Dated April 2023
$100,000,000
TERM LOAN FACILITY
MAJURO SHIPPING COMPANY INC.
TOKU SHIPPING COMPANY INC.
MEJATO SHIPPING COMPANY INC.
RAKARU SHIPPING COMPANY INC.
EBADON SHIPPING COMPANY INC.
PULAP SHIPPING COMPANY INC.
WENO SHIPPING COMPANY INC.
ERIKUB SHIPPING COMPANY INC.
WOTHO SHIPPING COMPANY INC.
as joint and several Borrowers
and
DIANA SHIPPING INC.
as Parent Guarantor
and
DANISH SHIP FINANCE A/S
as Original Lender
FACILITY AGREEMENT
relating to
(i) the refinancing of the Existing Indebtedness secured on m.vs. "ALCMENE", "SEATTLE", "PHAIDRA",
"ELECTRA", "ASTARTE", "P. S. PALIOS" and "G. P. ZAFIRAKIS",
(ii) the refinancing of the Borrowers' equity in respect of m.vs "CRYSTALIA " and "ATALANDI "
and (iii) the provision to the Borrowers of working capital for their general corporate purposes
Index
Clause Page
Section 1 Interpretation ........................................................................................................................... 3
1 Definitions and Interpretation .................................................................................................... 3
Section 2 The Facility ..............................................................................................................................30
2 The Facility .................................................................................................................................30
3 Purpose......................................................................................................................................30
4 Conditions of Utilisation ............................................................................................................31
Section 3 Utilisation................................................................................................................................33
5 Utilisation ..................................................................................................................................33
Section 4 Repayment, Prepayment and Cancellation ............................................................................36
6 Repayment ................................................................................................................................36
7 Prepayment and Cancellation ...................................................................................................37
Section 5 Costs of Utilisation ..................................................................................................................41
8 Interest ......................................................................................................................................41
9 Interest Periods .........................................................................................................................42
10 Changes to the Calculation of Interest ......................................................................................42
11 Fees ...........................................................................................................................................47
Section 6 Additional Payment Obligations .............................................................................................49
12 Tax Gross Up and Indemnities ...................................................................................................49
13 Increased Costs .........................................................................................................................52
14 Other Indemnities .....................................................................................................................54
15 Mitigation by the Lender and force Majeure ............................................................................56
16 Costs and Expenses ...................................................................................................................57
Section 7 Guarantees and Joint and Several Liability of Borrowers .......................................................59
17 Guarantee and Indemnity – Parent Guarantor .........................................................................59
18 Joint and Several Liability of the Borrowers ..............................................................................62
Section 8 Representations, Undertakings and Events of Default ..........................................................64
19 Representations ........................................................................................................................64
20 Information Undertakings .........................................................................................................71
21 Financial Covenants ...................................................................................................................74
22 General Undertakings ...............................................................................................................76
23 Insurance Undertakings ............................................................................................................83
24 General Ship Undertakings ........................................................................................................89
25 Security Cover ...........................................................................................................................96
26 Earnings Accounts and Application of Earnings ........................................................................98
27 Events of Default .......................................................................................................................99
Section 9 The Lender and the Obligors ................................................................................................104
28 Changes to the Lender ............................................................................................................104
29 Changes to the Transaction Obligors ......................................................................................105
Section 10 Administration ....................................................................................................................107
30 Payment Mechanics ................................................................................................................107
31 Set-Off .....................................................................................................................................109
32 Conduct of Business by the Lender .........................................................................................109
33 Bail-In .......................................................................................................................................109
34 Notices .....................................................................................................................................109
35 Calculations and Certificates ...................................................................................................111
36 Partial Invalidity .......................................................................................................................112
37 Remedies and Waivers ............................................................................................................112
38 Entire Agreement ....................................................................................................................112
39 Settlement or Discharge Conditional ......................................................................................112
40 Irrevocable Payment ...............................................................................................................112
41 Amendments ...........................................................................................................................113
42 Confidential Information .........................................................................................................113
43 Confidentiality of Funding Rates .............................................................................................116
44 Counterparts ...........................................................................................................................117
Section 11 Governing Law and Enforcement .......................................................................................118
45 Governing Law .........................................................................................................................118
46 Enforcement ............................................................................................................................118
Schedules
Schedule 1 The Parties .........................................................................................................................119
Part A The Obligors ................................................................................................................. 119
Part B The Original Lender ...................................................................................................... 121
Schedule 2 Conditions Precedent ........................................................................................................122
Part A Conditions Precedent to Utilisation Request .............................................................. 122
Part B Conditions Precedent to Utilisation under each Tranche ............................................ 126
Schedule 3 Utilisation Request .............................................................................................................128
Schedule 4 Form of Compliance Certificate .........................................................................................130
Schedule 5 Details of the Ships ............................................................................................................131
Schedule 6 Timetables..........................................................................................................................133
Execution
Execution Pages ....................................................................................................................................134
THIS AGREEMENT
is made on April 2023
PARTIES
(1)
MAJURO SHIPPING CO MPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower A
")
(2)
TOKU
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower B
")
(3)
MEJATO
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower C
")
(4)
RAKARU
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower D
")
(5)
EBADON
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower E
")
(6)
PULAP
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower F
")
(7)
WENO
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower G
")
(8)
ERIKUB
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower H
")
(9)
WOTHO
SHIPPING COMPANY INC.
, a corporation incorporated in the Republic of The Marshall
Islands whose registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, The Marshall Islands as a borrower ("
Borrower I
")
(10)
DIANA SHIPPING INC.
, a corporation incorporated in the Republic of The Marshall Islands whose
registered address is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960,
The Marshall Islands as guarantor (the "
Parent Guarantor
")
(11)
DANISH SHIP FINANCE A/S
Original Lender
")
BACKGROUND
The Lender has agreed to make available to the Borrowers a term loan facility of up to the lesser of (i)
$100,000,000 and (ii) 60 per cent. of the aggregate Initial Market Value of the Ships in nine Tranches for
the purposes of:
(a)
refinancing the Existing Indebtedness secured on Ship A, Ship B, Ship C, Ship D and Ship E
under Existing Loan Agreement A;
(b)
refinancing the Existing Indebtedness secured on Ship F and Ship G under Existing Loan
Agreement B;
(c)
refinancing the Borrowers' equity which has been applied against prepayment of the
indebtedness under Loan Agreement C; and
(d)
providing the Borrowers with working capital for their general corporate purposes.
OPERATIVE PROVISIONS
SECTION 1
INTERPRETATION
1
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"
Account Bank
" means, in relation to the Earnings Account held in the name of:
(a)
Borrower B, Borrower F, Borrower G, Borrower H and Borrower I, ABN AMRO Bank N.V.
acting through its office at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands,
and registered with the Dutch Commercial Register (
Handelsregister
) under number
34334259; and
(b)
Borrower A, Borrower C, Borrower D and Borrower E, Joh. Berenberg, Gossler & Co. KG,
acting through its office at Neuer Jungfernstieg 20, 20354 Hamburg, Germany,
or any replacement bank or other financial institution as may be approved by the
Lender.
"
Account Security
" means a document creating Security over any Earnings Account in agreed
form.
"
Advance
" means a borrowing of all or part of a Tranche under this Agreement.
"
Affiliate
" means, in relation to any person, a Subsidiary of that person or a Holding Company of
that person or any other Subsidiary of that Holding Company.
"
Annex VI
" means Annex VI of the Protocol of 1997 (as subsequently amended from time to time)
to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol),
as modified by the Protocol of 1978 relating thereto.
"
Anti-Money Laundering Laws
" means all applicable anti-corruption laws, anti-bribery laws, anti-
money laundering laws and reporting requirements, regulations or rules in any applicable
jurisdiction.
"
Approved Brokers
" means any firm or firms of insurance brokers approved in writing by the
Lender.
"
Approved Classification
" means, in relation to a Ship:
(a)
as at the date of this Agreement, the classification in relation to that Ship specified in
Schedule 5 (
Details of the Ships
);
(b)
the equivalent classification with another Approved Classification Society; or
(c)
another classification approved by the Lender as its classification, at the request of the
relevant Borrower.
"
Approved Classification Society
" means, in relation to a Ship:
(a)
in Schedule 5 (
Details of the Ships
) subject to Clause 4.5 (
Conditions subsequent
) and
paragraph (c) of Clause 24.3 (
Repair and classification
); and
(b)
American Bureau of Shipping, Bureau Veritas, Det Norske Veritas/Germanischer Lloyd,
Lloyd's Register, Nippon Kaiji, Polish Register of Shipping, Registro Italiano Navale (RINA)
or any other classification society which is a member of the International Association of
Classification Societies and is approved in writing by the Lender.
"
Approved Commercial Manager
" means, in relation to a Ship:
(a)
as at the date of this Agreement, the manager specified as the approved commercial
manager in relation to that Ship in Schedule 5 (
Details of the Ships
);
(b)
DWM or Diana Shipping; or
(c)
any other person approved in writing by the Lender, as the commercial manager of that
Ship.
"
Approved Flag
" means, in relation to a Ship, as at the date of this Agreement, the flag in relation
to that Ship specified in Schedule 5 (
Details of the Ships
) or such other flag and, if applicable port
of registry, approved in writing by the Lender and a reference to "the Approved Flag" in respect of
a Ship shall be a reference to the flag and, if applicable port of registry, under which that Ship is
then flagged with the agreement of the Lender.
"
Approved Manager
" means, in relation to a Ship, the Approved Commercial Manager or the
Approved Technical Manager of that Ship.
"
Approved Technical Manager
" means in relation to a Ship:
(a)
manager in relation to that Ship in Schedule 5 (
Details of the Ships
);
(b)
DWM or Diana Shipping; or
(c)
any other person approved in writing by the Lender, as the technical manager of that Ship.
"
Approved Valuer
" means Arrow Valuations, Braemar ACM Valuations, Clarksons, Fearnleys,
Galbraith, Howe Robinson and SSY (or any Affiliate of such person through which valuations are
commonly issued) or any other firm or firms of independent sale and purchase shipbrokers
approved in writing by the Lender.
"
Article 55 BRRD
" means Article 55 of Directive 2014/59/EU establishing a framework for the
recovery and resolution of credit institutions and investment firms.
"
Assignable Charter
" means, in relation to a Ship:
(a)
any time or consecutive voyage Charter in respect of that Ship which exceeds or, by virtue
of any optional extensions, is capable of exceeding, a duration of 12 months, made on
terms and with a third party charterer approved in writing by the Lender; and
(b)
any intra-Group time or consecutive voyage Charter for any tenor in respect of that Ship.
"
Authorisation
" means an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation, legalisation or registration.
"
Availability Period
" means, in relation to each Tranche, the period from and including the date
of this Agreement to and including 1 May 2023.
"
Available Facility
" means the Commitment minus:
(a)
the amount of the outstanding Loan; and
(b)
in relation to any proposed Utilisation, the amount of any Advance that is due to be made
on or before the proposed Utilisation Date.
"
Bail-In Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In Legislation
" means:
(a)
in relation to an EEA Member Country which has implemented, or which at any time
implements, Article 55 BRRD, the relevant implementing law or regulation as described in
the EU Bail-In Legislation Schedule from time to time;
(b)
in relation to any state other than such an EEA Member Country and the United Kingdom,
any analogous law or regulation from time to time which requires contractual recognition
of any Write-down and Conversion Powers contained in that law or regulation; and
(c)
in relation to the United Kingdom, the UK Bail-In Legislation.
"
Borrower
" means Borrower A, Borrower B, Borrower C, Borrower D, Borrower E, Borrower F,
Borrower G, Borrower H or Borrower I.
"
Break Costs
" means all costs, liability or loss including a loss of prospective profit, premiums or
penalties incurred by the Lender in the circumstances contemplated by Clause 14.2 (
Other
indemnities
), or as a result of it receiving any prepayment of all or any part of the Loan (whether
pursuant to Clause 6 (
Repayment) and Clause 7 (Prepayment and Cancellation
) or otherwise), or
any other payment under or in relation to the Finance Documents on a day other than the due
date for payment of the sum in question, and includes (without limitation) any losses or costs
incurred in such circumstances in liquidating or re-employing any funding obtained from third
parties acquired to effect or maintain the Loan, and any liabilities, expenses or losses incurred by
the Lender in terminating or reversing, or otherwise in connection with, any interest rate and/or
currency swap, transaction or arrangement entered into by the Lender to hedge any exposure
arising under this Agreement, or in terminating or reversing, or otherwise in connection with, any
open position arising under this Agreement or a number of transactions of which this Agreement
is one.
"
Business Day
" means a day (other than a Saturday or Sunday) on which banks are open for
general business in Athens, Copenhagen and:
(a)
New York; and
(b)
(in relation to the fixing of an interest rate) which is a US Government Securities Business
Day.
"
Change of Control
" means the occurrence of any of the following acts, events or circumstances
without the prior written consent of the Lender:
(a)
the shares of the Parent Guarantor cease to be listed on the New York Stock Exchange or
any other stock exchange acceptable to the Lender; and/or
(b)
the Palios Family (either directly or indirectly through companies legally and beneficially
owned) ceases to own at least 12.5 per cent. of the common stock in the Parent
Guarantor; and/or
(c)
the Palios Family (either directly or indirectly through companies legally and beneficially
owned) ceases to control at least 25 per cent. of the maximum number of votes that might
be cast in respect of any matter submitted to the vote of the shareholders of the Parent
Guarantor; and/or
(d)
Semiramis Paliou ceases to hold the Chief Executive Officer position in the Parent
Guarantor and active role in the decision making in respect of the Parent Guarantor.
"
Charter
" means, in relation to a Ship, any charter relating to that Ship, or other contract for its
employment, whether or not already in existence.
"
Charter Guarantee
" means any guarantee, bond, letter of credit or other instrument (whether or
not already issued) supporting a Charter.
"
Charterparty Assignment
" means, in respect of any Assignable Charter, a first priority assignment
of the rights of the relevant Borrower in respect of that Assignable Charter in agreed form.
"
Code
" means the US Internal Revenue Code of 1986.
"
Commercial Management Agreement
" means the agreement entered into between a Borrower
and the Approved Commercial Manager regarding the commercial management of a Ship.
"
Commitment
" means $100,000,000, to the extent not cancelled or reduced under this
Agreement.
"
Compliance Certificate
" means a certificate in the form set out in Schedule 4 (
Form of Compliance
Certificate
) or in any other form agreed between the Parent Guarantor and the Lender.
"
Confidential Information
" means all information relating to any Transaction Obligor, the Group,
the Finance Documents or the Facility of which the Lender becomes aware in its capacity as, or for
the purpose of becoming, the Lender or which is received by the Lender in relation to, or for the
purpose of becoming the Lender under, the Finance Documents or the Facility from any member
of the Group or any of its advisers in whatever form, and includes information given orally and any
document, electronic file or any other way of representing or recording information which
contains or is derived or copied from such information but excludes:
(a)
information that:
(i)
is or becomes public information other than as a direct or indirect result of any
breach by the Lender of Clause 42 (
Confidential Information
);
(ii)
is identified in writing at the time of delivery as non-confidential by any member
of the Group or any of its advisers; or
(iii)
is known by the Lender before the date the information is disclosed to it by any
member of the Group or any of its advisers or is lawfully obtained by the Lender
after that date, from a source which is, as far as the Lender is aware, unconnected
with the Group and which, in either case, as far as the Lender is aware, has not
been obtained in breach of, and is not otherwise subject to, any obligation of
confidentiality; and
(b)
any Funding Rate.
"
Confidentiality Undertaking
" means a confidentiality undertaking in substantially the
appropriate form recommended by the LMA from time to time or in any other form agreed
between the Borrowers and the Lender.
"
Deed of Release
" means, in respect of each Existing Loan Agreement, a deed releasing the
relevant Existing Security in a form acceptable to the Lender.
"
Default
" means an Event of Default or a Potential Event of Default.
"
Delegate
" means any delegate, agent, attorney or co-trustee appointed by the Lender.
"
Diana Shipping
" means Diana Shipping Services S.A., a company incorporated and existing under
the laws of Panama having its registered office at Edificio Universal, Piso 12, Avenida Federico
Boyd, Panama, Republic of Panama and maintaining an office at 16 Pendelis Street, 175 64, Palaio
Faliro, Greece.
"
Disruption Event
" means either or both of:
(a)
a material disruption to those payment or communications systems or to those financial
markets which are, in each case, required to operate in order for payments to be made in
connection with the Facility (or otherwise in order for the transactions contemplated by
the Finance Documents to be carried out) which disruption is not caused by, and is beyond
the control of, any of the Parties or, if applicable, any Transaction Obligor; or
(b)
the occurrence of any other event which results in a disruption (of a technical or systems-
related nature) to the treasury or payments operations of a Party or, if applicable, any
Transaction Obligor preventing that, or any other, Party or, if applicable, any Transaction
Obligor:
(i)
from performing its payment obligations under the Finance Documents; or
(ii)
from communicating with other Parties or, if applicable, any Transaction Obligor
in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party or, if
applicable, any Transaction Obligor whose operations are disrupted.
"
Document of Compliance
" has the meaning given to it in the ISM Code.
"
dollars
" and "
$
" mean the lawful currency, for the time being, of the United States of America.
"
DWM
" means Diana Wilhelmsen Management Limited, a company incorporated and existing
under the laws of the Republic of Cyprus having its registered office at 21 Vasili Michailidi Street,
3026 Limassol, Cyprus and maintaining an office at 350 Syngrou Avenue, Kalithea, Greece.
"
Earnings
" means, in relation to a Ship, all moneys whatsoever which are now, or later become,
payable (actually or contingently) to a Borrower or the Lender and which arise out of or in
connection with or relate to the use or operation of that Ship, including (but not limited to):
(a)
the following, save to the extent that any of them is, with the prior written consent of the
Lender, pooled or shared with any other person:
(i)
all freight, hire and passage moneys including, without limitation, all moneys
payable under, arising out of or in connection with a Charter or a Charter
Guarantee;
(ii)
the proceeds of the exercise of any lien on sub-freights;
(iii)
compensation payable to a Borrower or the Lender in the event of requisition of
that Ship for hire or use;
(iv)
remuneration for salvage and towage services;
(v)
demurrage and detention moneys;
(vi)
without prejudice to the generality of sub-paragraph (i) above, damages for
breach (or payments for variation or termination) of any charterparty or other
contract for the employment of that Ship;
(vii)
all moneys which are at any time payable under any Insurances in relation to loss
of hire;
(viii)
all monies which are at any time payable to a Borrower in relation to general
average contribution; and
(b)
if and whenever that Ship is employed on terms whereby any moneys falling within sub-
paragraphs (i) to (viii) of paragraph (a) above are pooled or shared with any other person,
that proportion of the net receipts of the relevant pooling or sharing arrangement which
is attributable to that Ship.
"
Earnings Account
" means, in relation to a Borrower:
(a)
an account in the name of that Borrower with the Account Bank designated "Earnings
Account";
(b)
any other account in the name of that Borrower with the Account Bank which may, with
the prior written consent of the Lender, be opened in lieu of the account referred to in
paragraph (a) above, irrespective of the number or designation of such replacement
account; or
(c)
any sub-account of any account referred to in paragraphs (a) or (b) above.
"
EEA Member Country
" means any member state of the European Union, Iceland, Liechtenstein
and Norway.
"
Environmental Approval
" means any present or future permit, ruling, variance or other
Authorisation required under Environmental Law.
"
Environmental Claim
" means any claim by any governmental, judicial or regulatory authority or
any other person which arises out of an Environmental Incident or an alleged Environmental
Incident or which relates to any Environmental Law and, for this purpose, "
claim
" includes a claim
for damages, compensation, contribution, injury, fines, losses and penalties or any other payment
of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing;
an order or direction to take, or not to take, certain action or to desist from or suspend certain
action; and any form of enforcement or regulatory action, including the arrest or attachment of
any asset.
