TSL Parties in or in connection with the Action.
Section 5.3 Scope of Release. The releases set forth in Sections 5.1 and 5.2 are intended to be broadly construed and shall expressly extend to, and encompass, all claims, demands, and causes of action of whatever kind or nature arising under contract, tort (including, without limitation, negligence, gross negligence, and fraud), statute, admiralty, general maritime law, federal law, state law, foreign law, or any other legal or equitable theory, and include, without limitation, all claims asserted, or that could have been asserted, in the Action. Without limiting the generality of the foregoing, the releases set forth herein encompass, but are not limited to, the following categories of claims to the extent arising out of or relating to the Charter-Party, the Vessel, or the Action:
(a) all off-hire claims, including claims arising from the turbocharger failure, the BWTS/boiler failure, and the cylinder liner failure;
(b) all liquidated damages claims under Clause 28 of the Charter-Party;
(c) all cargo damage claims, including, without limitation, the claim for approximately Three Million Four Hundred Twenty Thousand United States Dollars ($3,420,000) relating to iron ore oxidation;
(d) all demurrage and dead freight claims, including, without limitation, the claim for approximately One Million Two Hundred Thirty Thousand United States Dollars ($1,230,000) relating to the alleged Qingdao laycan miss;
(e) all substitute charter cost claims and claims for the cost of chartering replacement tonnage;
(f) all claims for lost sub-charter profit, including claims arising from the sub-charter with Eastbourne Bulk Carriers Ltd.;
(g) all third-party shipper cargo claims, whether by subrogation, assignment, indemnity, or otherwise;
(h) all claims relating to the alleged Maputo Deviation in September 2022;
(i) all claims for additional port costs, bunker surcharges, and related expenses;
(j) all claims for legal fees, expert costs, and litigation expenses, including, without limitation, the claim for Nine Hundred Ninety-Nine Thousand United States Dollars ($999,000) in legal fees and expert costs asserted as an element of damages by Northwind in the Action;
(k) all claims for unpaid hire, including the TSL Counterclaim for $1,620,000; and
(l) all other claims for compensatory, consequential, incidental, special, punitive, or exemplary damages, or for any other form of relief, set forth in or related to the Action.
Section 5.4 Waiver of Unknown Claims. Each Party, on behalf of itself and its respective Releasing Parties, expressly and knowingly waives any and all rights and benefits conferred by any statute, rule, principle of law, or doctrine providing that a release does not extend to claims that a releasing party does not know or suspect to exist in its favor at the time of executing the release, which if known by such party might have materially affected such party's decision to execute the release. Without limiting the foregoing, each Party specifically waives any rights it may have under Section 1542 of the California Civil Code (or any analogous provision of the law of any other jurisdiction), which provides as follows:
"A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
Each Party understands and acknowledges the significance and consequence of this specific waiver and assumes the risk of the existence of additional claims or facts that may hereafter be discovered or that may differ from the facts now believed to be true with respect to the matters released herein. Each Party further understands that the releases granted herein are also intended to cover and include, without limitation, all such claims and facts.
Section 5.5 Covenant Not to Sue. Each Party, on behalf of itself and its respective Releasing Parties, covenants and agrees that it will not commence, institute, maintain, prosecute, participate in, or voluntarily aid or assist in any action, suit, claim, proceeding, or investigation of any kind, at law or in equity, in admiralty, in any court, tribunal, or administrative body, or in any other forum, against any Released Party with respect to any claim, demand, or cause of action released or discharged pursuant to this Article 5. Each Party further covenants and agrees that it will not encourage, assist, or cooperate with any other person or entity in commencing, instituting, maintaining, or prosecuting any such action, suit, claim, or proceeding against any Released Party, except as may be required by law, subpoena, or court order. Any violation of this covenant not to sue shall entitle the aggrieved Released Party to recover from the Party violating this covenant all costs and expenses, including reasonable attorneys' fees and disbursements, incurred in defending against or otherwise responding to such action, suit, claim, or proceeding, in addition to any other remedies available at law or in equity.