"
Environmental Incident
" means:
(a)
any release, emission, spill or discharge of Environmentally Sensitive Material whether
within a Ship or from a Ship into any other vessel or into or upon the air, water, land or
soils (including the seabed) or surface water; or
(b)
any incident in which Environmentally Sensitive Material is released, emitted, spilled or
discharged into or upon the air, water, land or soils (including the seabed) or surface water
from a vessel other than any Ship and which involves a collision between any Ship and
such other vessel or some other incident of navigation or operation, in either case, in
connection with which a Ship is actually or potentially liable to be arrested, attached,
detained or injuncted and/or a Ship and/or any Transaction Obligor and/or any operator
or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or
administrative action; or
(c)
any other incident in which Environmentally Sensitive Material is released, emitted, spilled
or discharged into or upon the air, water, land or soils (including the seabed) or surface
water otherwise than from a Ship and in connection with which a Ship is actually or
potentially liable to be arrested and/or where any Transaction Obligor and/or any
operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any
legal or administrative action.
"
Environmental Law
" means any present or future law relating to vessel disposal, energy
efficiency, carbon reduction, emissions, emissions trading, pollution or protection of human
health or the environment, to conditions in the workplace, to the carriage, generation, handling,
storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened
releases of Environmentally Sensitive Material.
"
Environmentally Sensitive Material
" means and includes all contaminants, oil, oil products, toxic
substances and any other substance (including any chemical, gas or other hazardous or noxious
substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"
EU Bail-In Legislation Schedule
" means the document described as such and published by the
LMA from time to time.
"
EU Ship Recycling Regulation
" means Regulation (EU) No 1257/2013 of the European Parliament
and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No
1013/2006 and Directive 2009/16/EC.
"
Event of Default
" means any event or circumstance specified as such in Clause 27 (
Events of
Default
).
"
Existing Agent
" means, in respect of Existing Loan Agreement A and Existing Loan Agreement B,
BNP Paribas, acting through its office at 9 rue du débarcadère, 93500 Pantin, France.
"
Existing Indebtedness
" means, in respect of an Existing Loan Agreement, at any date, the
outstanding Financial Indebtedness of the Parent Guarantor or, as the case may be, the relevant
Borrowers on that date under that Existing Loan Agreement.
"
Existing Loan Agreement
" means Existing Loan Agreement A or Existing Loan Agreement B.
"
Existing Loan Agreement A
" means the loan agreement dated 13 July 2018 (as from time to time
amended and/or supplemented) and entered into between (i) the Parent Guarantor as borrower,
(ii) the banks and financial institutions listed in schedule 1 therein as lenders, (iii) BNP Paribas as
swap bank, bookrunner and security trustee and (iv) the Existing Agent as agent secured on Ship
A, Ship B, Ship C, Ship D and Ship E.
"
Existing Loan Agreement B
" means the loan agreement dated 18 December 2014 (as from time
to time amended and/or supplemented) and entered into between (i) Borrower F and Borrower E
as joint and several borrowers, (ii) the banks and financial institutions listed in schedule 1 therein
as lenders, (iii) BNP Paribas as swap bank and security trustee and (iv) the Existing Agent as agent
secured on Ship F and Ship G.
"
Existing Security
" means, in respect of an Existing Loan Agreement, any Security created to
secure the relevant Existing Indebtedness under Existing Loan Agreement A and Existing Loan
Agreement B.
"
Facility
" means the term loan facility made available under this Agreement as described in Clause
2 (
The Facility
).
"
Facility Office
" means the office or offices through which the Lender will perform its obligations
under this Agreement.
"
FATCA
" means:
(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental
agreement between the US and any other jurisdiction, which (in either case) facilitates the
implementation of any law or regulation referred to in paragraph (a) above; or
(c)
any agreement pursuant to the implementation of any treaty, law or regulation referred
to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government
or any governmental or taxation authority in any other jurisdiction.
"
FATCA Deduction
" means a deduction or withholding from a payment under a Finance Document
required by FATCA.
"
FATCA Exempt Party
" means a Party that is entitled to receive payments free from any FATCA
Deduction.
"
Finance Document
" means:
(a)
this Agreement;
(b)
the Utilisation Request;
(c)
any Security Document;
(d)
any Manager's Undertaking;
(e)
any Subordination Agreement;
(f)
any other document which is executed for the purpose of establishing any priority or
subordination arrangement in relation to the Secured Liabilities; or
(g)
any other document designated as such by the Lender and the Borrowers.
"
Financial Indebtedness
" means any indebtedness for or in relation to:
(a)
moneys borrowed;
(b)
any amount raised by acceptance under any acceptance credit facility or dematerialised
equivalent;
(c)
any amount raised pursuant to any note purchase facility or the issue of bonds, notes,
debentures, loan stock or any similar instrument;
(d)
the amount of any liability in relation to any lease or hire purchase contract which would,
in accordance with GAAP, be treated as a balance sheet liability;
(e)
receivables sold or discounted (other than any receivables to the extent they are sold on
a non-recourse basis);
(f)
any amount raised under any other transaction (including any forward sale or purchase
agreement) of a type not referred to in any other paragraph of this definition having the
commercial effect of a borrowing;
(g)
any derivative transaction entered into in connection with protection against or benefit
from fluctuation in any rate or price (and, when calculating the value of any derivative
transaction, only the marked to market value (or, if any actual amount is due as a result
of the termination or close-out of that derivative transaction, that amount) shall be taken
into account);
(h)
any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or
documentary letter of credit or any other instrument issued by a bank or financial
institution; and
(i)
the amount of any liability in relation to any guarantee or indemnity for any of the items
referred to in paragraphs (a) to (h) above.
"
Financial Year
" means the 12-month period commencing on 1 January and ending on 31
December.
"
Fleet Vessels
" means all of the vessels (including, but not limited to, the Ships) from time to time
wholly owned by members of the Group or bareboat chartered by members of the Group on long
term leases the duration of which is equal to or exceeds (or is capable of exceeding by virtue of
any optional extensions) 12 months (each a "
Fleet Vessel
").
"
Funding Rate
" means any individual rate notified by the Lender to an Obligor pursuant to any
Finance Document.
"
GAAP
" means generally accepted accounting principles in the United States of America.
"
General Assignment
" means, in relation to a Ship, the general assignment creating Security over:
(a)
that Ship's Earnings, its Insurances and any Requisition Compensation in relation to that
Ship; and
(b)
any Charter and any Charter Guarantee in relation to that Ship,
in agreed form.
"
Group
" means the Parent Guarantor and its Subsidiaries from time to time (including, for the
avoidance of doubt and without limitation, Diana Shipping).
"
Historic Term SOFR
" means, in relation to the Loan or any part of the Loan, the most recent
applicable Term SOFR for a period equal in length to the Interest Period of the Loan or that part
of the Loan and which is as of a day which is no more than three US Government Securities
Business Days before the Quotation Day.
"
Holding Company
" means, in relation to a person, any other person in relation to which it is a
Subsidiary.
"
Indemnified Person
" has the meaning given to it in Clause 14.2 (
Other indemnities
).
"
Initial Market Value
" means, in relation to a Ship, the Market Value of that Ship calculated in
accordance with the valuation relative thereto referred to in paragraph 6.1 of Part A of Schedule
2 (
Conditions Precedent
).
"
Insurances
" means, in relation to a Ship:
(a)
all policies and contracts of insurance, including entries of that Ship in any protection and
indemnity or war risks association, effected in relation to that Ship, the Earnings or
otherwise in relation to that Ship whether before, on or after the date of this Agreement;
and
(b)
all rights and other assets relating to, or derived from, any of such policies, contracts or
entries, including any rights to a return of premium and any rights in relation to any claim
whether or not the relevant policy, contract of insurance or entry has expired on or before
the date of this Agreement.
"
Interest Payment Date
" has the meaning given to it in paragraph (a) of Clause 8.1 (
Payment of
interest
).
"
Interest Period
" means, in relation to the Loan or any part of the Loan, each period determined
in accordance with Clause 9 (
Interest Periods
) and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 8.3 (
Default interest
).
"
Interpolated Historic Term SOFR
" means, in relation to the Loan or any part of the Loan, the rate
(rounded to the same number of decimal places as Term SOFR) which results from interpolating
on a linear basis between:
(a)
either:
(i)
the most recent applicable Term SOFR (as of a day which is not more than three
US Government Securities Business Days before the Quotation Day) for the
longest period (for which Term SOFR is available) which is less than the Interest
Period of the Loan or that part of the Loan; or
(ii)
if no such Term SOFR is available for a period which is less than the Interest Period
of the Loan or that part of the Loan, the most recent SOFR for a day which is no
more than five US Government Securities Business Days (and no less than two US
Government Securities Business Days) before the Quotation Day; and
(b)
the most recent applicable Term SOFR (as of a day which is not more than three US
Government Securities Business Days before the Quotation Day) for the shortest period
(for which Term SOFR is available) which exceeds the Interest Period of the Loan or that
part of the Loan.
"
Interpolated Term SOFR
" means, in relation to the Loan or any part of the Loan, the rate
(rounded to the same number of decimal places as Term SOFR) which results from interpolating
on a linear basis between:
(a)
either:
(i)
the applicable Term SOFR (at or after 5 am Chicago Time on the Quotation Day)
for the longest period (for which Term SOFR is available) which is less than the
Interest Period of the Loan or that part of the Loan; or
(ii)
if no such Term SOFR is available for a period which is less than the Interest Period
of the Loan or that part of the Loan, the SOFR for the day which is two US
Government Securities Business Days before the Quotation Day; and
(b)
the applicable Term SOFR (at or after 5 am Chicago Time on the Quotation Day) for the
shortest period (for which Term SOFR is available) which exceeds the Interest Period of
the Loan or that part of the Loan.
"
Inventory of Hazardous Materials
" means, in relation to a Ship, an inventory certificate or
statement of compliance (as applicable) supplemented by a list of any and all materials known to
be potentially hazardous utilised in the construction of, or otherwise installed on, that Ship, which
is certified in accordance with the EU Ship Recycling Regulation, 2013 (EU SRR) and/or the Hong
Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009
(HKC) as further described by the International Maritime Organisation and/or the Approved
Classification Society.
"
ISM Code
" means the International Safety Management Code for the Safe Operation of Ships and
for Pollution Prevention (including the guidelines on its implementation), adopted by the
International Maritime Organisation, as the same may be amended or supplemented from time
to time.
"
ISPS Code
" means the International Ship and Port Facility Security (ISPS) Code as adopted by the
International Maritime Organization's (IMO) Diplomatic Conference of December 2002, as the
same may be amended or supplemented from time to time.
"
ISSC
" means an International Ship Security Certificate issued under the ISPS Code.
"
Lender
" means:
(a)
the Original Lender; and
(b)
any bank, financial institution, trust, fund or other entity which has become the Lender in
accordance with Clause 28 (
Changes to the Lender
),
which in each case has not ceased to be a Party in accordance with this Agreement.
"
Limitation
Acts
" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"
LMA
" means the Loan Market Association or any successor organisation from time to time.
"
Loan
" means the loan to be made available under the Facility or the aggregate principal amount
outstanding for the time being of the borrowings under the Facility and a "
part of the Loan
" means
an Advance, a Tranche, a part of a Tranche or any other part of the Loan as the context may
require.
"
Loan Agreement C
" means the loan agreement dated 5 March 2019 (as from time to time
amended and/or supplemented) and entered into between (i) Borrower H and Borrower I as joint
and several borrowers and (ii) the banks and financial institutions listed in schedule 1 therein as
lenders and (iii) DNB Bank ASA as arranger, agent, swap provider and security agent secured on
Ship H and Ship I.
"
Major
Casualty
" means, in relation to a Ship, any casualty to that Ship in relation to which the
claim or the aggregate of the claims against all insurers, before adjustment for any relevant
franchise or deductible, exceeds $1,000,000 or the equivalent in any other currency.
"
Management Agreement
" means a Technical Management Agreement or a Commercial
Management Agreement.
"
Manager's
Undertaking
" means, in relation to a Ship, the letter of undertaking from its Approved
Technical Manager and the letter of undertaking from its Approved Commercial Manager
subordinating the rights of such Approved Technical Manager and such Approved Commercial
Manager respectively against that Ship and the relevant Borrower to the rights of the Lender and
assigning the rights and interests of such Approved Technical Manager and such Approved
Commercial Manager respectively in the Insurances to the Lender in agreed form.
"
Margin
" means 2.20 per cent. per annum.
"
Market Disruption Rate
" means the percentage rate per annum which is the aggregate of the
Reference Rate and 1.366 per cent.
"
Market
Value
" means, in relation to a Ship or any other vessel (including any Fleet Vessel), at any
date, an amount determined in dollars by the Lender as being an amount equal to the market
value of that Ship or vessel shown by the arithmetic mean of two valuations (subject to paragraph
(b)(ii) of Clause 25.7 (
Provision of valuations
)), each addressed to the Lender and prepared:
(a)
as at a date not more than 30 days previously;
(b)
by an Approved Valuer selected by the Borrowers and appointed by the Lender;
(c)
with or without physical inspection of that Ship or vessel (as the Lender may require); and
(d)
on the basis of a sale for prompt delivery for cash on normal arm's length commercial
terms as between a willing seller and a willing buyer, and on an "as is where is" basis
without taking into account the benefit or detriment of any charter commitment/free of
any existing charter or other contract of employment,
Provided that
valuation shall be carried out on the same basis by an Approved Valuer appointed by the Lender
at the cost of the Borrowers and the Market Value shall be the arithmetic mean of the three
valuations. For the avoidance of doubt, if a valuation is provided as a range between two figures,
the figure to be used shall be the arithmetic mean of those two figures.
"
Material
Adverse
Effect
" means a material adverse effect on:
(a)
the business, operations, property, condition (financial or otherwise) or prospects of any
member of the Group or the Group as a whole; or
(b)
the ability of any Transaction Obligor to perform its obligations under any Finance
Document; or
(c)
the validity or enforceability of, or the effectiveness or ranking of any Security granted or
intended to be granted pursuant to any of, the Finance Documents or the rights or
remedies of the Lender under any of the Finance Documents.
"
Month
" means a period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
(a)
(subject to sub-paragraph (c) below) if the numerically corresponding day is not a Business
Day, that period shall end on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the immediately preceding Business
Day;
(b)
if there is no numerically corresponding day in the calendar month in which that period is
to end, that period shall end on the last Business Day in that calendar month; and
(c)
if an Interest Period begins on the last Business Day of a calendar month, that Interest
Period shall end on the last Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"
Mortgage
" means, in relation to a Ship, a first priority or, as the case may be, first preferred ship
mortgage on that Ship in agreed form or any replacement first preferred or first priority ship
mortgage on that Ship under the laws of an Approved Flag, and if required by the laws of the
relevant Approved Flag a deed of covenant collateral thereto, each in agreed form.
"
Obligor
" means a Borrower or the Parent Guarantor.
"
Operational Carbon Intensity Rating
" means, in respect of each Ship, the A to E rating
determined based on that Ship's carbon intensity indicator calculation as set out in Annex VI.
"
Original
Financial
Statements
" means, in relation to the Parent Guarantor the audited
consolidated financial statements of the Group for the Financial Year ending on 31 December
2022.
"
Original Jurisdiction
" means, in relation to an Obligor, the jurisdiction under whose laws that
Obligor is incorporated as at the date of this Agreement.
"
Overseas
Regulations
" means the Overseas Companies Regulations 2009 (SI 2009/1801).
"Palios Family
" means, together, each of the following:
(a)
Mr. Simeon Palios;
(a)
all the lineal descendants in direct line of Mr. Simeon Palios;
(b)
a husband or wife or widower or widow of any of the above persons;
(c)
the estates, trusts or legal representatives of which any of the above persons are the
beneficiaries; and
(d)
each company legally and beneficially owned or (as the case may be) controlled by one or
more of the persons or entities which would fall within paragraphs (a) to (d) of this
definition,
and each one of the above shall be referred to as "
a member of the Palios Family
".
"
Participating Member State
" means any member state of the European Union that has the euro
as its lawful currency in accordance with legislation of the European Union relating to Economic
and Monetary Union.
"
Party
" means a party to this Agreement.
"
Permitted
Charter
" means, in relation to a Ship, a Charter:
(a)
which is a time, voyage or consecutive voyage charter (i) the duration of which does not
exceed and is not capable of exceeding, by virtue of any optional extensions, 12 months
plus a redelivery allowance of not more than 30 days or (ii) which is an intra-Group
consecutive voyage Charter for any tenor provided that the relevant Borrower has
complied with Clause 24.22 (
Charterparty Assignment
);
(b)
which is entered into on
bona fide
fixed; and
(c)
in relation to which not more than two months' hire is payable in advance,
and any other Charter which is approved in writing by the Lender.
"
Permitted
Financial
Indebtedness
" means:
(a)
any Financial Indebtedness incurred under the Finance Documents;
(b)
in relation to each Borrower, until the Utilisation Date of the Advance under the relevant
Tranche, the relevant Existing Indebtedness;
(c)
any Financial Indebtedness that is subordinated to all Financial Indebtedness incurred
under the Finance Documents pursuant to a Subordination Agreement or otherwise and
which is, in the case of any such Financial Indebtedness of a Borrower, the subject of
Subordinated Debt Security; and
(d)
incurred or created in respect of the Parent Guarantor in the normal course of its business
of holding the shares of single purpose shipowning Subsidiaries and assisting its
Subsidiaries with acquiring and financing vessels and with their arrangements in respect
of the operation of such vessels or for working capital purposes.
"
Permitted
Security
" means:
(a)
Security created by the Finance Documents;
(b)
in relation to each Borrower, until the Utilisation Date of the Advance under the relevant
Tranche, the relevant Existing Security;
(c)
liens for unpaid master's and crew's wages in accordance with first class ship ownership
and management practice provided that it is outstanding for no more than 30 days;
(d)
liens for salvage;
(e)
liens for master's disbursements incurred in the ordinary course of trading provided the
underlying payment obligation has not yet fallen due for payment or has been contested
in good faith by the Borrowers; and
(f)
any other lien arising by operation of law or otherwise in the ordinary course of the
operation, repair or maintenance of any Ship:
(i)
which is not yet overdue for payment according to its payment terms; or
(ii)
which is being contested in good faith by the relevant Borrower by appropriate
proceedings and for which adequate reserves or security are maintained or
provided; or
(iii)
subject, in the case of liens for repair or maintenance, to Clause 24.17 (
Restrictions
on chartering, appointment of managers etc.
).
"
Poseidon Principles
" means the financial industry framework for assessing and disclosing the
climate alignment of ship finance portfolios published in June 2019 as the same may be amended
or replaced from time to time.
"
Potential
Event
of
Default
" means any event or circumstance specified in Clause 27 (
Events of
Default
) which would (with the expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of the foregoing) be an
Event of Default.
"
Prohibited Person
" means a person that is:
(a)
listed on, or directly or indirectly owned or otherwise controlled by a person listed on, or
acting on behalf of or for the benefit of any one or more persons listed on, any Sanctions
List;
(b)
resident, located or having a place of business in, incorporated or organised under the
laws of, or owned or (directly or indirectly) controlled by, or acting on behalf of, a person
resident, located or having a place of business in, incorporated or organised under the
laws of a country or territory that is, or whose government is, the target of country-wide,
region-wide or territory-wide Sanctions or comprehensive Sanctions (currently Crimea,
Donetsk oblast, Luhansk oblast, Zaporizjzja oblast and Kherson oblast, Cuba, Iran, North
Korea, Syria and Venezuela); or
(c)
otherwise a target of Sanctions (including a person with whom a US person or other
national under the jurisdiction of a Sanctions Authority would be prohibited or restricted
by law from engaging in trade, business or other activities).