Section 5.6 Preservation of Rights Against Non-Parties. Nothing in this Agreement shall be construed or interpreted to release, impair, diminish, or otherwise affect any claims, rights, or causes of action that the TSL Parties or any of the TSL Releasing Parties may have against any person or entity other than the Northwind Released Parties, or any claims, rights, or causes of action that Northwind or any of the Northwind Releasing Parties may have against any person or entity other than the TSL Released Parties. The releases set forth in this Article 5 are limited in scope to the Released Parties expressly identified herein and shall not inure to the benefit of any other person or entity. The Parties expressly acknowledge and agree that nothing in this Agreement shall release, impair, diminish, or otherwise affect any subrogation rights held by Fortis Marine Underwriters Ltd. under Hull and Machinery Policy No. FMU-HM-2020-4892, and the Parties shall cooperate reasonably with Fortis Marine Underwriters Ltd. to the extent necessary to preserve such subrogation rights.
ARTICLE 6 — DISCOVERY MATERIALS
Section 6.1 Return or Destruction of discovery Materials. Within calendar days following the Final Payment Date, each Party shall return to the producing Party, or destroy, all documents, electronically stored information ("ESI"), deposition transcripts, expert reports, and tangible things produced by the other Party or Parties in connection with the Action, including all copies, duplicates, summaries, abstracts, compilations, and derivative works created therefrom. Each Party shall provide to the other Party or Parties written certification of destruction or return, executed by counsel for the certifying Party, within ten (10) business days following the completion of such return or destruction. Such certification shall identify the categories of materials returned or destroyed and confirm that the certifying Party has complied with its obligations under this Section 6.1, subject to the exceptions set forth in Section 6.2.
Section 6.2 Exceptions. Notwithstanding the obligations set forth in Section 6.1, each Party may retain the following materials:
(a) of all discovery materials, including documents, ESI, deposition transcripts, and expert reports, to be maintained by such Party's outside counsel solely for the purposes of (i) enforcement of the terms of this Agreement or defense against any claim that may be brought in connection with the subject matter hereof, and (ii) compliance with applicable professional, ethical, and regulatory obligations, including record-retention obligations imposed upon attorneys by applicable rules of professional conduct;
(b) Documents and information that such Party is required to retain by applicable law, rule, regulation, governmental order, or professional ethical obligation, provided that such retention shall be only to the extent required and such materials shall remain subject to the confidentiality obligations set forth in this Agreement and any applicable protective order entered in the Action; and
(c) Copies of discovery materials that are embedded in or form an integral part of the work product of counsel, experts, or consultants for such Party and that are not reasonably separable from such work product without undue burden or expense.
Section 6.3 E-discovery Vendor. The TSL Parties shall, within ten (10) business days following the Final Payment Date, direct their e-discovery vendor, Lighthouse Data Analytics Inc., to return to Northwind or destroy all copies, images, databases, and reproductions of Northwind's document production materials in the possession, custody, or control of Lighthouse Data Analytics Inc. The TSL Parties shall provide Northwind with written confirmation from Lighthouse Data Analytics Inc. certifying such return or destruction within the timeframe set forth in Section 6.1. The costs of such return or destruction shall be borne by the TSL Parties.
ARTICLE 7 — DEFAULT AND REMEDIES
Section 7.1 Event of Default. An "Event of Default" shall mean the occurrence of any of the following:
(a) Payment Default. The failure of the TSL Parties to deposit any payment required under Section 3.1 into the Escrow Account in immediately available funds within business days after the applicable due date for such payment as specified in Section 3.1 (each such failure, a "Payment Default"); or
(b) Non-Payment Default. Any material breach by any Party of its representations, warranties, covenants, or other obligations under this Agreement (other than a payment obligation addressed by clause (a) above) that is not cured within fifteen (15) calendar days after written notice from the non-breaching Party specifying in reasonable detail the nature of such breach and the actions required to cure such breach.
Section 7.2 Remedies Upon Default.
(a) Payment Default. Upon the occurrence of a Payment Default under Section 7.1(a), Northwind shall be entitled, in addition to all other remedies available at law, in equity, or in admiralty, to the following remedies:
(i) Acceleration. To accelerate the entire unpaid balance of the Settlement Amount, which unpaid balance shall become immediately due and payable in full without further notice or demand;
(ii) Interest. To recover interest on the unpaid balance of the Settlement Amount at the rate of nine percent (9%) per annum (the statutory rate of interest under Section 5004 of the New York Civil Practice Law and Rules), calculated from the date of the Payment Default until such unpaid balance is paid in full;
(iii) Consent Judgment. To file and enter the Consent Judgment as provided in Section 7.3.
(b) Non-Payment Default. Upon the occurrence of a Non-Payment Default under Section 7.1(b), the non-breaching Party shall be entitled to seek specific performance, injunctive relief, or any other equitable or legal remedy available under applicable law to enforce the breaching Party's obligations under this Agreement.
The remedies set forth in this Section 7.2 are cumulative and are not exclusive of any other remedies available to the non-defaulting Party under this Agreement, at law, in equity, or in admiralty.
Section 7.3 Consent Judgment.
(a) Contemporaneously with the execution of this Agreement, the TSL Parties shall execute a proposed Consent Judgment in favor of Northwind, substantially in the form attached hereto as Exhibit C, in the amount of the unpaid balance of the Settlement Amount, together with accrued interest at the rate of nine percent (9%) per annum (the New York statutory rate) computed from the date of any Payment Default through the date of entry of such Consent Judgment.
(b) In the event of a Payment Default under Section 7.1(a), Northwind shall be entitled to file the executed Consent Judgment with the Court without further notice to or consent of the TSL Parties, and the TSL Parties hereby irrevocably consent to the entry of such Consent Judgment by the Court. The TSL Parties expressly waive any right to contest, oppose, or otherwise challenge the entry of the Consent Judgment, including, without limitation, any right to a hearing or to assert any defense or objection thereto.
(c) The executed Consent Judgment shall be held in trust by Northwind's counsel, Hargrove, Delacroix & Stern LLP, at its offices located at 600 Lexington Avenue, 28th Floor, New York, NY 10022, and shall not be filed with the Court unless and until a Payment Default under Section 7.1(a) occurs.
(d) Upon payment in full of the Settlement Amount (including any accrued interest, if applicable), Northwind shall promptly return the executed Consent Judgment to the TSL Parties' counsel, Calderwood & Harkness LLP, for destruction, and shall provide written confirmation that no copy of the executed Consent Judgment has been retained by Northwind or its counsel.
Section 7.4 Attorneys' Fees and Costs. In any action,
ARTICLE 8 — CONFIDENTIALITY
Section 8.1 Confidentiality Obligations. The Parties agree that the of this Agreement, including, without limitation, the Settlement Amount, the payment schedule set forth in Section 3.1, the funding sources described in Section 3.3, the negotiation history of this Agreement, all communications and proposals exchanged during the course of settlement discussions, and all mediation communications made during or in connection with the mediation conducted on October 28–29, 2024, before Hon. Gerald K. Fitzpatrick (Ret.) (collectively, "Confidential Information"), shall be kept strictly confidential and shall not be disclosed, disseminated, published, or otherwise communicated to any third party, except as expressly permitted by Section 8.2. The obligations of confidentiality set forth in this Article 8 shall survive the termination or expiration of this Agreement and shall remain in full force and effect in perpetuity, unless otherwise agreed in writing by all Parties.
Section 8.2 Permitted Disclosures. Notwithstanding the confidentiality obligations set forth in Section 8.1, any Party may disclose Confidential Information under the following circumstances:
(a) *Officers, Directors, Employees, and Agents.* To its officers, directors, employees, and agents who have a bona fide need to know such Confidential Information in connection with the performance of their duties, provided that such persons are informed of the confidential nature of such information and are bound by obligations of confidentiality no less restrictive than those set forth in this Article 8.