"
Quotation Day
" means, in relation to any period for which an interest rate is to be determined,
two US Government Securities Business Days before the first day of that period unless market
practice differs in the relevant syndicated loan market in which case the Quotation Day will be
determined by the Lender in accordance with that market practice (and if quotations would
normally be given on more than one day, the Quotation Day will be the last of those days).
"
Receiver
" means a receiver or receiver and manager or administrative receiver of the whole or
any part of the Security Assets.
"
Reference Rate
" means, in relation to the Loan or any part of the Loan:
(a)
the applicable Term SOFR at or after 5 am Chicago Time on the Quotation Day and for a
period equal in length to the Interest Period of the Loan or that part of the Loan; or
(b)
as otherwise determined pursuant to Clause 10.1 (
Temporary unavailability of Term
SOFR
),
and if, in either case, that rate is less than zero, the Reference Rate shall be deemed to be zero.
"
Related
Fund
" in relation to a fund (the "first fund"), means a fund which is managed or advised
by the same investment manager or investment adviser as the first fund or, if it is managed by a
different investment manager or investment adviser, a fund whose investment manager or
investment adviser is an Affiliate of the investment manager or investment adviser of the first
fund.
"
Relevant
Jurisdiction
" means, in relation to a Transaction Obligor:
(a)
Its Original Jurisdiction;
(b)
any jurisdiction where any asset subject to, or intended to be subject to, any of the
Transaction Security created, or intended to be created, by it is situated;
(c)
any jurisdiction where it conducts its business; and
(d)
the jurisdiction whose laws govern the perfection of any of the Security Documents
entered into by it.
"
Relevant Market
" means the market for overnight cash borrowing collateralised by US
Government Securities.
"
Repayment
Date
" means each date on which a Repayment Instalment is required to be paid
under Clause 6.1 (
Repayment of Loan
).
"
Repayment
Instalment
" has the meaning given to it in Clause 6.1 (
Repayment of Loan
).
"
Repeating
Representation
" means each of the representations set out in Clause 19
(
Representations
) except Clause 19.10 (
Insolvency
), Clause 19.11 (
No filing or stamp taxes
) and
Clause 19.12 (
Deduction of Tax
) and any representation of any Transaction Obligor made in any
other Finance Document that is expressed to be a "Repeating Representation" or is otherwise
expressed to be repeated.
"
Representative
" means any delegate, agent, manager, administrator, nominee, attorney, trustee
or custodian.
"
Requisition
" means, in relation to a Ship:
(a)
any expropriation, confiscation, requisition (excluding a requisition for hire or use which
does not involve a requisition for title) or acquisition of that Ship, whether for full
consideration, a consideration less than its proper value, a nominal consideration or
without any consideration, which is effected (whether
de jure
de facto
) by any
government or official authority or by any person or persons claiming to be or to represent
a government or official authority; and
(b)
any capture or seizure of that Ship (including any hijacking or theft) by any person
whatsoever.
"
Requisition
Compensation
" includes all compensation or other moneys payable to a Borrower
by reason of any Requisition or any arrest or detention of a Ship in the exercise or purported
exercise of any lien or claim.
"
Resolution Authority
" means any body which has authority to exercise any Write-down and
Conversion Powers.
"
Safety
Management
Certificate
" has the meaning given to it in the ISM Code.
"
Safety
Management
System
" has the meaning given to it in the ISM Code.
"
Sanctioned Country
" means a country or territory that is, or whose government is, the target of
country-wide, region-wide or territory-wide Sanctions or comprehensive Sanctions (currently
Crimea, Donetsk oblast, Luhansk oblast, Zaporizjzja oblast and Kherson oblast, Cuba, Iran, North
Korea, Syria and Venezuela).
"
Sanctions
" means the economic or financial sanctions laws, orders and/or regulations, trade
embargoes prohibitions, decisive executive orders or other restrictive measures implemented,
adapted, improved, administered, enacted and/or enforced from time to time by any Sanctions
Authority (whether or not any Transaction Obligor, any Affiliate of any Transaction Obligor or the
Lender is legally bound to comply with such laws, regulations, embargoes or measures).
"
Sanctions Authority
" means any of:
(a)
the United States of America;
(b)
the United Nations;
(c)
the European Union;
(d)
any member state of the European Economic Area;
(e)
the United Kingdom; or
(f)
any country which any Transaction Obligor is registered or has material (financial or
otherwise) interests or operations,
and includes any government entity of any of the above, including, without limitation, the Office
of Foreign Assets Control of the US Department of Treasury (OFAC), the United States Department
of State, the United States Department of Commerce or any other agency of the United States
Government, the United Nations Security Council, the European Union or His Majesty's Treasury
of the United Kingdom and HM Treasury Office of Financial Sanctions Implementation of the
United Kingdom.
"
Sanctions List
" means any of the lists of designated sanctions targets maintained by a Sanctions
Authority from time to time, including (without limitation) as at the date of this Agreement:
(a)
the "Specially Designated Nationals and Blocked Persons" list and the Consolidated
Sanctions List maintained by OFAC;
(b)
the Consolidated List of persons, groups and entities subject to the European Union
financial sanctions; and
(c)
in the case of His Majesty's Treasury of the United Kingdom, the Consolidated List of
Financial Sanctions Targets and the List of Persons Subject to Restrictive Measures in View
of Russia's Actions Destabilising the Situation in Ukraine.
"
Secured
Liabilities
" means all present and future obligations and liabilities, (whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever) of each
Transaction Obligor to the Lender under or in connection with each Finance Document.
"
Security
" means a mortgage, pledge, lien, charge, assignment, hypothecation or security interest
or any other agreement or arrangement having the effect of conferring security.
"
Security Assets
" means all of the assets of the Transaction Obligors which from time to time are,
or are expressed to be, the subject of the Transaction Security.
"
Security Cover Ratio
" means:
(a)
the aggregate Market Value (or, if less in relation to an individual Ship, the maximum
amount capable of being secured by the Mortgage of such Ship) of all of the Ships which
are then subject to a Mortgage and have not then become a Total Loss; plus
(b)
the net realisable value of additional Security previously provided under Clause 25
(
Security Cover
),
expressed as a percentage of the Loan.
"
Security Document
" means:
(a)
any Shares Security;
(b)
any Mortgage;
(c)
any General Assignment;
(d)
any Charterparty Assignment;
(e)
any Account Security;
(f)
any Subordinated Debt Security;
(g)
any other document (whether or not it creates Security) which is executed as security for
the Secured Liabilities; or
(h)
any other document designated as such by the Lender and the Borrowers.
"
Security
Period
" means the period starting on the date of this Agreement and ending on the date
on which the Lender is satisfied that there is no outstanding Commitment in force and that the
Secured Liabilities have been irrevocably and unconditionally paid and discharged in full.
"
Security
Property
" means:
(a)
the Transaction Security expressed to be granted in favour of the Lender and all proceeds
of that Transaction Security;
(b)
all obligations expressed to be undertaken by a Transaction Obligor to pay amounts in
relation to the Secured Liabilities to the Lender and secured by the Transaction Security
together with all representations and warranties expressed to be given by a Transaction
Obligor or any other person in favour of the Lender; and
(c)
the Lender's interest in any turnover trust created under the Finance Documents.
"
Shares
Security
" means, in relation to a Borrower, a document creating Security over the share
capital in that Borrower in agreed form.
"
Ship
" means Ship A, Ship B, Ship C, Ship D, Ship E, Ship F, Ship G, Ship H or Ship I.
"
Ship
A
" means m.v. ALCMENE, details of which are set out opposite its name in Schedule 5
(
Details of the Ships
).
"
Ship
B
" means m.v. SEATTLE, details of which are set out opposite its name in Schedule 5 (
Details
of the Ships
).
"
Ship
C
" means m.v. PHAIDRA, details of which are set out opposite its name in Schedule 5 (
Details
of the Ships
).
"
Ship
D
" means m.v. ELECTRA, details of which are set out opposite its name in Schedule 5 (
Details
of the Ships
).
"
Ship
E
" means m.v. ASTARTE , details of which are set out opposite its name in Schedule 5 (
Details
of the Ships
).
"
Ship
F
" means m.v. P. S. PALIOS , details of which are set out opposite its name in Schedule 5
(
Details of the Ships
).
"
Ship
G
" means m.v. G. P. ZAFIRAKIS, details of which are set out opposite its name in Schedule 5
(
Details of the Ships
).
"
Ship
H
" means m.v. CRYSTALIA , details of which are set out opposite its name in Schedule 5
(
Details of the Ships
).
"
Ship
I
" means m.v. ATALANDI , details of which are set out opposite its name in Schedule 5 (
Details
of the Ships
).
"
SOFR
" means the secured overnight financing rate administered by the Federal Reserve Bank of
New York (or any other person which takes over the administration of that rate) published by the
Federal Reserve Bank of New York (or any other person which takes over the publication of that
rate).
"
Specified
Time
" means a day or time determined in accordance with Schedule 6 (
Timetables
).
"
Statement of Compliance
" means a Statement of Compliance related to fuel oil consumption
pursuant to regulations 6.6 and 6.7 of Annex VI.
"
Subordinated
Creditor
" means:
(a)
a member of the Group; or
(b)
any other person who becomes a Subordinated Creditor in accordance with this
Agreement.
"
Subordinated Debt Security
" means a Security over Subordinated Liabilities entered into or to
be entered into by a Subordinated Creditor in favour of the Lender in an agreed form.
"
Subordinated Finance Document
" means:
(a)
a Subordinated Loan Agreement; and
(b)
any other document relating to or evidencing Subordinated Liabilities.
"
Subordinated Liabilities
" means all indebtedness owed or expressed to be owed by the
Borrowers to a Subordinated Creditor whether under the Subordinated Finance Documents or
otherwise.
"
Subordinated Loan Agreement
" means a loan agreement made between (a) a Borrower and (b)
a Subordinated Creditor.
"
Subordination Agreement
" means a subordination agreement entered into or to be entered into
by each Subordinated Creditor and the Lender in agreed form.
"
Subsidiary
" means a subsidiary within the meaning of section 1159 of the Companies Act 2006.
"
Tax
" means any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to pay or any delay in
paying any of the same).
"
Tax
Credit
" has the meaning given to it in Clause 12.1 (
Definitions
).
"
Tax
Deduction
" has the meaning given to it in Clause 12.1 (
Definitions
).
"
Tax
Payment
" has the meaning given to it in Clause 12.1 (
Definitions
).
"
Technical Management Agreement
" means the agreement entered into between a Borrower
and the Approved Technical Manager regarding the technical management of a Ship.
"
Term SOFR
" means the term SOFR reference rate administered by CME Group Benchmark
Administration Limited (or any other person which takes over the administration of that rate) for
the relevant period published (before any correction, recalculation or republication by the
administrator) by CME Group Benchmark Administration Limited (or any other person which takes
over the publication of that rate).
"
Termination
Date
" means, in relation to each Tranche, the earlier of (i) the fifth anniversary of
the first Utilisation Date and (ii) 1 May 2028.
"
Third
Parties
Act
" has the meaning given to it in Clause 1.5 (
Third party rights
).
"
Total
Loss
" means, in relation to a Ship:
(a)
actual, constructive, compromised, agreed or arranged total loss of that Ship; or
(b)
any Requisition of that Ship unless that Ship is returned to the full control of the relevant
Borrower within 30 days of such Requisition.
"
Total Loss Date
" means, in relation to the Total Loss of a Ship:
(a)
in the case of an actual loss of that Ship, the date on which it occurred or, if that is
unknown, the date when that Ship was last heard of;
(b)
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the
earlier of:
(i)
the date on which a notice of abandonment is given (or deemed or agreed to be
given) to the insurers; and
(ii)
the date of any compromise, arrangement or agreement made by or on behalf of
the relevant Borrower with that Ship's insurers in which the insurers agree to treat
that Ship as a total loss; and
(c)
in the case of any other type of Total Loss, the date (or the most likely date) on which it
appears to the Lender that the event constituting the total loss occurred.
"
Tranche
" means Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F, Tranche G,
Tranche H or Tranche I.
"
Tranche
A
" means that part of the Loan made or to be made available to Borrower A to (inter
alia) refinance the Existing Indebtedness secured on Ship A in a principal amount not exceeding
$8,513,342 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
B
" means that part of the Loan made or to be made available to Borrower B to (inter
alia) refinance the Existing Indebtedness secured on Ship B in a principal amount not exceeding
$12,706,480 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
C
" means that part of the Loan made or to be made available to Borrower C to (inter
alia) refinance the Existing Indebtedness secured on Ship C in a principal amount not exceeding
$9,656,925 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
D
" means that part of the Loan made or to be made available to Borrower D to (inter
alia) refinance the Existing Indebtedness secured on Ship D in a principal amount not exceeding
$9,656,925 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
E
" means that part of the Loan made or to be made available to Borrower E to (inter alia)
refinance the Existing Indebtedness secured on Ship E in a principal amount not exceeding
$11,944,091 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
F
" means that part of the Loan made or to be made available to Borrower F to (inter alia)
refinance the Existing Indebtedness secured on Ship F in a principal amount not exceeding
$14,231,258 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
G
" means that part of the Loan made or to be made available to Borrower G to (inter
alia) refinance the Existing Indebtedness secured on Ship G in a principal amount not exceeding
$12,452,351 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
H
" means that part of the Loan made or to be made available to Borrower H to (inter
alia) refinance the Existing Indebtedness secured on Ship H in a principal amount not exceeding
$10,419,314 or as the context may require, the amount outstanding thereunder from time to time.
"
Tranche
I
" means that part of the Loan made or to be made available to Borrower I to (inter alia)
refinance the Existing Indebtedness secured on Ship I in a principal amount not exceeding
$10,419,314 or as the context may require, the amount outstanding thereunder from time to time.
"
Transaction Document
" means:
(a)
a Finance Document;
(b)
a Subordinated Finance Document;
(c)
any Charter; or
(d)
any other document designated as such by the Lender and a Borrower.
"
Transaction Obligor
" means an Obligor, any Approved Manager and any other person (other than
the Lender) who executes a Finance Document.
"
Transaction Security
" means the Security created or evidenced or expressed to be created or
evidenced under the Security Documents.
"
UK Bail-In Legislation
" means Part 1 of the United Kingdom Banking Act 2009 and any other law
or regulation applicable in the United Kingdom relating to the resolution of unsound or failing
banks, investment firms or other financial institutes or their affiliates (otherwise than through
liquidation, administration or other insolvency proceedings).
"
UK
Establishment
" means a UK establishment as defined in the Overseas Regulations.
"
Unpaid
Sum
" means any sum due and payable but unpaid by a Transaction Obligor under the
Finance Documents.
"
US
" means the United States of America.
"
US Government Securities Business Day
" means any day other than:
(a)
a Saturday or a Sunday; and
(b)
a day on which the Securities Industry and Financial Markets Association (or any successor
organisation) recommends that the fixed income departments of its members be closed
for the entire day for purposes of trading in US Government securities.
"
US Tax Obligor
" means:
(a)
a person which is resident for tax purposes in the US; or
(b)
a person some or all of whose payments under the Finance Documents are from sources
within the US for US federal income tax purposes.
"
Utilisation
" means a utilisation of the Facility.
"
Utilisation
Date
" means the date of a Utilisation, being the date on which the relevant Advance
is to be made.
"
Utilisation
Request
" means a notice substantially in the form set out in Schedule 3 (Utilisation
Request
).
"
VAT
" means:
(a)
any value added tax imposed by the Value Added Tax Act 1994;
(b)
any tax imposed in compliance with the Council Directive of 28 November 2006 on the
common system of value added tax (EC Directive 2006/112); and
(c)
any other tax of a similar nature, whether imposed in the United Kingdom or a member
state of the European Union in substitution for, or levied in addition to, such tax referred
to in paragraph (a) or (b) above, or imposed elsewhere.
"
Write-down and Conversion Powers
" means:
(a)
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from
time to time, the powers described as such in relation to that Bail-In Legislation in the EU
Bail-In Legislation Schedule;
(b)
in relation to any other applicable Bail-In Legislation other than the UK Bail-In Legislation:
(i)
any powers under that Bail-In Legislation to cancel, transfer or dilute shares issued
by a person that is a bank or investment firm or other financial institution or
affiliate of a bank, investment firm or other financial institution, to cancel, reduce,
modify or change the form of a liability of such a person or any contract or
instrument under which that liability arises, to convert all or part of that liability
into shares, securities or obligations of that person or any other person, to provide
that any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend any obligation in respect of that liability or any of
the powers under that Bail-In Legislation that are related to or ancillary to any of
those powers; and
(ii)
any similar or analogous powers under that Bail-In Legislation; and
(c)
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to
cancel, transfer or dilute shares issued by a person that is a bank or investment firm or
other financial institution or affiliate of a bank, investment firm or other financial
institution, to cancel, reduce, modify or change the form of a liability of such a person or
any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide
that any such contract or instrument is to have effect as if a right had been exercised under
it or to suspend any obligation in respect of that liability or any of the powers under that
UK Bail-In Legislation that are related to or ancillary to any of those powers.
1.2
Construction
(a)
Unless a contrary indication appears, a reference in this Agreement to:
(i)
the "
Account
Bank
", the "
Lender
", any "
Obligor
", any "
Party
", any "
Transaction
Obligor
"
or any other person shall be construed so as to include its successors in title and permitted
assigns;
(ii)
"
applicable Sanctions
" includes (but is not limited to):
(A)
any Sanctions applicable to any of the Transaction Obligors or any other member
of the Group or any of their Affiliates, directors, officers or employees; and
(B)
any Sanctions which would otherwise apply either directly or indirectly to the
performance of any of the Parties ' (including the Lender's) rights and obligations
under this Agreement;
(iii)
"
assets
" includes present and future properties, revenues and rights of every description;
(iv)
a liability which is "
contingent
" means a liability which is not certain to arise and/or the
amount of which remains unascertained;
(v)
"
document
" includes a deed and also a letter, fax, email or telex;
(vi)
"
expense
" means any kind of cost, charge or expense (including all legal costs, charges and
expenses) and any applicable Tax including VAT;
(vii)
the Lender's "
cost of funds
" in relation to the Loan or any part of the Loan is a reference
to the average cost (determined either on an actual or a notional basis) which the Lender
would incur if it were to fund, from whatever source(s) it may reasonably select, an
amount equal to the amount of the Loan or that part of the Loan for a period equal in
length to the Interest Period of the Loan or that part of the Loan;
(viii)
a "
Finance Document
", a "
Security Document
" or "
Transaction Document
" or any other
agreement or instrument is a reference to that Finance Document, Security Document or
Transaction Document or other agreement or instrument as amended, replaced, novated,
supplemented, extended or restated;
(ix)
"
indebtedness
" includes any obligation (whether incurred as principal or as surety) for the
payment or repayment of money, whether present or future, actual or contingent;
(x)
"
law
" includes any order or decree, any form of delegated legislation, any treaty or
international convention and any regulation or resolution of the Council of the European
Union, the European Commission, the United Nations or its Security Council;
(xi)
"
proceedings
" means, in relation to any enforcement provision of a Finance Document,
proceedings of any kind, including an application for a provisional or protective measure;
(xii)
a "
person
" includes any individual, firm, company, corporation, government, state or
agency of a state or any association, trust, joint venture, consortium, partnership or other
entity (whether or not having separate legal personality);
(xiii)
a "
regulation
" includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-regulatory or other authority
or organisation;
(xiv)
a reference to a "
Ship
", its name, its flag and, if applicable, its port of registry shall include
any replacement name, flag and, if applicable, replacement port of registry, in each case,
as may be approved in writing from time to time by the Lender;
(xv)
a provision of law is a reference to that provision as amended or re-enacted from time to
time;
(xvi)
a time of day is a reference to Copenhagen time;
(xvii)
any English legal term for any action, remedy, method of judicial proceeding, legal
document, legal status, court, official or any legal concept or thing shall, in respect of a
jurisdiction other than England, be deemed to include that which most nearly
approximates in that jurisdiction to the English legal term;
(xviii)
words denoting the singular number shall include the plural and vice versa; and
(xix)
"
including
" and "
in
particular
" (and other similar expressions) shall be construed as not
limiting any general words or expressions in connection with which they are used.
(b)
The determination of the extent to which a rate is "
for a period equal in length
" to an Interest
Period shall disregard any inconsistency arising from the last day of that Interest Period being
determined pursuant to the terms of this Agreement.
(c)
Section, Clause and Schedule headings are for ease of reference only and are not to be used for
the purposes of construction or interpretation of the Finance Documents.
(d)
Unless a contrary indication appears, a term used in any other Finance Document or in any notice
given under, or in connection with, any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(e)
A reference in this Agreement to a page or screen of an information service displaying a rate shall
include:
(i)
any replacement page of that information service which displays that rate; and
(ii)
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 Lender after consultation with the Borrowers.
(f)
A Potential Event of Default is "
continuing
" if it has not been remedied or waived and an Event of
Default is "
continuing
" if it has not been waived.
1.3
Construction of insurance terms
In this Agreement:
"
approved
" means, for the purposes of Clause 23 (
Insurance Undertakings
), approved in writing
by the Lender.
"
excess
risks
" means, in respect of a Ship, the proportion of claims for general average, salvage
and salvage charges not recoverable under the hull and machinery policies in respect of that Ship
in consequence of its insured value being less than the value at which that Ship is assessed for the
purpose of such claims.
"
obligatory
insurances
" means all insurances effected, or which any Borrower is obliged to effect,
under Clause 22.23 (
Insurance Undertakings
) or any other provision of this Agreement or of
another Finance Document.
"
policy
" includes a slip, cover note, certificate of entry or other document evidencing the contract
of insurance or its terms.
"
protection
and
indemnity
risks
" means the usual risks covered by a protection and indemnity
association which is a member of the International Group of Protection and Indemnity
Associations, including pollution risks and the proportion (if any) of any sums payable to any other
person or persons in case of collision which are not recoverable under the hull and machinery
policies by reason of the incorporation in them of clause 6 of the International Hull Clauses
(1/11/02) (1/11/03), clause 8 of the Institute Time Clauses (Hulls) (1/10/83) (1/11/95) or the
Institute Amended Running Down Clause (1/10/71) or any equivalent provision.
"
war
risks
" includes the risk of mines and all risks excluded by clauses 29, 30 or 31 of the
International Hull Clauses (1/11/02), clauses 29 or 30 of the International Hull Clauses (1/11/03),
clauses 24, 25 or 26 of the Institute Time Clauses (Hulls) (1/11/95) or clauses 23, 24 or 25 of the
Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.
1.4
Agreed forms of Finance Documents
References in Clause 1.1 (
Definitions
) to any Finance Document being in "
agreed form
" are to that
Finance Document:
(a)
in a form attached to a certificate dated the same date as this Agreement (and signed by each
Borrower and the Lender); or
(b)
in any other form agreed in writing between each Borrower and the Lender.
1.5
Third party rights
(a)
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has
no right under the Contracts (Rights of Third Parties) Act 1999 (the "
Third Parties Act
") to enforce
or to enjoy the benefit of any term of this Agreement.
(b)
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party
is not required to rescind or vary this Agreement at any time.
(c)
Any Affiliate, Receiver or Delegate or any other person described in paragraph (f) of Clause 14.2
(
Other indemnities
), may, subject to this Clause 1.5 (
Third party rights
) and the Third Parties Act,
rely on any Clause of this Agreement which expressly confers rights on it.
SECTION 2
THE FACILITY
2
THE FACILITY
2.1
The Facility
Subject to the terms of this Agreement, the Lender makes available to the Borrowers a dollar term
loan facility in nine Tranches in an aggregate amount not exceeding the Commitment.
2.2
Borrowers' Agent
(a)
Each Borrower by its execution of this Agreement irrevocably appoints the Parent Guarantor to
act on its behalf as its agent in relation to the Finance Documents and irrevocably authorises:
(i)
the Parent Guarantor on its behalf to supply all information concerning itself
contemplated by this Agreement to the Lender and to give all notices and instructions
(including the Utilisation Request), to make such agreements and to effect the relevant
amendments, supplements and variations capable of being given, made or effected by any
Borrower notwithstanding that they may affect the Borrower, without further reference
to or the consent of that Borrower; and
(ii)
the Lender to give any notice, demand or other communication to that Borrower pursuant
to the Finance Documents to the Parent Guarantor,
and in each case each Borrower shall be bound as though each Borrower itself had given the
notices and instructions (including, without limitation, the Utilisation Request) or executed or
made the agreements or effected the amendments, supplements or variations, or received the
relevant notice, demand or other communication.
(b)
Every act, omission, agreement, undertaking, settlement, waiver, amendment, supplement,
variation, notice or other communication given or made by the Parent Guarantor or given to the
Parent Guarantor under any Finance Document on behalf of a Borrower or in connection with any
Finance Document (whether or not known to any Borrower) shall be binding for all purposes on
that Borrower as if that Borrower had expressly made, given or concurred with it. In the event of
any conflict between any notices or other communications of the Parent Guarantor and any
Borrower, those of the Parent Guarantor shall prevail.
3
PURPOSE
3.1
Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility only for the purposes of:
(a)
refinancing the Existing Indebtedness secured on Ship A, Ship B, Ship C, Ship D and Ship E
respectively under Existing Loan Agreement A; or
(b)
refinancing the Existing Indebtedness secured on Ship F and Ship G respectively under Existing
Loan Agreement B; or
(c)
refinancing the Borrowers' equity which has been applied against prepayment of the indebtedness
under Loan Agreement C; or
(d)
providing the Borrowers with working capital for their general corporate purposes.
3.2
Monitoring
The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to
this Agreement.
4
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
The Borrowers may not deliver the Utilisation Request unless the Lender has received all of the
documents and other evidence listed in Part A of Schedule 2 (
Conditions Precedent
) in form and
substance satisfactory to the Lender.
4.2
Further conditions precedent
The Lender will only be obliged to comply with Clause 5.4 (
Advances
) if:
(a)
on the date of the Utilisation Request and on the proposed Utilisation Date and before the
Advance is made available:
(i)
no Default is continuing or would result from the proposed Advance;
(ii)
the Repeating Representations to be made by each Obligor are true;
(iii)
no Change of Control has occurred;
(iv)
in the case of an Advance under any Tranche, the Ship in respect of which such Advance is
to be made has neither been sold nor become a Total Loss;
(v)
nothing has occurred which the Lender shall determine has had or could reasonably be
expected to have a Material Adverse Effect;
(vi)
no other prepayment or cancellation event under Clause 7 (
Prepayment and Cancellation
)
has occurred; and
(vii)
if the minimum Security Cover Ratio required under Clause 25.1 (
Minimum required
security cover
) were applied immediately following the making of the Loan, the Borrowers
would not be obliged to provide additional security or prepay part of the Loan under that
Clause; and
(b)
in the case of the Advance under each Tranche, the Lender has received on or before the relevant
Utilisation Date, or is satisfied it will receive when the Advance is made available, all of the
documents and other evidence listed in
Part B of Schedule 2 (
Conditions Precedent
) in form and
substance satisfactory to the Lender.
4.3
Notification of satisfaction of conditions precedent
The Lender shall notify the Borrowers promptly upon being satisfied as to the satisfaction of the
conditions precedent referred to in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2 (
Further
conditions precedent
).
4.4
Waiver of conditions precedent
If the Lender, at its discretion, permits an Advance to be borrowed before any of the conditions
precedent referred to in Clause 4.1 (
Initial conditions precedent
) or Clause 4.2 (
Further conditions
precedent
) has been satisfied, the Borrowers shall ensure that that condition is satisfied within five
Business Days after the relevant Utilisation Date or such later date as the Lender may agree in
writing with the Borrowers.
4.5
Conditions subsequent
Each of Borrower D and Borrower G shall ensure that the Lender receives, no later than 1 October
2023, evidence that the Ship owned by it has changed China Classification Society to another
Approved Classification Society.
SECTION 3
UTILISATION
5
UTILISATION
5.1
Delivery of Utilisation Request
The Borrowers may utilise the Facility by delivery to the Lender of a duly completed Utilisation
Request not later than the Specified Time.
5.2
Completion of Utilisation Request
(a)
The Utilisation Request is irrevocable and will not be regarded as having been duly completed
unless:
(i)
the proposed Utilisation Date is a Business Day within the relevant Availability Period;
(ii)
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and amount
);
(iii)
all applicable deductible items have been completed; and
(iv)
the proposed Interest Period complies with Clause 9 (
Interest Periods
).
(b)
Only one Advance may be requested under each Tranche.
(c)
The Utilisation Date in respect of Tranche H and Tranche I shall coincide with the day that any
funds under Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F and Tranche G
which have been prepositioned pursuant to Clause 5.8 (
Prepositioning of funds
) are released.
5.3
Currency and amount
(a)
The currency specified in the Utilisation Request must be dollars.
(b)
The amount of each Tranche shall be not more than in respect of:
(i)
Tranche A, $8,513,342;
(ii)
Tranche B, $12,706,480;
(iii)
Tranche C, $9,656,925;
(iv)
Tranche D, $9,656,925;
(v)
Tranche E, $11,944,091;
(vi)
Tranche F, $14,231,258;
(vii)
Tranche G, $12,452,351;
(viii)
Tranche H, $10,419,314; and
(ix)
Tranche I, $10,419,314.
(c)
The aggregate amount of all Tranches shall not exceed 60 per cent. of the aggregate Initial Market
Values of the Ships.
5.4
Advances
If the conditions set out in this Agreement have been met, the Lender shall make each Advance
available by the relevant Utilisation Date through its Facility Office.
5.5
Cancellation of Commitment
The Commitment in respect of any Tranche which is unutilised at the end of the Availability Period
for such Tranche shall then be cancelled.
5.6
Retentions and payment to third parties
The Borrowers irrevocably authorise the Lender:
(a)
to deduct from the proceeds of any Advance any fees then payable to the Lender in accordance
with Clause 11 (
Fees
), any solicitors fees and disbursements together with any applicable VAT and
any other items listed as deductible items in the Utilisation Request and to apply them in payment
of the items to which they relate; and
(b)
on each Utilisation Date, to pay to, or for the account of, the relevant Borrower which is to utilise
the relevant Advance, the balance (after any deduction made in accordance with paragraph (a)
above) of the amount such Advance. That payment shall be made:
(i)
in the case of Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F and
Tranche G to the account of the Existing Agent under the Existing Loan Agreement A and
the Existing Loan Agreement B, which the Borrowers specify in the Utilisation Request;
and
(ii)
in the case of Tranche H and Tranche I, to the account which the Borrowers specify in the
Utilisation Request.
5.7
Disbursement of Advance to third party
Payment by the Lender under Clause 5.6 (
Retentions and payment to third parties
) to a person
other than a Borrower shall constitute the making of the relevant Advance and the Borrowers shall
at that time become indebted, as principal and direct obligor, to the Lender in an amount equal to
that Advance.
5.8
Prepositioning of funds
(a)
Notwithstanding the foregoing provisions of this Clause 5 (
Utilisation
), in the event that any
proposed Advance under Tranche A, Tranche B, Tranche C, Tranche D, Tranche E, Tranche F or
Tranche G, is required to be utilised prior to the satisfaction of the requirements of paragraphs 2,
3.1
Conditions precedent
) and remitted to the Existing Agent or
any other bank (the "
Relevant Bank
"), the Lender may in its absolute discretion agree to remit
such amount to the Relevant Bank prior to satisfaction of the requirements of paragraphs 2, 3.1
and 3.2(b) of Part B of Schedule 2 (
Conditions precedent
)
Provided that
:
(i)
the amount remitted shall be held in an account with the Relevant Bank in the name and
to the order of the Lender;
(ii)
such amount will only be released to the Existing Agent upon receipt by the Relevant Bank
of a release letter in such form as may be agreed between the Lender and the Existing
Agent, duly signed on behalf of the Lender by a person named in the Lender's remittance
instructions;
(iii)
such amount so released may be used only for payment in satisfaction of the Existing
Indebtedness (or any part thereof);
(iv)
in the event that the said amount so remitted (or any part thereof) is not released in
accordance with the Lender's instructions, the money held by the Relevant Bank shall be
returned to the account specified in the Lender's remittance instructions within 5 Business
Days after receipt by the Relevant Bank (or such other period as the Lender may specify in
its remittance instructions) and shall be applied towards prepayment of the Loan and
payment of any other amounts due under the Finance Documents; and
(v)
the requirements of paragraphs 2, 3.1 and 3.2(b) of Part B of Schedule 2 (
Conditions
precedent
) shall be satisfied simultaneously with any release to the Existing Agent
pursuant to paragraph (ii) above.
(b)
The prepositioning of an Advance pursuant to paragraph (a) above shall constitute the making of
that Advance and the Obligors shall at that time become indebted, as principal and direct obligors
on a joint and several basis, to the Lender in an amount equal to that Lender's participation in that
Advance.
(c)
The value date on which an Advance is remitted pursuant to paragraph (a) above shall constitute
the Utilisation Date in respect of that Advance.
(d)
The Obligors shall, without duplication, indemnify the Lender against any costs, loss or liability it
may incur in connection with the arrangements described in paragraph (a) above.
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6
REPAYMENT
6.1
Repayment of Loan
(a)
The Borrowers shall repay the Loan as follows:
(i)
Tranche A shall be repaid by 20 consecutive quarterly instalments, the first such instalment
in an amount of $425,669 followed by nineteen instalments each in an amount of
$425,667 (together, the "
Tranche A Repayment Instalments
" and each a "
Tranche A
Repayment Instalment
");
(ii)
Tranche B shall be repaid by 20 consecutive quarterly instalments, each in an amount of
$529,437 together, (the "
Tranche B Repayment Instalments
" and each a "
Tranche B
Repayment Instalment
") plus a balloon instalment in an amount of $2,117,740 (the
"
Tranche B Balloon Instalment
");
(iii)
Tranche C shall be repaid by 20 consecutive quarterly instalments each in an amount of
$301,779 (together, the "
Tranche C Repayment Instalments
" and each a "
Tranche C
Repayment Instalment
") plus a balloon instalment in an amount of $3,621,345 (the
"
Tranche C Balloon Instalment
");
(iv)
Tranche D shall be repaid by 20 consecutive quarterly instalments each in an amount of
$301,779 (together, the "
Tranche D Repayment Instalments
" and each a "
Tranche D
Repayment Instalment
") plus a balloon instalment in an amount of $3,621,345 (the
"
Tranche D Balloon Instalment
");
(v)
Tranche E shall be repaid by 20 consecutive quarterly instalments each in an amount of
$373,253 (together, the "
Tranche E Repayment Instalments
" and each a "
Tranche E
Repayment Instalment
") plus a balloon instalment in an amount of $4,479,031 (the
"
Tranche E Balloon Instalment
");
(vi)
Tranche F shall be repaid by 20 consecutive quarterly instalments each in an amount of
$444,727 (together, the "
Tranche F Repayment Instalments
" and each a "
Tranche F
Repayment Instalment
") plus a balloon instalment in an amount of $5,336,718 (the
"
Tranche F Balloon Instalment
");
(vii)
Tranche G shall be repaid by 20 consecutive quarterly instalments each in an amount of
$345,899 (together, the "
Tranche G Repayment Instalments
" and each a "
Tranche G
Repayment Instalment
") plus a balloon instalment in an amount of $5,534,371 (the
"
Tranche G Balloon Instalment
");
(viii)
Tranche H shall be repaid by 20 consecutive quarterly instalments each in an amount of
$289,425 (together, the "
Tranche H Repayment Instalments
" and each a "
Tranche H
Repayment Instalment
") plus a balloon instalment in an amount of $4,630,814 (the
"
Tranche H Balloon Instalment
"); and
(ix)
Tranche I shall be repaid by 20 consecutive quarterly instalments each in an amount of
$289,425 (together, the "
Tranche I Repayment Instalments
" and each a "
Tranche I
Repayment Instalment
" and together with the Tranche A Repayment Instalments, the
Tranche B Repayment Instalments, the Tranche C Repayment Instalments, the Tranche D
Repayment Instalments, the Tranche E Repayment Instalments, the Tranche F Repayment
Instalments, the Tranche G Repayment Instalments and the Tranche H Repayment
Instalments, the "
Repayment Instalments
" and each a "
Repayment Instalment
") plus a
balloon instalment in an amount of $4,630,814 (the "
Tranche I Balloon Instalment
" and
together with the Tranche B Balloon Instalment, the Tranche C Balloon Instalment, the
Tranche D Balloon Instalment, the Tranche E Balloon Instalment, the Tranche F Balloon
Instalment, the Tranche G Balloon Instalment and the Tranche H Balloon Instalment, the
"
Balloon Instalments
" and each a "
Balloon Instalment
").
(b)
The first Repayment Instalment under each Tranche shall be repaid on the date falling three
months after the first Utilisation Date, each subsequent Repayment Instalment under such
Tranche shall be repaid at three monthly intervals thereafter and the last Repayment Instalment
under such Tranche , together with the relevant Balloon Instalment (if applicable), shall be repaid
on the Termination Date.
6.2
Reduction of Repayment Instalments
If any part of a Tranche is cancelled, the Repayment Instalments in respect of that Tranche falling
after that cancellation shall be reduced
pro rata
6.3
Termination Date
On the Termination Date, the Borrowers shall additionally pay to the Lender all other sums then
accrued and owing under the Finance Documents.
6.4
Reborrowing
No Borrower may reborrow any part of the Facility which is repaid.
7
PREPAYMENT AND CANCELLATION
7.1
Illegality
If it becomes unlawful or contrary to Sanctions in any applicable jurisdiction for the Lender to
perform any of its obligations as contemplated by this Agreement or to fund or maintain all or any
part of the Loan or to determine or charge interest rates based upon Term SOFR or it becomes
unlawful for any Affiliate of the Lender for the Lender to do so:
(a)
the Lender shall promptly notify the Borrowers upon becoming aware of that event and the
Available Facility will be immediately cancelled; and
(b)
the Borrowers shall prepay the Loan on the last day of the Interest Period for the Loan occurring
after the Lender has notified the Borrowers or, if earlier, the date specified by the Lender in the
notice delivered to the Borrowers (being no earlier than the last day of any applicable grace period
permitted by law) and the Commitment shall be cancelled; and
(c)
accrued interest and all other amounts accrued for the Lender under the Finance Documents shall
be immediately due and payable.
7.2
Change of control
If a Change of Control occurs:
(a)
the Borrowers and/or the Parent Guarantor shall promptly notify the Lender upon becoming
aware of that event; and
(b)
the Lender may, by not less than 5 days' notice to the Borrowers, cancel the Facility and declare
the Loan, together with accrued interest, and all other amounts accrued under the Finance
Documents due and payable within 30 days of the occurrence of the Change of Control,
whereupon the Facility will be cancelled and Borrowers shall prepay to the Lender the Loan and
all outstanding interest and other amounts due and payable under the Finance Documents within
30 days of the occurrence of the Change of Control.
7.3
Voluntary and automatic cancellation
(a)
The Borrowers may, if they give the Lender not less than 10 Business Days' (or such shorter period
as the Lender may agree) prior notice, cancel the whole or any part (being a minimum amount of
$1,000,000) of the Available Facility. Any cancellation under this Clause 7.3 (
Voluntary and
automatic cancellation
) shall reduce the amount of each Tranche then unutilised rateably.
(b)
The unutilised Commitment (if any) shall be automatically cancelled at close of business on the
date on which the Facility is made available.