(b) Outside Counsel. To its outside counsel, including Calderwood & Harkness LLP and Konstantinou & Rizos Law Offices (for the TSL Parties) and Hargrove, Delacroix & Stern LLP and Pacific Maritime Legal Associates (for Northwind), in connection with the performance of legal services related to this Agreement or the matters described herein.
(c) Insurers. To its insurers, including, without limitation, Oceanus Mutual Protection & Indemnity Club, Fortis Marine Underwriters Ltd., and Castellan Professional Liability Insurers Ltd. (for the TSL Parties), and Northwind's respective insurers (for Northwind), as reasonably required in connection with the administration, reporting, or resolution of insurance claims or coverage matters arising out of or relating to the Charter-Party, the Vessel, or the Action.
(d) Lenders. To its lenders, including, without limitation, Meridian Capital Bank AG (for the TSL Parties), as required by applicable credit agreements, loan agreements, or lending arrangements, including, specifically, the notification required under Section 8.14 of the Credit Agreement dated April 1, 2019, between TSL and Meridian Capital Bank AG.
(e) Auditors. To its auditors, including, without limitation, Lysander & Associates, Chartered Accountants (for the TSL Parties), as reasonably required for financial reporting, audit, and accounting purposes.
(f) Tax Advisors. To its tax advisors and accountants as reasonably required for tax compliance, reporting, and planning purposes.
(g) Legal Compulsion. As required by applicable law, statute, regulation, court order, subpoena, or governmental inquiry or investigation, provided that the disclosing Party shall, to the extent legally permissible and practicable: (i) provide the other Party or Parties with prompt written notice of any such required disclosure, together with a copy of any subpoena, court order, or other legal process requiring such disclosure; (ii) cooperate reasonably with the other Party or Parties in seeking a protective order, confidentiality agreement, or other appropriate remedy to limit the scope of the required disclosure; and (iii) disclose only the minimum Confidential Information reasonably necessary to comply with such legal requirement.
Section 8.3 Public Statements. Neither Party shall issue, authorize, or cause to be issued any press release, public statement, social media post, investor communication, or other public disclosure or communication regarding the settlement, this Agreement, or the terms hereof, without the prior written consent of all other Parties, which consent may be withheld in such Party's sole and absolute discretion. In the event that any Party is compelled by applicable law, regulation (including, without limitation, securities regulations), stock exchange listing rule, or governmental directive to make a public disclosure relating to the settlement or this Agreement, such Party shall use reasonable efforts to consult with the other Party or Parties in advance regarding the content and timing of such disclosure and shall limit the scope of such disclosure to the minimum required by applicable law.
Section 8.4 Mediation Communications. All communications, offers, proposals, counterproposals, statements, admissions, documents, and other materials made, exchanged, prepared, or submitted during or in connection with the mediation conducted on October 28–29, 2024, before Hon. Gerald K. Fitzpatrick (Ret.) at Bayside Dispute Resolution Services LLC, shall remain strictly confidential and privileged in accordance with all applicable mediation confidentiality rules, statutes, and protections, including, without limitation, Section 1748 of the New York Civil Practice Law and Rules, the rules and procedures of Bayside Dispute Resolution Services LLC, and any confidentiality agreement or order entered into in connection with the mediation. No Party shall seek to introduce or rely upon any mediation communication in any proceeding, whether judicial, arbitral, administrative, or otherwise, for any purpose whatsoever, except to enforce the terms of this Agreement.
Section 8.5 Remedies for Breach of Confidentiality. Each Party acknowledges and agrees that a breach of the confidentiality provisions of this Article 8 would cause irreparable harm and injury to the non-breaching Party or Parties that could not be adequately compensated by monetary damages alone. Accordingly, in the event of any actual or threatened breach of this Article 8, the non-breaching Party shall be entitled to seek temporary, preliminary, and permanent injunctive relief, specific performance, and other equitable remedies from any court of competent jurisdiction, in addition to any and all other remedies available at law or in equity, without the necessity of proving actual damages and without the requirement of posting any bond, surety, or other security.