7.4
Voluntary prepayment of Loan
(a)
Subject to paragraph (b) and (d) below, the Borrowers may, if they give the Lender not less than
10 US Government Securities Business Days (or such shorter period as the Lender may agree) prior
notice, prepay the whole or any part of a Tranche (but, if in part, being an amount that reduces
the amount of that Tranche by a minimum amount equal to one Repayment Instalment in respect
of that Tranche (other than the first Repayment Instalment) or a multiple of that amount).
(b)
The Loan may only be prepaid after the last day of the Availability Period (or, if earlier, the day on
which the Available Facility is zero).
(c)
Any partial prepayment under this Clause 7.4 (
Voluntary prepayment of Loan
) shall reduce
pro rata
the amount of each Repayment Instalment under the relevant Tranche and, if applicable, the
Balloon Instalment under that Tranche falling after that prepayment by the amount prepaid.
(d)
Subject to the fee provided for in Clause 11.2 (
Prepayment fee)
, there may be no more than three
voluntary prepayments in part of a Tranche made in each 12-month period beginning on the first
Utilisation Date.
7.5
Mandatory prepayment on sale or Total Loss
(a)
If a Ship is sold (without prejudice to paragraph (a) of Clause 22.12 (
Disposals
)) or becomes a Total
Loss, the Borrowers shall on the Relevant Date prepay the Tranche applicable to that Ship.
(b)
On the Relevant Date, the Borrowers shall also prepay:
(i)
such part of the Loan as shall eliminate any shortfall arising if the ratio set out in Clause 25
(
Security Cover
) were applied immediately following the payment referred to in paragraph
(a) above; and
(ii)
if applicable, such amount as may be required to maintain the Security Cover Ratio which
applied immediately before the sale or Total Loss.
(c)
In this Clause 7.5 (
Mandatory prepayment on sale or Total Loss
):
"
Relevant Date
" means:
(i)
in the case of a sale of a Ship, on the date of transfer of title of such Ship; and
(ii)
in the case of a Total Loss of a Ship:
(A)
if and to the extent that such prepayment is not, in the reasonable opinion of the
Lender, covered by the proceeds of the relevant Insurances, within 30 days after
the Total Loss Date; and
(B)
if and to the extent that such prepayment is, in the reasonable opinion of the
Lender, covered by the proceeds of the Insurance relating to such Total Loss, on
the earlier of (1) the date falling 180 days after the Total Loss Date (or, if the Lender
has received the relevant insurers' written confirmation that the full insurance
claim relating to such Total Loss will be covered in such form as the Lender may
reasonably require, such period shall be extended to 360 days after the Total Loss
Date) and (2) the date of receipt by the Lender of the proceeds of insurance
relating to such Total Loss.
(d)
Any partial prepayment of the Loan under this Clause 7.5 (
Mandatory prepayment on sale or Total
Loss
) shall be applied towards full prepayment of the Tranche applicable to the Ship which is sold
or has become a Total Loss. Any excess amount prepaid pursuant to paragraph (b) of this Clause
7.5 (
Mandatory prepayment on sale or Total Loss
) shall be applied pro rata towards prepayment
of the other Tranches and shall reduce
pro rata
after that prepayment and, if applicable, the Balloon Instalment of each such Tranche.
7.6
Restrictions
(a)
Any notice of cancellation or prepayment given by any Party under this Clause 7 (
Prepayment and
Cancellation
) shall be irrevocable and, unless a contrary indication appears in this Agreement, shall
specify the date or dates upon which the relevant cancellation or prepayment is to be made and
the amount of that cancellation or prepayment.
(b)
Any prepayment under this Agreement shall be made together with accrued interest on the
amount prepaid and, subject to the fee provided for in Clause 11.2 (
Prepayment fee)
and any Break
Costs, without premium or penalty.
(c)
No Borrower may reborrow any part of the Facility which is prepaid.
(d)
No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the
Commitment except at the times and in the manner expressly provided for in this Agreement.
(e)
No amount of the Commitment cancelled under this Agreement may be subsequently reinstated.
SECTION 5
COSTS OF UTILISATION
8
INTEREST
8.1
Calculation of interest
The rate of interest on the Loan or any part of the Loan for each Interest Period is the percentage
rate per annum which is the aggregate of the applicable:
(a)
Margin; and
(b)
Reference Rate.
8.2
Payment of interest
(a)
The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of
each Interest Period (each an "
Interest
Payment
Date
").
(b)
If an Interest Period is longer than three Months, the Borrowers shall also pay interest then
accrued on the Loan or the relevant part of the Loan on the dates falling at three Monthly intervals
after the first day of the Interest Period.
8.3
Default interest
(a)
If a Transaction Obligor fails to pay any amount payable by it under a Finance Document on its due
date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment
(both before and after judgment) at a rate which, subject to paragraph (b) below, is two per cent.
per annum higher than the rate which would have been payable if the Unpaid Sum had, during the
period of non-payment, constituted part of the Loan in the currency of the Unpaid Sum for
successive Interest Periods, each of a duration selected by the Lender. Any interest accruing under
this Clause 8.3 (
Default interest
) shall be immediately payable by the Obligor on demand by the
Lender.
(b)
If an Unpaid Sum consists of all or part of the Loan which became due on a day which was not the
last day of an Interest Period relating to the Loan or that part of the Loan:
(i)
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired
portion of the current Interest Period relating to the Loan or that part of the Loan; and
(ii)
the rate of interest applying to that Unpaid Sum during that first Interest Period shall be
two per cent. per annum higher than the rate which would have applied if that Unpaid
Sum had not become due.
(c)
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at
the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due
and payable.
8.4
Notifications
The Lender shall promptly notify the Borrowers of the determination of a rate of interest under
this Agreement.
The Lender shall promptly notify the Borrowers of each Funding Rate relating to the Loan or any
part of the Loan.
9
INTEREST PERIODS
9.1
Length of Interest Periods
(a)
The Interest Period for each Tranche will, subject to Clause 9.2 (
Changes to Interest Periods
), be
three Months or any other period agreed between the Borrowers and the Lender.
(b)
An Interest Period in respect of a Tranche or any part of a Tranche shall not extend beyond the
Termination Date.
(c)
The first Interest Period for each Tranche shall start on the Utilisation Date relating to such Tranche
and end on the first Repayment Date upon which all Tranches shall be consolidated for the
purposes of interest and be treated as the Loan. Each subsequent Interest Period shall start on the
last day of its preceding Interest Period.
(d)
Except for the purposes of Clause 9.2 (
Changes to Interest Periods
), each Tranche shall have one
Interest Period only at any time.
9.2
Changes to Interest Periods
(a)
In respect of a Repayment Instalment, prior to determining the interest rate for the relevant
Tranche, the Lender may establish an Interest Period for a part of the relevant Tranche equal to
such Repayment Instalment to end on the Repayment Date relating to it and the remaining part
of that Tranche shall have an Interest Period of three Months.
(b)
If the Lender makes any change to an Interest Period referred to in this Clause 9.2 (
Changes to
Interest Periods
), it shall promptly notify the Borrowers.
9.3
Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period
will instead end on the next Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
10
CHANGES TO THE CALCULATION OF INTEREST
10.1
Temporary unavailability of Term SOFR
Subject to Clause 10.4 (
Permanent cessation of Published Rate
):
Interpolated Term SOFR
: If no Term SOFR is available for the Interest Period of the Loan or any
part of the Loan, the applicable Reference Rate shall be the Interpolated Term SOFR for a period
equal in length to the Interest Period of the Loan or that part of the Loan.
Historic Term SOFR
: If no Term SOFR is available for the Interest Period of the Loan or that part of
the Loan and it is not possible to calculate the Interpolated Term SOFR, the applicable Reference
Rate shall be the Historic Term SOFR for the Loan or that part of the Loan.
Interpolated Historic Term SOFR:
If paragraph (b) above applies but no Historic Term SOFR is
available for the Interest Period of the Loan or any part of the Loan, the applicable Reference Rate
shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of
the Loan or that part of the Loan.
Cost of funds
: If paragraph (c) above applies but it is not possible to calculate the Interpolated
Historic Term SOFR, there shall be no Reference Rate for the Loan or that part of the Loan (as
applicable) and Clause 10.3 (
Cost of funds
) shall apply to the Loan or that part of the Loan for that
Interest Period, unless otherwise determined pursuant to Clause 10.4 (
Permanent cessation of
Published Rate
).
10.2
Market disruption
If before close of business in Copenhagen on the Quotation Day for the relevant Interest Period
the Lender notifies the Borrowers that its cost of funds relating to the Loan or the relevant part of
the Loan would be in excess of the Market Disruption Rate then Clause 10.3 (
Cost of funds
) shall
apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
10.3
Cost of funds
(a)
If this Clause 10.3 (
Cost of funds
) applies to the Loan or part of the Loan for an Interest Period,
Clause 8.1 (
Calculation of interest
) shall not apply to the Loan or that part of the Loan for that
Interest Period and the rate of interest on the Loan or that part of the Loan for the relevant Interest
Period shall be the percentage rate per annum which is the sum of:
(i)
the Margin; and
(ii)
the rate notified by the Lender to the Borrowers as soon as practicable and in any event
no later than on the date falling 2 Business Days before the date on which interest is due
to be paid in respect of that Interest Period for that Loan, to be that which expresses as a
percentage rate per annum its cost of funds relating to the Loan or that part of the Loan.
(b)
If any rate notified by the Lender pursuant to paragraph (a) above is less than zero, the relevant
rate shall be deemed to be zero.
(c)
If this Clause 10.3 (
Cost of funds
) applies pursuant to Clause 10.2 (
Market disruption
) and the
Lender's Funding Rate is less than the Market Disruption Rate, the Lender's cost of funds in relation
to the Loan or any part of the Loan for that Interest Period shall be deemed to be the Market
Disruption Rate.
(d)
If this Clause 10.3 (
Cost of funds
) applies and the Lender or the Borrowers so requires, the Lender
and the Borrowers shall enter into negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of interest.
(e)
If this Clause 10.3 (
Cost of funds
) applies, the Lender shall, as soon as practicable, notify the Parent
Guarantor on behalf of the Borrowers.
10.4
Permanent cessation of Published Rate
If a Published Rate Replacement Event occurs, the Lender and the Borrowers shall enter into
negotiations (for a period of not more than 30 days (the "
Negotiation Period
")) with a view to
agreeing an appropriate Replacement Reference Rate.
After the occurrence of Published Rate Replacement Event and as long as the Parties have not
agreed on a Replacement Reference Rate (including during the Negotiation Period) or if an agreed
Replacement Reference Rate has not become effective, the interest under this Agreement shall
accrue and be calculated, at the Lender's option, on the basis of:
(i)
Clause 10.3 (
Cost of funds
); or
(ii)
A Compounded Reference Rate calculated in accordance with the methodology set out in
the LMA's template for Single Currency Term and Revolving Facilities Agreement
incorporating backward looking compounded rates (Lookback without Observation Shift)
(LMA. STR. Compounded Rate LB.02) of 28 May 2021 (the "
Template
") with the following
amendments and selections:
(A)
Cost of funds: to apply as fallback and to be determined in accordance with this
Agreement;
(B)
Central Bank Rate: to include the full wording of the Template;
(C)
Central Bank Rate Adjustment: to be defined as "In relation to the Central Bank
Rate prevailing at close of business on any US Government Securities Business Day,
the 20 per cent trimmed arithmetic mean (calculated by the Lender) of the Central
Bank Rate Spreads for the five most immediately preceding US Government
Securities Business Days for which the SOFR is available."
(D)
Central Bank Rate Spread: to be defined as "In relation to any US Government
Securities Business Day, the difference (expressed as a percentage rate per
annum) calculated by the Lender of (a) the SOFR for that US Government
Securities Business Day; and (b) the Central Bank Rate prevailing at close of
business on that US Government Securities Business Day."
(E)
Daily Rate: to include full wording from the Template and "5 US Government
Securities Business Days" to be inserted under item (c)(i);
(F)
Lookback Period: to be 5 US Government Securities Business Days;
(G)
Market Disruption Rate: to be defined as "the Cumulative Compounded RFR Rate
for the Interest Period of the Loan or the relevant part of the Loan.";
(H)
Margin: equivalent to "Margin" (as defined in this Agreement);
(I)
RFR Contingency Period: to be 15 days;
(J)
Interest Periods: to apply unchanged as set out in this Agreement;
(K)
Reporting Day: to be the Business Day which follows the day which is the Lookback
Period prior to the last day of the Interest Period;
Reporting Times: to be, in respect of (aa) the Market Disruption Rate, close of
business in Copenhagen on the Reporting Day for the Loan or the relevant part of
the Loan and (bb) the Lender's cost of funds, close of business on the date falling
three (3) Business Days after the Reporting Day for the Loan or the relevant part
of the Loan (or, if earlier, on the date falling two (2) Business Days before the date
on which interest is due to be paid in respect of the Interest Period for the Loan or
the relevant part of the Loan); or
(iii)
any other Replacement Reference Rate;
(in each case with the addition of the applicable Margin) and any such interest rate, interest
methodology and/or calculation shall apply forthwith at such time without the need for any
amendment to any Finance Documents other than any amendment required by the Lender in
accordance with paragraph (c) below.
If the Lender and the Borrowers agree on a Replacement Reference Rate pursuant to paragraph
(a) above or if an interest rate is determined pursuant to paragraph (b) above, the Obligors shall
and shall procure that each other Transaction Obligor shall as soon as possible following the
Lender's request:
(i)
execute such documents as the Lender may specify (including any agreement
supplemental to this Agreement and any new or amended Security Documents) to
document such new interest rate and to implement any Replacement Reference Rate
Conforming Changes; and
(ii)
deliver to the Lender such documents and evidence of the type referred to in Schedule 2
(
Conditions precedent
) in relation to the documents referred to in paragraph (i) above as
the Lender may deem necessary or desirable.
In this Clause 10.4 (
Permanent cessation of Published Rate
):
"
Published Rate
" means:
(a)
the SOFR;
(b)
Term SOFR for any Quoted Tenor; or
(c)
any Replacement Reference Rate to the extent it has replaced the SOFR or Term SOFR
pursuant to this Clause 10.4 (
Permanent cessation of Published Rate
).
"
Published Rate Replacement Event
" means, in relation to a Published Rate:
(a)
the methodology, formula or other means of determining that Published Rate has, in the
opinion of the Lender and the Borrowers materially changed;
(b)
(i)
(A)
the administrator of that Published Rate or its supervisor publicly
announces that such administrator is insolvent; or
(B)
information is published in any order, decree, notice, petition or filing,
however described, of or filed with a court, tribunal, exchange, regulatory
authority or similar administrative, regulatory or judicial body which
reasonably confirms that the administrator of that Published Rate is
insolvent,
provided that
, in each case, at that time, there is no successor administrator to
continue to provide that Published Rate;
(ii)
the administrator of that Published Rate publicly announces that it has ceased or
will cease, to provide that Published Rate permanently or indefinitely and, at that
time, there is no successor administrator to continue to provide that Published
Rate;
(iii)
the supervisor of the administrator of that Published Rate publicly announces that
such Published Rate has been or will be permanently or indefinitely discontinued;
or
(iv)
the administrator of that Published Rate or its supervisor announces that that
Published Rate may no longer be used; or
(c)
the administrator of that Published Rate (or the administrator of an interest rate which is
a constituent element of that Published Rate) determines that that Published Rate should
be calculated in accordance with its reduced submissions or other contingency or fallback
policies or arrangements and either:
(i)
the circumstance(s) or event(s) leading to such determination are not (in the
opinion of the Lender and the Borrowers) temporary; or
(ii)
that Published Rate is calculated in accordance with any such policy or
arrangement for a period which is no less than the period specified as the "RFR
Contingency Period" in the Reference Rate Terms ; or
(d)
in the opinion of the Lender and the Borrowers, that Published Rate is otherwise no longer
appropriate for the purposes of calculating interest under this Agreement.
"
Quoted Tenor"
"
Relevant Nominating Body
" means any applicable central bank, regulator or other supervisory
authority or a group of them, or any working group or committee sponsored or chaired by, or
constituted at the request of, any of them or the Financial Stability Board.
"
Replacement Reference Rate
" means a reference rate which is:
(a)
formally designated, nominated or recommended as the replacement for a Published Rate
by:
(i)
the administrator of that Published Rate (provided that the market or economic
reality that such reference rate measures is the same as that measured by that
Published Rate); or
(ii)
any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or
recommended under both paragraphs, the "Replacement Reference Rate" will be the
replacement under sub-paragraph (ii) above;
(b)
in the opinion of the Lender and the Borrowers, generally accepted in the international or
any relevant domestic syndicated loan markets as the appropriate successor to a
Published Rate; or
(c)
in the opinion of the Lender and the Borrowers, an appropriate successor to a Published
Rate.
"
Replacement Reference Rate Conforming Changes
" means, with respect to any Replacement
Reference Rate, any technical, administrative or operational changes (including changes to the
definition of "Term SOFR", "Reference Rate", "Interest Period" or "Business Day", timing and
frequency of determining rates and making payments of interest and other technical,
administrative or operational matters) that the Lender decides may be appropriate to reflect the
adoption and implementation of such Replacement Reference Rate or to permit the use and
administration thereof by the Lender in a manner substantially consistent with market practice
(or, if the Lender decides that adoption of any portion of such market practice is not
administratively feasible or if the Lender determines that no market practice for the
administration of the Replacement Reference Rate exists, in such other manner of administration
as the Lender decides is reasonably necessary in connection with the administration of this
Agreement and the other Finance Documents).
10.5
Break Costs
The Borrowers shall, within three Business Days of demand by the Lender, pay to the Lender its
Break Costs (if any) attributable to all or any part of the Loan or an Unpaid Sum being paid by a
Borrower on a day prior to the last day of an Interest Period for the Loan, the relevant part of the
Loan or that Unpaid Sum.
11
FEES
11.1
Upfront fee
The Borrowers shall pay (and in the case of paragraph (a) below have paid) to the Lender a non-
refundable upfront fee of $750,000 (representing 0.75 per cent. of the maximum amount of the
Commitment) payable in two instalments as follows:
(a)
the first instalment of $375,000 has been paid on 21 March 2023 (being the date the Borrowers
accepted the Lender's offer letter) and the Lender acknowledges receipt of such instalment; and
(b)
the second instalment in the amount of $375,000 shall be payable on the first Utilisation Date.
11.2
Prepayment fee
If more than three voluntary prepayments are made in accordance with Clause 7.4 (
Voluntary
prepayment of Loan
) in each 12-month period beginning on the first Utilisation Date, the
Borrowers shall, on demand, pay to the Lender, a prepayment fee of $5,000 for any additional
voluntary prepayment on the date of such prepayment of all or any part of a Tranche.
11.3
Reflagging fee
The Borrowers shall pay to the Lender a non-refundable reflagging fee of $2,500 for every change
of flag in respect of a Ship on or prior to the occurrence of such change.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12
TAX GROSS UP AND INDEMNITIES
12.1
Definitions
(a)
In this Agreement:
"
Tax Credit
" means a credit against, relief or remission for, or repayment of any Tax.
"
Tax Deduction
" means a deduction or withholding for or on account of Tax from a payment under
a Finance Document, other than a FATCA Deduction.
"
Tax Payment
" means either the increase in a payment made by an Obligor to the Lender under
Clause 12.2 (
Tax gross-up
) or a payment under Clause 12.3 (
Tax indemnity
).
(b)
Unless a contrary indication appears, in this Clause 12 (
Tax Gross Up and Indemnities
) reference
to "
determines
" or "
determined
" means a determination made in the absolute discretion of the
person making the determination.
12.2
Tax gross-up
(a)
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax
Deduction is required by law.
(b)
The Borrowers shall promptly upon becoming aware that an Obligor must make a Tax Deduction
(or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender
accordingly. Similarly, the Lender shall notify the Borrowers and that Obligor on becoming so
aware in respect of a payment payable to the Lender.
(c)
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due
from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves
an amount equal to the payment which would have been due if no Tax Deduction had been
required.