ARTICLE 9 — REPRESENTATIONS AND WARRANTIES
Section 9.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to each other Party, as of the date of this Agreement and as of the Effective Date, as follows:
(a) Authority. Such Party is a legal entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization. Such Party has full power, capacity, and authority to enter into this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by such Party have been duly authorized by all necessary corporate, partnership, limited liability company, or other organizational action, including, without limitation, any required resolutions of the board of directors, managing members, shareholders, or other governing body, and no further approval, consent, authorization, or action is required on the part of such Party or any other person or entity for the valid and binding execution, delivery, and performance of this Agreement.
(b) No Assignment. Such Party has not assigned, transferred, conveyed, pledged, hypothecated, or otherwise disposed of any claim, demand, obligation, right, interest, or cause of action released or discharged pursuant to this Agreement, and no other person or entity has any interest in any such claim, demand, obligation, right, interest, or cause of action by virtue of assignment, subrogation, lien, encumbrance, or otherwise, except as expressly stated herein with respect to insurer subrogation rights and the preservation of Fortis Marine Underwriters Ltd.'s rights under Section 5.6.
(c) No Bankruptcy. No Party is the subject of any pending or, to its knowledge, contemplated bankruptcy, insolvency, receivership, liquidation, reorganization, composition, arrangement, or similar proceeding under any applicable law, and no Party has any present intention of commencing, filing, or consenting to any such proceeding. No Party is insolvent, as defined under applicable bankruptcy or insolvency law, and no Party has made any general assignment for the benefit of creditors.
(d) No Other Proceedings. To its knowledge, no Party is aware of any pending or threatened action, suit, proceeding, claim, investigation, or governmental inquiry (other than the Action) that would materially impair such Party's ability to perform its obligations under this Agreement or that would materially affect the validity or enforceability of this Agreement.
(e) Voluntary Execution. Each Party has entered into this Agreement voluntarily, with full knowledge of its terms, consequences, and legal effect, and after consultation with and upon the advice of counsel of its own choosing. No Party has been coerced, pressured, unduly influenced, or induced by any representation, statement, or promise not expressly set forth herein to enter into this Agreement.
Section 9.2 Additional Representations by TSL Parties.
(a) TSL represents and warrants that it has obtained, or will obtain prior to the Effective Date, all necessary corporate approvals required under the laws of the Hellenic Republic and its constitutive documents (including its Articles of Association and any applicable internal regulations), including any required board of directors resolutions, for the execution, delivery, and performance of this Agreement. TSL confirms that it has consulted with its Greek local counsel, Konstantinou & Rizos Law Offices, 15 Vasilissis Sofias Avenue, Athens 106 71, Greece, with respect to the foregoing approvals and the compliance of this Agreement with applicable Greek law.
(b) Aegean Fortuna Shipholding represents and warrants that it has obtained all necessary corporate approvals required under the laws of the Republic of Liberia and its constitutive documents for the execution, delivery, and performance of this Agreement.
(c) TSL represents and warrants that the payment of the Settlement Amount and the performance of its other obligations under this Agreement will not cause TSL or any of its subsidiaries (including Aegean Fortuna Shipholding) to violate any covenant, condition, or obligation, or trigger any event of default, cross-default, or mandatory prepayment, under the Credit Agreement dated April 1, 2019, by and between TSL and Meridian Capital Bank AG (the "Credit Agreement"), or under any other loan agreement, credit facility, indenture, or financing arrangement to which TSL or any of its subsidiaries is a party. TSL further represents that it will provide written notice of this settlement to Meridian Capital Bank AG within five (5) business days of the Effective Date, as required by Section 8.14 of the Credit Agreement, in light of the fact that the Settlement Amount of Seven Million Eight Hundred Fifty Thousand United States Dollars ($7,850,000) exceeds the Five Million United States Dollar ($5,000,000) notification threshold set forth in such section.