(d)
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and
any payment required in connection with that Tax Deduction within the time allowed and in the
minimum amount required by law.
(e)
Within 30 days of making either a Tax Deduction or any payment required in connection with that
Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Lender evidence
reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
12.3
Tax indemnity
(a)
The Obligors shall (within three Business Days of demand by the Lender) pay to the Lender an
amount equal to the loss, liability or cost which the Lender determines will be or has been (directly
or indirectly) suffered for or on account of Tax by the Lender in respect of a Finance Document.
(b)
Paragraph (a) above shall not apply:
(i)
with respect to any Tax assessed on the Lender:
(A)
under the law of the jurisdiction in which the Lender is incorporated or, if different,
the jurisdiction (or jurisdictions) in which the Lender is treated as resident for tax
purposes; or
(B)
under the law of the jurisdiction in which the Lender's Facility Office is located in
respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by the Lender; or
(ii)
to the extent a loss, liability or cost:
(A)
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
(B)
relates to a FATCA Deduction required to be made by a Party.
(c)
The Lender shall, if making, or intending to make, a claim under paragraph (a) above, promptly
notify the Obligors of the event which will give, or has given, rise to the claim.
12.4
Tax Credit
If an Obligor makes a Tax Payment and the Lender determines that:
(a)
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that
Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
(b)
the Lender has obtained and utilised that Tax Credit,
the Lender shall pay an amount to the Obligor which the Lender determines will leave it (after that
payment) in the same after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
12.5
Stamp taxes
The Obligors shall pay and, within three Business Days of demand, indemnify the Lender against
any cost, loss or liability which the Lender incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
12.6
VAT
(a)
All amounts expressed to be payable under a Finance Document by any Party to the Lender which
(in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to
be exclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is or becomes
chargeable on any supply made by the Lender to any Party under a Finance Document and the
Lender is required to account to the relevant tax authority for the VAT, that Party must pay to the
Lender (in addition to and at the same time as paying any other consideration for such supply) an
amount equal to the amount of the VAT (and the Lender must promptly provide an appropriate
VAT invoice to that Party).
(b)
Where a Finance Document requires any Party to reimburse or indemnify the Lender for any cost
or expense, that Party shall reimburse or indemnify (as the case may be) the Lender for the full
amount of such cost or expense, including such part of it as represents VAT, save to the extent
that the Lender reasonably determines that it is entitled to credit or repayment in respect of such
VAT from the relevant tax authority.
(c)
Any reference in this Clause 12.6 (
VAT
) to any Party shall, at any time when that Party is treated
as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and
unless the context otherwise requires) a reference to the person who is treated at that time as
making the supply, or (as appropriate) receiving the supply, under the grouping rules provided for
in Article 11 of Council Directive 2006/112/EC (or as implemented by the relevant member state
of the European Union or equivalent provisions imposed elsewhere) so that a reference to a Party
shall be construed as a reference to that Party or the relevant group or unity (or fiscal unity) of
which that Party is a member for VAT purposes at the relevant time or the relevant representative
member (or representative or head) of that group or unity at the relevant time (as the case may
be).
(d)
In relation to any supply made by the Lender to any Party under a Finance Document, if reasonably
requested by the Lender, that Party must promptly provide the Lender with details of that Party's
VAT registration and such other information as is reasonably requested in connection with the
Lender's VAT reporting requirements in relation to such supply.
12.7
FATCA Information
(a)
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request
by another Party:
(i)
confirm to that other Party whether it is:
(A)
a FATCA Exempt Party; or
(B)
not a FATCA Exempt Party; and
(ii)
supply to that other Party such forms, documentation and other information relating to
its status under FATCA as that other Party reasonably requests for the purposes of that
other Party's compliance with FATCA; and
(iii)
supply to that other Party such forms, documentation and other information relating to
its status as that other Party reasonably requests for the purposes of that other Party's
compliance with any other law, regulation or exchange of information regime.
(b)
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is
a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a
FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
(c)
Paragraph (a) above shall not oblige the Lender to do anything and sub-paragraph (iii) of paragraph
(a) above shall not oblige any other Party to do anything which would or might in its reasonable
opinion constitute a breach of:
(i)
any law or regulation;
(ii)
any fiduciary duty; or
(iii)
any duty of confidentiality.
(d)
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms,
documentation or other information requested in accordance with sub-paragraphs (i) or (ii) of
paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies),
then such Party shall be treated for the purposes of the Finance Documents (and payments under
them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the
requested confirmation, forms, documentation or other information.
12.8
FATCA Deduction
(a)
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment
required in connection with that FATCA Deduction, and no Party shall be required to increase any
payment in respect of which it makes such a FATCA Deduction or otherwise compensate the
recipient of the payment for that FATCA Deduction.
(b)
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that
there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it
is making the payment.
13
INCREASED COSTS
13.1
Increased costs
(a)
Subject to Clause 13.3 (
Exceptions
), the Borrowers shall, within three Business Days of a demand
by the Lender, pay for the account of the Lender the amount of any Increased Costs incurred by
the Lender or any of its Affiliates as a result of:
(i)
the introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation; or
(ii)
compliance with any law or regulation made,
in each case after the date of this Agreement; or
(iii)
the implementation, application of or compliance with Basel III or CRD IV or any law or
regulation that implements or applies Basel III or CRD IV.
(b)
In this Agreement:
(i)
"
Basel III
" means:
(A)
the agreements on capital requirements, a leverage ratio and liquidity standards
contained in "Basel III: A global regulatory framework for more resilient banks and
banking systems", "Basel III: International framework for liquidity risk
measurement, standards and monitoring" and "Guidance for national authorities
operating the countercyclical capital buffer" published by the Basel Committee on
Banking Supervision in December 2010, each as amended, supplemented or
restated;
(B)
the rules for global systemically important banks contained in "Global systemically
important banks: assessment methodology and the additional loss absorbency
requirement - Rules text" published by the Basel Committee on Banking
Supervision in November 2011, as amended, supplemented or restated; and
(C)
any further guidance or standards published by the Basel Committee on Banking
Supervision relating to "Basel III".
(ii)
"
CRD IV
" means:
(A)
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26
June 2013 on prudential requirements for credit institutions and investment firms
and amending regulation (EU) No. 648/2012, as amended by Regulation (EU)
2019/876;
(B)
Directive 2013/36/EU of the European Parliament and of the Council of 26 June
2013 on access to the activity of credit institutions and the prudential supervision
of credit institutions and investment firms, amending Directive 2002/87/EC and
repealing Dire ctives 2006/48/EC and 2006/49/EC, as amended by Directive (EU)
2019/878; and
(C)
any other law or regulation which implements Basel III.
(iii)
"
Increased Costs
" means:
(A)
a reduction in the rate of return from the Facility or on the Lender's (or its
Affiliate's) overall capital;
(B)
an additional or increased cost; or
(C)
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by the Lender or any of its Affiliates to the extent that it is
attributable to the Lender having entered into the Commitment or funding or performing
its obligations under any Finance Document.
13.2
Increased cost claims
If the Lender intends to make a claim pursuant to Clause 13.1 (
Increased costs
) it shall promptly
notify the Borrowers.
13.3
Exceptions
Clause 13.1 (
Increased costs
) does not apply to the extent any Increased Cost is:
(a)
attributable to a Tax Deduction required by law to be made by an Obligor;
(b)
attributable to a FATCA Deduction required to be made by a Party;
(c)
compensated for by Clause 12.3 (
Tax indemnity
) (or would have been compensated for under
Clause 12.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 12.3 (
Tax indemnity
) applied);
(d)
compensated for by any payment made pursuant to Clause 14.3 (
Mandatory Cost
); or
(e)
attributable to the wilful breach by the Lender or its Affiliates of any law or regulation.
14
OTHER INDEMNITIES
14.1
Currency indemnity
(a)
If any sum due from an Obligor under the Finance Documents (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:
(i)
making or filing a claim or proof against that Obligor; or
(ii)
obtaining or enforcing an order, judgment or award in relation to any litigation or
arbitration proceedings,
that Obligor shall, as an independent obligation, on demand, indemnify the Lender against any
cost, loss or liability arising out of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from the First Currency into the Second
Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of
that Sum.
(b)
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance
Documents in a currency or currency unit other than that in which it is expressed to be payable.
14.2
Other indemnities
(a)
Each Obligor shall, on demand, indemnify the Lender and any Receiver and Delegate against:
(i)
any cost, loss or liability incurred by it as a result of:
(A)
the occurrence of any Event of Default;
(B)
a failure by a Transaction Obligor to pay any amount due under a Finance
Document on its due date;
(C)
funding, or making arrangements to fund, an Advance requested by the Borrowers
in the Utilisation Request but not made by reason of the operation of any one or
more of the provisions of this Agreement (other than by reason of default or
negligence by the Lender alone); or
(D)
the Loan (or part of the Loan) not being prepaid in accordance with a notice of
prepayment given by the Borrowers; or
(E)
investigating any event which it reasonably believes is a Default; and
(ii)
any cost, loss or liability (including, without limitation, for negligence or any other category
of liability whatsoever) incurred by the Lender (otherwise than by reason of the Lender's
gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant
to Clause 30.8 (
Disruption to Payment Systems etc.
) notwithstanding the Lender's
negligence, gross negligence or any other category of liability whatsoever but not including
any claim based on the fraud of the Lender in acting as Lender under the Finance
Documents.
(b)
Each Obligor shall, on demand, indemnify the Lender, each Affiliate of the Lender and any Receiver
and Delegate and each officer or employee of the Lender or its Affiliate or any Receiver or Delegate
(as applicable) (each such person for the purposes of this Clause 14.2 (
Other indemnities
) an
"
Indemnified Person
"), against any cost, loss or liability (including, without limitation, for
negligence or any other category of liability whatsoever) incurred by that Indemnified Person
pursuant to or in connection with any litigation, arbitration or administrative proceedings or
regulatory enquiry, in connection with or arising out of the entry into and the transactions
contemplated by the Finance Documents, having the benefit of any Security constituted by the
Finance Documents or which relates to the condition or operation of, or any incident occurring in
relation to, any Ship unless such cost, loss or liability is caused by the gross negligence or wilful
misconduct of that Indemnified Person.
(c)
No Party other than the Lender or the Receiver or Delegate (as applicable) may take any
proceedings against any officer, employee or agent of the Lender or the Receiver or Delegate (as
applicable) in respect of any claim it might have against the Lender or the Receiver or Delegate or
in respect of any act or omission of any kind by that officer, employee or agent in relation to any
Transaction Document or any Security Property.
(d)
Without limiting, but subject to any limitations set out in paragraph (b) above, the indemnity in
paragraph (b) above shall cover any cost, loss or liability incurred by each Indemnified Person in
any jurisdiction:
(i)
arising or asserted under or in connection with any law relating to safety at sea, the ISM
Code, any Environmental Law or any Sanctions; or
(ii)
in connection with any Environmental Claim.
(e)
Each Obligor shall, on demand, indemnify the Lender and every Receiver and Delegate against any
cost, loss or liability (including, without limitation, for negligence or any other category of liability
whatsoever) incurred by any of them:
(i)
in relation to or as a result of:
(A)
any failure by any Borrower to comply with its obligations under Clause 16 (
Costs
and Expenses
);
(B)
acting or relying on any notice, request or instruction which it reasonably believes
to be genuine, correct and appropriately authorised;
(C)
the taking, holding, protection or enforcement of the Finance Documents and the
Transaction Security;
(D)
the exercise of any of the rights, powers, discretions, authorities and remedies
vested in the Lender and each Receiver and Delegate by the Finance Documents
or by law;
(E)
any default by any Transaction Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents;
(F)
any action by any Transaction Obligor which vitiates, reduces the value of, or is
otherwise prejudicial to, the Transaction Security; and
(G)
instructing lawyers, accountants, tax advisers, surveyors or other professional
advisers or experts as permitted under the Finance Documents;
(ii)
which otherwise relates to any of the Security Property or the performance of the terms
of this Agreement or the other Finance Documents (otherwise, in each case, than by
reason of the Lender's or Receiver's or Delegate's gross negligence or wilful misconduct).
(f)
Any Affiliate or Receiver or Delegate or any officer or employee of the Lender, or of any of its
Affiliates or any Receiver or Delegate (as applicable) may rely on this Clause 14.2 (
Other
indemnities
) and the provisions of the Third Parties Act, subject to Clause 1.5 (
Third party rights
)
and the provisions of the Third Parties Act.
14.3
Mandatory Cost
Each Borrower shall, on demand by the Lender, pay to the Lender, such amount which the Lender
certifies in a notice to the Borrowers to be its good faith determination of the amount necessary
to compensate it for complying with:
(a)
if the Lender is lending from a Facility Office in a Participating Member State, the minimum reserve
requirements (or other requirements having the same or similar purpose) of the European Central
Bank (or any other authority or agency which replaces all or any of its functions) in respect of loans
made from that Facility Office; and
(b)
if the Lender is lending from a Facility Office in the United Kingdom, any reserve asset, special
deposit or liquidity requirements (or other requirements having the same or similar purpose) of
the Bank of England (or any other governmental authority or agency) and/or paying any fees to
the Financial Conduct Authority and/or the Prudential Regulation Authority (or any other
governmental authority or agency which replaces all or any of their functions),
which, in each case, is referable to the Loan.
14.4
Lender's management time
Any amount payable to the Lender under Clause 14.2 (
Other indemnities
) and Clause 16 (
Costs and
Expenses
) shall include the cost of utilising the Lender's management time or other resources and
will be calculated on the basis of such reasonable daily or hourly rates as the Lender may notify to
the Borrowers, and is in addition to any fee paid or payable to the Lender under Clause 11 (
Fees
).
15
MITIGATION BY THE LENDER AND FORCE MAJEURE
15.1
Mitigation
(a)
The Lender shall, in consultation with the Borrowers, take all reasonable steps to mitigate any
circumstances which arise and which would result in any amount becoming payable under or
pursuant to, or cancelled pursuant to, any of Clause 7.1 (
Illegality
), Clause 12 (
Tax Gross Up and
Indemnities
), Clause 13 (
Increased Costs
) or paragraph (a) of Clause 14.3 (
Mandatory Cost
)
including (but not limited to) assigning its rights under the Finance Documents to another Affiliate
or Facility Office.
(b)
Paragraph (a) above does not in any way limit the obligations of any Transaction Obligor under the
Finance Documents.
15.2
Limitation of liability
(a)
Each Obligor shall, on demand, indemnify the Lender for all costs and expenses reasonably
incurred by the Lender as a result of steps taken by it under Clause 15.1 (
Mitigation
).
(b)
The Lender is not obliged to take any steps under Clause 15.1 (
Mitigation
) if either:
(i)
a Default has occurred and is continuing;
or
(ii)
in the opinion of the Lender (acting reasonably), to do so might be prejudicial to it.
15.3
Force Majeure and limitation of liability
(a)
The Lender shall not be held responsible for any damage arising out of any legal enactment, or any
measure undertaken by a public authority, or war, strike, lockout, boycott, blockade or any other
similar circumstance. The reservation in respect of strikes, lockouts, boycotts and blockades
applies even if the Lender takes such measures, or is subject to such measures.
(b)
Unless the Lender's liabilities have been limited otherwise in the Finance Documents, any damage
that may arise in other cases shall not be indemnified by the Lender if the Lender has observed
normal care. The Lender shall not in any case be held responsible for any indirect damage,
consequential damage and/or loss of profit. Should there be an obstacle as described above for
the Lender to take any action in compliance with this Agreement, such action may be postponed
until the obstacle has been removed.
16
COSTS AND EXPENSES
16.1
Transaction expenses
The Obligors shall, promptly on demand, pay the Lender the amount of all costs and expenses
(including legal fees) reasonably incurred by it in connection with the negotiation, preparation,
printing, execution and perfection of:
(a)
this Agreement and any other documents referred to in this Agreement or in a Security Document;
and
(b)
any other Finance Documents executed after the date of this Agreement.
16.2
Amendment costs
Subject to Clause 16.4 (
Reference rate transition costs
) if:
(a)
a Transaction Obligor requests an amendment, waiver or consent;
(b)
an amendment is required either pursuant to Clause 30.6 (
Change of currency
) or as contemplated
in Clause 10.4 (
Permanent cessation of Published Rate
); or
(c)
a Transaction Obligor requests, and the Lender agrees to, the release of all or any part of the
Security Assets from the Transaction Security,
the Obligors shall, on demand, reimburse the Lender for the amount of all costs and expenses
(including legal fees) reasonably incurred by the Lender in responding to, evaluating, negotiating
or complying with that request or requirement.
16.3
Enforcement and preservation costs
The Obligors shall, on demand, pay to the Lender the amount of all costs and expenses (including
legal fees) incurred by the Lender in connection with the enforcement of, or the preservation of
any rights under, any Finance Document or the Transaction Security and with any proceedings
instituted by or against the Lender as a consequence of it entering into a Finance Document, taking
or holding the Transaction Security, or enforcing those rights.
16.4
Reference rate transition costs
The Borrowers shall on demand reimburse the Lender for the amount of all costs and expenses
(including legal fees) reasonably incurred by it in connection with any change arising as a result of
an amendment required under Clause 10.4 (
Permanent cessation of Published Rate
).
SECTION 7
GUARANTEES AND JOINT AND SEVERAL LIABILITY OF BORROWERS
17
GUARANTEE AND INDEMNITY – PARENT GUARANTOR
17.1
Guarantee and indemnity
The Parent Guarantor irrevocably and unconditionally:
(a)
guarantees to the Lender punctual performance by each Transaction Obligor other than the Parent
Guarantor of all such other Transaction Obligor's obligations under the Finance Documents;
(b)
undertakes with the Lender that whenever a Transaction Obligor other than the Parent Guarantor
does not pay any amount when due under or in connection with any Finance Document, the Parent
Guarantor shall immediately on demand pay that amount as if it were the principal obligor; and
(c)
agrees with the Lender that if any obligation guaranteed by it is or becomes unenforceable, invalid
or illegal, it will, as an independent and primary obligation, indemnify the Lender immediately on
demand against any cost, loss or liability it incurs as a result of a Transaction Obligor other than
the Parent Guarantor not paying any amount which would, but for such unenforceability, invalidity
or illegality, have been payable by it under any Finance Document on the date when it would have
been due. The amount payable by the Parent Guarantor under this indemnity will not exceed the
amount it would have had to pay under this Clause 17 (
Guarantee and Indemnity – Parent
Guarantor
) if the amount claimed had been recoverable on the basis of a guarantee.
17.2
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable
by any Transaction Obligor under the Finance Documents, regardless of any intermediate payment
or discharge in whole or in part.
17.3
Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any Transaction
Obligor or any security for those obligations or otherwise) is made by the Lender in whole or in
part on the basis of any payment, security or other disposition which is avoided or must be
restored in insolvency, liquidation, administration or otherwise, without limitation, then the
liability of the Parent Guarantor under this Clause 17 (
Guarantee and Indemnity – Parent
Guarantor
) will continue or be reinstated as if the discharge, release or arrangement had not
occurred.
17.4
Waiver of defences
The obligations of the Parent Guarantor under this Clause 17 (
Guarantee and Indemnity – Parent
Guarantor
) and in respect of any Transaction Security will not be affected or discharged by an act,
omission, matter or thing which, but for this Clause 17.4 (
Waiver of defences
), would reduce,
release or prejudice any of its obligations under this Clause 17 (
Guarantee and Indemnity – Parent
Guarantor
) or in respect of any Transaction Security (without limitation and whether or not known
to it or the Lender) including:
(a)
any time, waiver or consent granted to, or composition with, any Transaction Obligor or other
person;
(b)
the release of any other Transaction Obligor or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;
(c)
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect
or delay in perfecting, or refusal or neglect to take up or enforce, or delay in taking or enforcing
any rights against, or security over assets of, any Tr ansaction Obligor or other person or any non-
presentation or non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;
(d)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the
members or status of a Transaction Obligor or any other person;
(e)
any amendment, novation, supplement, extension, restatement (however fundamental and
whether or not more onerous) or replacement of any Finance Document or any other document
or security including, without limitation, any change in the purpose of, any extension of or any
increase in any facility or the addition of any new facility under any Finance Document or other
document or security;
(f)
any unenforceability, illegality or invalidity of any obligation of any person under any Finance
Document or any other document or security; or
(g)
any insolvency or similar proceedings.
17.5
Immediate recourse
The Parent Guarantor waives any right it may have of first requiring the Lender (or any trustee or
agent on its behalf) to proceed against or enforce any other rights or security or claim payment
from any person (including without limitation to commence any proceedings under any Finance
Document or to enforce any Transaction Security) before claiming or commencing proceedings
under this Clause 17 (
Guarantee and Indemnity – Parent Guarantor
). This waiver applies
irrespective of any law or any provision of a Finance Document to the contrary.
17.6
Appropriations
Until all amounts which may be or become payable by the Transaction Obligors under or in
connection with the Finance Documents have been irrevocably paid in full, the Lender (or any
trustee or agent on its behalf) may:
(a)
refrain from applying or enforcing any other moneys, security or rights held or received by the
Lender (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against those amounts or otherwise)
and the Parent Guarantor shall not be entitled to the benefit of the same; and
(b)
hold in an interest-bearing suspense account any moneys received from the Parent Guarantor or
on account of the Parent Guarantor's liability under this Clause 17 (
Guarantee and Indemnity –
Parent Guarantor
).
17.7
Deferral of Parent Guarantor's rights
All rights which the Parent Guarantor at any time has (whether in respect of this guarantee, a
mortgage or any other transaction) against any Borrower, any other Transaction Obligor or their
respective assets shall be fully subordinated to the rights of the Lender under the Finance
Documents and until the end of the Security Period and unless the Lender otherwise directs, the
Parent Guarantor will not exercise any rights which it may have (whether in respect of any Finance
Document to which it is a Party or any other transaction) by reason of performance by it of its
obligations under the Finance Documents or by reason of any amount being payable, or liability
arising, under this Clause 17 (
Guarantee and Indemnity – Parent Guarantor
):
(a)
to be indemnified by a Transaction Obligor;
(b)
to claim any contribution from any third party providing security for, or any other guarantor of,
any Transaction Obligor's obligations under the Finance Documents;
(c)
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any
rights of the Lender under the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by the Lender;
(d)
to bring legal or other proceedings for an order requiring any Transaction Obligor to make any
payment, or perform any obligation, in respect of which the Parent Guarantor has given a
guarantee, undertaking or indemnity under Clause 17.1 (
Guarantee and indemnity
);
(e)
to exercise any right of set-off against any Transaction Obligor; and/or
(f)
to claim or prove as a creditor of any Transaction Obligor in competition with the Lender.
If the Parent Guarantor receives any benefit, payment or distribution in relation to such rights it
shall hold that benefit, payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Lender by the Transaction Obligors under or in connection
with the Finance Documents to be repaid in full on trust for the Lender and shall promptly pay or
transfer the same to the Lender or as the Lender may direct for application in accordance with
Clause 30 (
Payment Mechanics
).
17.8
Additional security
This guarantee and any other Security given by the Parent Guarantor is in addition to and is not in
any way prejudiced by, and shall not prejudice, any other guarantee or Security or any other right
of recourse now or subsequently held by the Lender or any right of set-off or netting or right to
combine accounts in connection with the Finance Documents.
17.9
Applicability of provisions of Guarantee to other Security
Clauses 17.2 (
Continuing guarantee
), 17.3 (
Reinstatement
), 17.4 (
Waiver of defences
), 17.5
(
Immediate recourse
), 17.6 (
Appropriations
), 17.7 (
Deferral of Parent Guarantor's rights
) and 17.8
(
Additional security
) shall apply, with any necessary modifications, to any Security which the
Parent Guarantor creates (whether at the time at which it signs this Agreement or at any later
time) to secure the Secured Liabilities or any part of them.
18
JOINT AND SEVERAL LIABILITY OF THE BORROWERS
18.1
Joint and several liability
All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to
be so or not, be joint and several.
18.2
Waiver of defences
The liabilities and obligations of a Borrower shall not be impaired by:
(a)
this Agreement being or later becoming void, unenforceable or illegal as regards any other
Borrower;
(b)
the Lender entering into any rescheduling, refinancing or other arrangement of any kind with any
other Borrower;
(c)
the Lender releasing any other Borrower or any Security created by a Finance Document;
(d)
any time, waiver or consent granted to, or composition with any other Borrower or other person;
(e)
the release of any other Borrower or any other person under the terms of any composition or
arrangement with any creditor of any member of the Group;
(f)
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect,
take up or enforce, any rights against, or security over assets of, any other Borrower or other
person or any non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any security;
(g)
any incapacity or lack of power, authority or legal personality of or dissolution or change in the
members or status of any other Borrower or any other person;
(h)
any amendment, novation, supplement, extension, restatement (however fundamental, and
whether or not more onerous) or replacement of a Finance Document or any other document or
security including, without limitation, any change in the purpose of, any extension of or any
increase in any facility or the addition of any new facility under any Finance Document or other
document or security;
(i)
any unenforceability, illegality or invalidity of any obligation or any person under any Finance
Document or any other document or security; or
(j)
any insolvency or similar proceedings.
18.3
Principal Debtor
Each Borrower declares that it is and will, throughout the Security Period, remain a principal
debtor for all amounts owing under this Agreement and the Finance Documents and no Borrower
shall, in any circumstances, be construed to be a surety for the obligations of any other Borrower
under this Agreement.
18.4
Borrower restrictions
(a)
Subject to paragraph (b) below, during the Security Period no Borrower shall:
(i)
claim any amount which may be due to it from any other Borrower whether in respect of
a payment made under, or matter arising out of, this Agreement or any Finance Document,
or any matter unconnected with this Agreement or any Finance Document;
(ii)
take or enforce any form of security from any other Borrower for such an amount, or in
any way seek to have recourse in respect of such an amount against any asset of any other
Borrower;
(iii)
set off such an amount against any sum due from it to any other Borrower;
(iv)
prove or claim for such an amount in any liquidation, administration, arrangement or
similar procedure involving any other Borrower; or
(v)
exercise or assert any combination of the foregoing.
(b)
If during the Security Period, the Lender, by notice to a Borrower, requires it to take any action
referred to in paragraph (a) above in relation to any other Borrower, that Borrower shall take that
action as soon as practicable after receiving the Lender's notice.
18.5
Deferral of Borrowers' rights
Until all amounts which may be or become payable by the Borrowers under or in connection with
the Finance Documents have been irrevocably paid in full and unless the Lender otherwise directs,
no Borrower will exercise any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a)
to be indemnified by any other Borrower; or
(b)
to claim any contribution from any other Borrower in relation to any payment made by it under
the Finance Documents.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19
REPRESENTATIONS
19.1
General
Each Obligor makes the representations and warranties set out in this Clause 19 (
Representations
)
to the Lender on the date of this Agreement.
19.2
Status
(a)
It is a limited liability corporation, duly incorporated and validly existing and in good standing
under the law of its Original Jurisdiction.
(b)
It and each Transaction Obligor has the power to own its assets and carry on its business as it is
being conducted.
19.3
Share capital and ownership
(a)
Each Borrower is authorised to issue 500 registered shares of $0.01 each, all of which shares have
been issued fully paid.
(b)
The legal title to and beneficial interest in the shares in each Borrower is held by the Parent
Guarantor free of any Security (other than relevant Shares Security) or any other claim.
(c)
None of the shares in any Borrower is subject to any option to purchase, pre-emption rights or
similar rights.
19.4
Binding obligations
The obligations expressed to be assumed by it in each Transaction Document to which it is a party
are legal, valid, binding and enforceable obligations.
19.5
Validity, effectiveness and ranking of Security
(a)
Each Finance Document to which it is a party does now or, as the case may be, will upon execution
and delivery create the Security it purports to create over any assets to which such Security, by its
terms, relates, and such Security will, when created or intended to be created, be valid and
effective.
(b)
No third party has or will have any Security (except for Permitted Security) over any assets that
are the subject of any Transaction Security granted by it.
(c)
The Transaction Security granted by it to the Lender has or will when created or intended to be
created have first ranking priority or such other priority it is expressed to have in the Finance
Documents and is not subject to any prior ranking or
pari passu
(d)
No concurrence, consent or authorisation of any person is required for the creation of or otherwise
in connection with any Transaction Security.
19.6
Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated by, each Transaction
Document to which it is a party do not and will not conflict with:
(a)
any law or regulation applicable to it;
(b)
the constitutional documents of any member of the Group; or
(c)
any agreement or instrument binding upon it or any member of the Group or any of its assets or
any member of the Group's assets or constitute a default or termination event (however
described) under any such agreement or instrument.
19.7
Power and authority
(a)
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise
its entry into, performance and delivery of, each Transaction Document to which it is or will be a
party and the transactions contemplated by those Transaction Documents.
(b)
No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving
of guarantees or indemnities contemplated by the Transaction Documents to which it is a party.
19.8
Validity and admissibility in evidence
All Authorisations required or desirable:
(a)
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the
Transaction Documents to which it is a party; and
(b)
to make the Transaction Documents to which it is a party admissible in evidence in its Relevant
Jurisdictions,
have been obtained or effected and are in full force and effect.
19.9
Governing law and enforcement
(a)
The choice of governing law of each Transaction Document to which it is a party will be recognised
and enforced in its Relevant Jurisdictions.
(b)
Any judgment obtained in relation to a Transaction Document to which it is a party in the
jurisdiction of the governing law of that Transaction Document will be recognised and enforced in
its Relevant Jurisdictions.
19.10
Insolvency
No:
(a)
corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause
27.8 (
Insolvency proceedings
); or
(b)
creditors' process described in Clause 27.9 (
Creditors' process
),
has been taken or, to its knowledge, threatened in relation to a member of the Group; and none
of the circumstances described in Clause 27.7 (
Insolvency
) applies to a member of the Group.
19.11
No filing or stamp taxes
Under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which
it is a party be registered, filed, recorded, notarised or enrolled with any court or other authority
in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in
relation to the Finance Documents to which it is a party or the transactions contemplated by those
Finance Documents.
19.12
Deduction of Tax
It is not required to make any Tax Deduction from any payment it may make under any Finance
Document to which it is a party.
19.13
No default
(a)
No Event of Default and, on the date of this Agreement and on each Utilisation Date, no Default is
continuing or might reasonably be expected to result from the making of any Utilisation or the
entry into, the performance of, or any transaction contemplated by, any Transaction Document.
(b)
No other event or circumstance is outstanding which constitutes a default or a termination event
(however described) under any other agreement or instrument which is binding on it or any of its
Subsidiaries or to which its (or any of its Subsidiaries') assets are subject.
19.14
No misleading information
(a)
All factual information provided by any member of the Group for the purposes of this Agreement
was true 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.
(b)
The financial projections contained in any such information have been prepared on the basis of
recent historical information and on the basis of reasonable assumptions.
(c)
Nothing has occurred or been omitted from any such information and no information has been
given or withheld that results in any such information being untrue or misleading in any material
respect.
19.15
Financial Statements
(a)
The Original Financial Statements were prepared in accordance with GAAP consistently applied.
(b)
The Original Financial Statements give a true and fair view of (if audited) or fairly represent (if
unaudited) the Group's consolidated financial condition as at the end of the relevant Financial Year
and the Group's consolidated results of operations during the relevant Financial Year.
(c)
There has been no material adverse change in the assets, business or consolidated financial
condition of the Group since the date of the annual Original Financial Statements.
(d)
The Parent Guarantor's most recent financial statements delivered pursuant to Clause 20.2
(
Financial statements
):
(i)
have been prepared in accordance with Clause 20.4 (
Requirements as to financial
statements
); and
(ii)
give a true and fair view of (if audited) or fairly represent (if unaudited) its consolidated
financial condition as at the end of the relevant Financial Year and operations during the
relevant Financial Yea
r.
(e)
Since the date of the most recent financial statements delivered pursuant to Clause 20.2 (
Financial
statements
) there has been no material adverse change in the business or consolidated financial
condition of the Group.
19.16
Pari passu ranking
Its payment obligations under the Finance Documents 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.
19.17
No proceedings pending or threatened
(a)
No litigation, arbitration or administrative proceedings or investigations (including proceedings or
investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or
before any court, arbitral body or agency which, if adversely determined, might reasonably be
expected to have a Material Adverse Effect have (to the best of its knowledge and belief (having
made due and careful enquiry)) been started or threatened against it or any other Transaction
Obligor or any member of the Group.
(b)
No judgment or order of a court, arbitral tribunal or other tribunal or any order or sanction of any
governmental or other regulatory body which might reasonably be expected to have a Material
Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry))
been made against it or any other Transaction Obligor or any member of the Group.
19.18
Validity and completeness of Deed of Release
(a)
Each Deed of Release constitutes legal, valid, binding and enforceable obligations of the relevant
Existing Agent.
(b)
The copy of each Deed of Release delivered to the Lender is a true and complete copy.
(c)
No amendments or additions to any Deed of Release have been agreed nor have any rights under
any Deed of Release been waived.
19.19
Valuations
(a)
All information supplied by it or on its behalf to an Approved Valuer for the purposes of a valuation
delivered to the Lender in accordance with this Agreement was true and accurate as at the date it
was supplied or (if appropriate) as at the date (if any) at which it is stated to be given.
(b)
It has not omitted to supply any information to an Approved Valuer which, if disclosed, would
adversely affect any valuation prepared by such Approved Valuer.
(c)
There has been no change to the factual information provided pursuant to paragraph (a) above in
relation to any valuation between the date such information was provided and the date of that
valuation which, in either case, renders that information untrue or misleading in any material
respect.
19.20
No breach of laws
It has not (and no other member of the Group has) breached any law or regulation which breach
has or is reasonably likely to have a Material Adverse Effect.
19.21
No Charter
No Ship is subject to any Charter other than a Permitted Charter.
19.22
Compliance with Environmental Laws
All Environmental Laws relating to the ownership, operation and management of each Ship and
the business of each member of the Group (as now conducted and as reasonably anticipated to
be conducted in the future) and the terms of all Environmental Approvals have been complied
with.
19.23
No Environmental Claim
No Environmental Claim has been made or threatened against any member of the Group or any
Ship.
19.24
No Environmental Incident
No Environmental Incident has occurred and no person has claimed that an Environmental
Incident has occurred.
19.25
ISM and ISPS Code compliance
All requirements of the ISM Code and the ISPS Code as they relate to each Borrower, each
Approved Technical Manager and each Ship have been complied with.
19.26
Taxes paid
(a)
It is not and no other member of the Group is materially overdue in the filing of any Tax returns
and it is not (and no other member of the Group is) overdue in the payment of any amount in
respect of Tax.
(b)
No claims or investigations are being, or are reasonably likely to be, made or conducted against it
(or any other member of the Group) with respect to Taxes.
19.27
Financial Indebtedness
No Obligor has any Financial Indebtedness outstanding other than Permitted Financial
Indebtedness.
19.28
Overseas companies
No Transaction Obligor has delivered particulars, whether in its name stated in the Finance
Documents or any other name, of any UK Establishment to the Registrar of Companies as required
under the Overseas Regulations or, if it has so registered, it has provided to the Lender sufficient
details to enable an accurate search against it to be undertaken by the Lender at the Companies
Registry.
19.29
Good title to assets
It and each other member of the Group has good, valid and marketable title to, or valid leases or
licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business
as presently conducted.
19.30
Ownership
(a)
Each Borrower is the sole legal and beneficial owner of the Ship owned by it, its Earnings and its
Insurances.
(b)
With effect on and from the date of its creation or intended creation, each Transaction Obligor
will be the sole legal and beneficial owner of any asset that is the subject of any Transaction
Security created or intended to be created by such Transaction Obligor.
(c)
The constitutional documents of each Transaction Obligor do not and could not restrict or inhibit
any transfer of the shares of the Borrowers on creation or enforcement of the security conferred
by the Security Documents.
(d)
Diana Shipping is a wholly owned Subsidiary of the Parent Guarantor.
(e)
DWM is 50 per cent. owned by the Parent Guarantor.
19.31
Centre of main interests and establishments
For the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency
Proceedings (recast)(the "Regulation"), its centre of main interest (as that term is used in Article
3(1) of the Regulation) is situated at the address for notices specified in Schedule 1 (
The Parties
)
and it has no "establishment" (as that term is used in Article 2(10) of the Regulation) in any other
jurisdiction.
19.32
Place of business
No Transaction Obligor has a place of business in any country other than the Hellenic Republic and
its head office functions are carried out at the address for notices specified in Schedule 1 (
The
Parties
).
19.33
No employee or pension arrangements
No Transaction Obligor has any employees or any liabilities under any pension scheme.
19.34
Sanctions
(a)
No Transaction Obligor nor any other member of the Group nor any Affiliate of any member of the
Group, nor any of their respective directors, officers or employees nor, to the knowledge of any
Transaction Obligor, any persons acting on any of their behalf:
(i)
is a Prohibited Person or is involved in any transaction through which it is likely to become
a Prohibited Person;
(ii)
owns or controls a Prohibited Person;
(iii)
is in breach of applicable Sanctions; or
(iv)
is involved in or has received notice of or is aware of any claim, action, suit, proceeding or
investigation against it with respect to Sanctions by any Sanctions Authority.
(b)
None of the Ships is a vessel with which any person is prohibited or restricted from dealing with
under any Sanctions.
(c)
Each Transaction Obligor has instituted and maintains policies and procedures designed to
promote and achieve compliance by each member of the Group and each other Transaction
Obligor with applicable Sanctions.
(d)
No proceeds of any part of the Loan shall be made available directly or indirectly, to or for the
benefit of a Prohibited Person that could result in the Lender being in violation of Sanctions or in
a manner that would be contrary to Sanctions nor shall they be otherwise directly or indirectly
applied in a manner or for a purpose prohibited by applicable Sanctions.
(e)
No member of the Group, no Transaction Obligor and no Affiliate of any member of the Group or
Transaction Obligor is the subject of any Sanctions or is subject to any restrictive measures,
embargoes or prohibitions by a Sanctions Authority.
19.35
US Tax Obligor
No Transaction Obligor is a US Tax Obligor.
19.36
No immunity
No Borrower, nor any of its assets, is entitled to immunity on the grounds of sovereignty or
otherwise from any legal action or proceeding (which shall include, without limitation, suit
attachment prior to judgement, execution or other enforcement).
19.37
No other business
(a)
No Borrower is engaged in any business other than the ownership and operation of the relevant
Ship or other shipping activities in connection therewith.
(b)
The Parent Guarantor is not engaged in any business other than holding the shares of single
purpose shipowning Subsidiaries and assisting its Subsidiaries with acquiring and financing vessels
and with their arrangements in respect of the operation of such vessels.
19.38
Material adverse change
No event or circumstance has occurred which has or is reasonably likely to have a Material Adverse
Effect.
19.39
Anti-bribery, anti-corruption and anti-money laundering
No Transaction Obligor nor any of its Subsidiaries, directors or officers, beneficial owners or, to
the best knowledge of such Transaction Obligor, any affiliate, agent or employee of it, has engaged
in any activity or conduct which would violate any Anti-Money Laundering Laws and each
Transaction Obligor has instituted and maintains policies and procedures designed to prevent
violation of such Anti-Money Laundering Laws.
19.40
Repetition
The Repeating Representations are deemed to be made by each Obligor by reference to the facts
and circumstances then existing on the date of the Utilisation Request and the first day of each
Interest Period.