Section 9.3 Additional Representations by Northwind.
Northwind represents and warrants that it has obtained, or will obtain prior to the Effective Date, all necessary corporate approvals required under the laws of the Republic of the marshall Islands and its constitutive documents (including its Articles of Incorporation and Bylaws) for the execution, delivery, and performance of this Agreement. Northwind confirms that it has consulted with its marshall Islands counsel, Pacific Maritime Legal Associates, with respect to the foregoing approvals and the compliance of this Agreement with applicable marshall Islands law.
ARTICLE 10 — LENDER AND INSURER NOTIFICATIONS
Section 10.1 Lender Notification. TSL shall provide written notification to Meridian Capital Bank AG of the execution of this Agreement and the settlement of the Action within five (5) business days of the Effective Date, in accordance with the requirements of Section 8.14 of the Credit Agreement dated April 1, 2019. Such notification shall be sent to Meridian Capital Bank AG at the following address: Ballindamm 40, 20095 Hamburg, Germany, Attention: Lukas Brandt, Relationship Manager — Maritime Finance Division. The form of such notification letter shall be substantially in the form attached hereto as Exhibit E. TSL shall provide Northwind's counsel with a copy of such notification letter promptly following its delivery to Meridian Capital Bank AG.
Section 10.2 P&I Club Notification and Approval. TSL shall provide a complete copy of this Agreement, together with such additional documentation as may be reasonably requested, to Oceanus Mutual Protection & Indemnity Club (Policy No. OCE-P&I-2020-TSL-0047) for review and consideration by the Oceanus P&I Club Board of Directors in connection with the approval of the P&I Contribution of Two Million Five Hundred Thousand United States Dollars ($2,500,000). All communications with the P&I Club regarding this Agreement shall be directed to: David Okafor, Claims Handler, Oceanus Mutual Protection & Indemnity Club, Clarendon House, 2 Church Street, Hamilton HM 11, Bermuda. TSL shall use commercially reasonable efforts to obtain approval from the Oceanus Board of Directors on or before November 22, 2024, and shall promptly notify Northwind's counsel of the outcome of such Board action. In the event that Board approval is delayed or denied, TSL shall promptly notify Northwind's counsel in writing and the Parties shall confer in good faith regarding any necessary adjustments to the funding or timing of the Settlement Amount, provided that the TSL Parties' obligation to pay the Settlement Amount in full in accordance with Section 3.1 shall not be diminished or excused by any delay in or denial of Board approval.
Section 10.3 H&M Insurer Notification. TSL shall provide written notification of this settlement to Fortis Marine Underwriters Ltd. (Hull and Machinery Policy No. FMU-HM-2020-4892) within ten (10) business days of the Effective Date. Such notification shall confirm that the terms of this Agreement do not impair, diminish, or otherwise affect Fortis Marine Underwriters Ltd.'s subrogation rights under such policy. All communications with Fortis Marine Underwriters Ltd. regarding this Agreement shall be directed to: Catherine Allsworth, Underwriter, Fortis Marine Underwriters Ltd., 50 Fenchurch Street, London EC3M 3JY, United Kingdom.
Section 10.4 D&O Insurer Notification. TSL shall provide written notification of the settlement and resolution of the Action to Castellan Professional Liability Insurers Ltd., 25 St. Stephen's Green, Dublin 2, D02 XY47, Ireland, within ten (10) business days of the Effective Date, or such earlier time as may be required by the terms of any applicable directors' and officers' liability insurance policy.
ARTICLE 11 — INDEMNIFICATION
Section 11.1 Indemnification by TSL Parties. The TSL Parties, jointly and severally, shall indemnify, defend, and hold harmless the Northwind Released Parties from and against any and all claims, demands, actions, causes of action, suits, damages, losses, liabilities, obligations, costs, and expenses (including, without limitation, reasonable attorneys' fees, expert fees, and court costs) arising out of, relating to, or resulting from any breach by the TSL Parties of any representation, warranty, covenant, or obligation