20
INFORMATION UNDERTAKINGS
20.1
General
The undertakings in this Clause 20 (
Information Undertakings
) remain in force throughout the
Security Period unless the Lender otherwise permits.
20.2
Financial statements
The Obligors shall supply to the Lender:
(a)
as soon as they become available, but in any event within 150 days after the end of each of its
Financial Years , the audited consolidated financial statements of the Parent Guarantor for that
Financial Year (including balance sheet and profit and loss statement); and
(b)
as soon as the same become available, but in any event within 90 days after the end of each
quarter of each of its Financial Years, the unaudited consolidated financial statements of the
Parent Guarantor for that financial quarter, in the form they were published in the relevant press
release.
20.3
Compliance Certificate
(a)
The Parent Guarantor shall supply to the Lender, no later than 150 days after 31 December and 90
days after 30 June of each year in each Financial Year, together with the relevant financial
statements delivered pursuant to paragraph (a) and paragraph (b) of Clause 20.2 (
Financial
statements
), a Compliance Certificate.
(b)
Each Compliance Certificate shall be signed by the chief financial officer of the Parent Guarantor.
(c)
For the avoidance of doubt, each Compliance Certificate shall not be accompanied by valuations
of the Fleet Vessels (other than the Ships) unless the Lender in its sole discretion doubts the
accuracy of the vessel values serving as basis for the calculation of the Market Value Adjusted Net
Worth (as defined in Clause 21 (
Financial covenants
)), in which case the Lender shall have the right
to request the Borrowers to obtain one valuation (at the Borrowers' cost) for each Fleet Vessel
from an Approved Valuer, appointed by the Lender, such valuations to be addressed to the Lender.
20.4
Requirements as to financial statements
(a)
Each set of financial statements delivered by the Parent Guarantor pursuant to Clause 20.2
(
Financial statements
) shall be certified by the chief financial officer of the Parent Guarantor.
(b)
The Obligors shall procure that each set of financial statements delivered pursuant to Clause 20.2
(
Financial statements
) is prepared using GAAP accounting practices and financial reference periods
consistent with those applied in the preparation of the Original Financial Statements.
20.5
DAC6
(a)
In this Clause 20.5 (
DAC6
), "
DAC6
" means the Council Directive of 25 May 2018 (2018/822/EU)
amending Directive 2011/16/EU or any replacement legislation applicable in the United Kingdom.
(b)
The Parent Guarantor shall supply to the Lender:
(i)
promptly upon the making of such analysis or the obtaining of such advice, any analysis
made or advice obtained on whether any transaction contemplated by the Transaction
Documents or any transaction carried out (or to be carried out) in connection with any
transaction contemplated by the Transaction Documents contains a hallmark as set out in
Annex IV of DAC6; and
(ii)
promptly upon the making of such reporting and to the extent permitted by applicable law
and regulation, any reporting made to any governmental or taxation authority by or on
behalf of any member of the Group or by any adviser to such member of the Group in
relation to DAC6 or any law or regulation which implements DAC6 and any unique
identification number issued by any governmental or taxation authority to which any such
report has been made (if available).
20.6
Information: miscellaneous
Each Obligor shall, and shall procure that each other Transaction Obligor shall, supply to the
Lender:
(a)
all documents dispatched by it to its shareholders (or any class of them) or its creditors generally
at the same time as they are dispatched;
(b)
the filing or commencement of any action, suit, investigation or proceeding by or before any
arbitrator or governmental authority against or affecting any Transaction Obligor including
pursuant to any applicable Sanctions;
(c)
other than in relation to paragraph (b) above, promptly upon becoming aware of them, the details
of any litigation, arbitration or administrative proceedings or investigations (including proceedings
or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code)
which are current, threatened or pending against any member of the Group, and which might, if
adversely determined, have a Material Adverse Effect;
(d)
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral
body or agency which is made against any member of the Group and which might have a Material
Adverse Effect;
(e)
promptly, its constitutional documents where these have been amended or varied;
(f)
promptly, such further information and/or documents regarding:
(i)
each Ship, goods transported on each Ship, its Earnings and its Insurances;
(ii)
the Security Assets;
(iii)
compliance of the Transaction Obligors with the terms of the Finance Documents;
(iv)
the financial condition, business and operations of any member of the Group (including
any press releases),
as the Lender may reasonably request;
(g)
promptly, such further information and/or documents as the Lender may reasonably request so
as to enable the Lender to comply with any laws applicable to it or as may be required by any
regulatory authority; and
(h)
social and governance (i.e. sustainability) aspects of the Parent Guarantor's business model
necessary to build the Lender's environmental, social and governance rating of the Parent
Guarantor.
20.7
Notification of Default
(a)
Each Obligor shall, and shall procure that each other Transaction Obligor shall, notify the Lender
of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Obligor is aware that a notification has already been provided by
another Obligor).
(b)
Promptly upon a request by the Lender, each Borrower shall supply to the Lender a certificate
signed by two of its directors or senior officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy
it).
20.8
"
Know your customer
"
(a)
If:
(i)
the introduction of or any change in (or in the interpretation, administration or application
of) any law or regulation made after the date of this Agreement;
(ii)
any change in the status of a Transaction Obligor (or the Holding Company of a Transaction
Obligor) (including, without limitation, a change of ownership of a Transaction Obligor or
the Holding Company of a Transaction Obligor) after the date of this Agreement; or
(iii)
a proposed assignment by the Lender of any of its rights under this Agreement,
obliges the Lender (or, in the case of paragraph (iii) above, any prospective assignee) to comply
with "know your customer" or similar identification procedures in circumstances where the
necessary information is not already available to it, each Obligor shall promptly upon the request
of the Lender supply, or procure the supply of, such documentation and other evidence as is
reasonably requested by the Lender (for itself or, in the case of the event described in paragraph
(iii) above, on behalf of any prospective assignee) in order for the Lender or, in the case of the
event described in paragraph (iii) above, any prospective assignee to carry out and be satisfied it
has complied with all necessary "know your customer" or other similar checks under the Danish
Consolidating Act no. 1022 of 13
th
Financing of Terrorism (as amended and supplemented) and all applicable laws and regulations
pursuant to the transactions contemplated in the Finance Documents.
(b)
Each Obligor shall promptly upon the request of the Lender supply copies of the signing authority
of any person executing a document on behalf of the Customers (as defined in paragraph 6.7 of
Part A of Schedule 2 (
Conditions Precedent
)) in such form as specified by the Lender (acting
reasonably and having regard to the forms of authorities that were provided by that Transaction
Obligor pursuant to the relevant provisions of Clause 4 (
Conditions of Utilisation
)).
(c)
The Borrowers shall promptly upon the request of the Lender supply a statement from the
Customers (as defined in paragraph 6.7 of Part A of Schedule 2 (
Conditions Precedent
)) confirming
that the documents, data or information previously provided to the Lender under paragraph (b)
above and paragraph 6.7 of Part A of Schedule 2 (
Conditions Precedent
) is up-to-date, or,
alternatively, any relevant updated documents, data or information.
(d)
The Borrowers shall supply or procure to supply, upon the request of the Lender, all information
necessary in order for the Lender to carry out all relevant sanctions screenings and be satisfied it
has complied with all applicable sanctions regulations including the Lender's internal Sanction
Compliance Procedure and such other documentation and information as the Lender deems
necessary and/or advisable in order to comply with any law and/or regulation regarding money
laundering and/or the financing of terrorist activities (including, without limitation, such
documentation and information as the Lender deems necessary and/or advisable in order to
comply with customer due diligence measures for purposes of AML/CTF checks as required by the
Danish Consolidating Act no. 1782 of November 27, 2020 on Measures to Prevent Money
Laundering and Financing of Terrorism (as amended and supplemented) and with the Lender's
internal AML/CTF policies).
21
FINANCIAL COVENANTS
21.1
Financial covenants
(a)
The Parent Guarantor shall ensure that at all times:
(i)
the aggregate of all Cash and Cash Equivalents held by the Parent Guarantor on a
consolidated basis shall at all times be no less than $500,000 per Fleet Vessel; and
(ii)
the Market Value Adjusted Net Worth of the Group shall be no less than the higher of (A)
$150,000,000 and (B) 25 per cent. of the Market Value Adjusted Total Assets.
(b)
The Parent Guarantor shall:
(i)
comply with the financial covenants as set out in paragraph (a) above at all times
throughout the Security Period , such financial covenants to be calculated on the basis of
the consolidated financial statements of the Parent Guarantor delivered pursuant to
paragraph (a) and paragraph (b) of Clause 20.2 (
Financial statements
); and
(ii)
provide to the Lender a Compliance Certificate and any other required information in
accordance with Clause 20.3 (
Compliance Certificate
).
21.2
Definitions
In this Clause 21 (
Financial covenants
):
"
Applicable Accounts
" means, as at the date of calculation or, as the case may be, in respect of an
accounting period, the annual audited consolidated financial statements of the Parent Guarantor
or the quarterly unaudited consolidated financial statements for the second quarter (including the
balance for the first six-month period of the relevant Financial Year), in each case, which the Parent
Guarantor is obliged to deliver to the Lender pursuant to Clause 20.2 (
Financial statements
) (in
accordance with the provisions of Clause 20.4 (
Requirements as to financial statements
));
"
Cash and Cash Equivalents
" means, at any time, the aggregate of:
(a)
the amount of freely available and unencumbered credit balances on any deposit or
current account;
(b)
the market value of transferable certificates of deposit in a freely convertible currency
acceptable to the Lender issued by a prime international bank; and
(c)
the market value of equity securities (if and to the extent that the Lender is satisfied that
such equity securities are readily saleable for cash and that there is a ready market
therefor) and investment grade debt securities which are publicly traded on a major stock
exchange or investment market (valued at market value as at any applicable date of
determination);
in each case owned free of any Security (other than a Security in favour of the Lender) by the
Parent Guarantor and any of its Subsidiaries where:
(i)
the market value of any asset specified in paragraph (b) and (c) shall be the bid
price quoted for it on the relevant calculation date by the Lender; and
(ii)
the amount or value of any asset denominated in a currency other than dollars
shall be converted into dollars using the Lender's spot rate for the purchase of
Dollars with that currency on the relevant calculation date;
"
Market Value Adjusted Net Worth
" means Market Value Adjusted Total Assets less Total Debt;
"
Market Value Adjusted Total Assets
" means, at any time, the Total Assets adjusted to reflect the
difference between the book values of all Fleet Vessels and the aggregate Market Value of all Fleet
Vessels;
"
Total Assets
" means, at any date of calculation, the amount of the total assets of the Group
determined on a consolidated basis as shown in the most recent Applicable Accounts delivered by
the Parent Guarantor pursuant to Clause 20.2 (
Financial statements
); and
"
Total Debt
" means, at any date of calculation or, as the case may be, for any accounting period,
the total liabilities of the Group on a consolidated basis as at that date or for that period as shown
in the most recent Applicable Accounts delivered by the Parent Guarantor pursuant to Clause 20.2
(
Financial statements
).
22
GENERAL UNDERTAKINGS
22.1
General
The undertakings in this Clause 22 (
General Undertakings
) remain in force throughout the Security
Period except as the Lender may otherwise permit.
22.2
Authorisations
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
(a)
obtain, comply with and do all that is necessary to maintain in full force and effect;
(b)
supply certified copies to the Lender of,
any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of
the Approved Flag at any time of each Ship to enable it to:
(i)
perform its obligations under the Transaction Documents to which it is a party;
(ii)
ensure the legality, validity, enforceability or admissibility in evidence in any Relevant
Jurisdiction or in the state of the Approved Flag at any time of each Ship of any Transaction
Document to which it is a party;
(iii)
own and operate each Ship (in the case of the Borrowers); and
(c)
without prejudice to the generality of the above, ensure that if, but for the obtaining of an
Authorisation, an Obligor would be in breach of any of the provisions of this Agreement which
relate to Sanctions or, by reason of Sanctions, would be prohibited from performing any provision
of this Agreement, such an Authorisation is obtained so as to avoid such breach or to enable such
performance.
22.3
Compliance with laws
Each Obligor shall, and shall procure that each other Transaction Obligor will, comply in all respects
with all laws and regulations to which it may be subject, if failure so to comply has or is reasonably
likely to have a Material Adverse Effect and shall ensure that no Transaction Obligor shall engage
or conspire to engage in any activity or conduct which would violate any Anti-Money Laundering
Laws.
22.4
Environmental compliance
Each Obligor shall, and shall procure that each other Transaction Obligor will, and the Parent
Guarantor shall ensure that each other member of the Group will:
(a)
comply with all Environmental Laws;
(b)
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
(c)
implement procedures to monitor compliance with and to prevent liability under any
Environmental Law.
22.5
Environmental Claims
Each Obligor shall, and shall procure that each other Transaction Obligor will, (through the Parent
Guarantor) promptly upon becoming aware of the same, inform the Lender in writing of:
(a)
any Environmental Claim against any member of the Group which is current, pending or
threatened; and
(b)
any facts or circumstances which are reasonably likely to result in any Environmental Claim being
commenced or threatened against any member of the Group,
where the claim, if determined against that member of the Group, has or is reasonably likely to
have a Material Adverse Effect.
22.6
Taxation
(a)
Each Obligor shall, and shall procure that each other Transaction Obligor will, and the Parent
Guarantor shall ensure that each other member of the Group will pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without incurring penalties unless and
only to the extent that:
(i)
such payment is being contested in good faith;
(ii)
adequate reserves are maintained for those Taxes and the costs required to contest them
and both have been disclosed in its latest financial statements delivered to the Lender
under Clause 20.2 (
Financial statements
); and
(iii)
such payment can be lawfully withheld.
(b)
No member of the Group shall and the Obligors shall procure that no other Transaction Obligor
will, change its residence for Tax purposes.
22.7
Overseas companies
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly inform the
Lender if it delivers to the Registrar particulars required under the Overseas Regulations of any UK
Establishment and it shall comply with any directions given to it by the Lender regarding the
recording of any Transaction Security on the register which it is required to maintain under The
Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
22.8
No change to centre of main interests
No Obligor shall change the location of its centre of main interest (as that term is used in
Article 3(1) of the Regulation) from that stated in relation to it in Clause 19.31 (
Centre of main
interests and establishments
) and it will create no "
establishment
" (as that term is used in Article
2(10) of the Regulation) in any other jurisdiction.
22.9
Pari passu ranking
Each Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all
times any unsecured and unsubordinated claims of the Lender against it under the Finance
Documents rank at least
pari passu
creditors except those creditors whose claims are mandatorily preferred by laws of general
application to companies.
22.10
Title
(a)
Each Borrower shall hold the legal title to, and own the entire beneficial interest in the Ship owned
by it, its Earnings and its Insurances.
(b)
With effect on and from its creation or intended creation, each Obligor shall hold the legal title to,
and own the entire beneficial interest in any other assets the subject of any Transaction Security
created or intended to be created by such Obligor.
22.11
Negative pledge
(a)
No Borrower will create or permit to subsist any Security over any of its assets.
(b)
No Borrower shall:
(i)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may
be leased to or re-acquired by a Transaction Obligor or any other member of the Group;
(ii)
sell, transfer or otherwise dispose of any of its receivables on recourse terms;
(iii)
enter into any arrangement under which money or the benefit of a bank or other account
may be applied, set-off or made subject to a combination of accounts; or
(iv)
enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of
raising Financial Indebtedness or of financing the acquisition of an asset.
(c)
Paragraphs (a) and (b) above do not apply to any Permitted Security.
22.12
Disposals
(a)
No Borrower shall enter into a single transaction or a series of transactions (whether related or
not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset
(including without limitation any Ship, its Earnings or its Insurances).
(b)
The Parent Guarantor shall not enter into a single transaction or a series of transactions (whether
related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose
all or substantially all of its assets.
(c)
Paragraph (a) above does not apply to any Charter as all Charters are subject to Clause 24.17
(
Restrictions on chartering, appointment of managers etc.
).
22.13
Merger
(a)
No Borrower will enter into any amalgamation, demerger, merger, consolidation or corporate
reconstruction.
(b)
The Parent Guarantor will not enter into any amalgamation, demerger, merger, consolidation or
corporate reconstruction, unless after such amalgamation, demerger, merger, consolidation or
corporate reconstruction (i) the Parent Guarantor remains the surviving entity, (ii) the financial
covenants set out in Clause 21 (
Financial Covenants
) are complied with and (iii) no Default has
occurred which is continuing at the relevant time.
22.14
Change of business
(a)
The Parent Guarantor shall:
(i)
procure that no substantial change is made to the general nature of the business of the
Parent Guarantor or the Group from that carried on at the date of this Agreement; and
(ii)
maintain its listing on the New York Stock Exchange or any other stock exchange
acceptable to the Lender.
(b)
No Borrower shall engage in any business other than the ownership and operation of its Ship.
(c)
No Borrower shall sell all or a substantial part of its business (to the effect that turnover and
income will be moved outside the direct ownership of that Borrower).
22.15
Financial Indebtedness
(a)
No Obligor shall or permit to be outstanding any Financial Indebtedness except Permitted Financial
Indebtedness.
(b)
Each Obligor shall procure that each shareholder loan and each intercompany loan shall be fully
subordinated to any and all obligations of the Obligors and the rights of the Lender under the
Finance Documents in accordance with the terms of the relevant Subordination Agreement.
22.16
Expenditure
No Borrower shall incur any expenditure or liabilities, except for expenditure and liabilities
reasonably incurred in the ordinary course of owning, operating, maintaining and repairing its
Ship.
22.17
Share capital
No Borrower shall:
(a)
purchase, cancel or redeem any of its issued shares;
(b)
increase or reduce the number of shares it is authorised to issue;
(c)
issue any further shares except to the Parent Guarantor and provided such new shares are made
subject to the terms of the Shares Security applicable to that Borrower immediately upon the issue
of such new shares in a manner satisfactory to the Lender and the terms of that Shares Security
are complied with;
(d)
appoint any further director, officer or secretary of that Borrower (unless the provisions of the
Shares Security applicable to that Borrower are complied with).
22.18
Dividends
An Obligor may:
(a)
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid
dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share
capital (or any class of its share capital) (each a "
Distrubtion
");
(b)
repay or distribute any dividend or share premium reserve;
(c)
pay any management, advisory or other fee to or to the order of any of its shareholders; or
(d)
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so,
provided that
:
(i)
no Event of Default has occurred or would occur as a result of such Distribution;
(ii)
the minimum Security Cover Ratio required under Clause 25.1 (
Minimum required security
cover
) is complied with; and
(iii)
Financial
covenants
).
22.19
Other transactions
(a)
No Borrower shall:
(i)
be the creditor in respect of any loan or any form of credit to any person other than
another Transaction Obligor and where such loan or form of credit is Permitted Financial
Indebtedness;
(ii)
give or allow to be outstanding any guarantee or indemnity to or for the benefit of any
person in respect of any obligation of any other person or enter into any document under
which that Transaction Obligor assumes any liability of any other person other than any
guarantee or indemnity given under the Finance Documents;
(iii)
enter into any material agreement other than:
(A)
the Transaction Documents; and
(B)
any other agreement expressly allowed under any other term of this Agreement;
(iv)
acquire any shares or other securities other than US or UK Treasury bills and certificates
of deposit issued by major North American or European banks;
(v)
amend or terminate any material agreement to which it is a party; or
(vi)
amend its constitutional documents.
(b)
No Obligor shall enter into any transaction on terms which are, in any respect, less favourable to
that Transaction Obligor than those which it could obtain in a bargain made at arms' length.
(c)
No Borrower shall acquire any Subsidiaries or make or participate in any investment or in any joint
venture.
22.20
Unlawfulness, invalidity and ranking; Security imperilled
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, (and the
Parent Guarantor shall procure that no other member of the Group will) do (or fail to do) or cause
or permit another person to do (or omit to do) anything which is likely to:
(a)
make it unlawful or contrary to Sanctions for a Transaction Obligor to perform any of its obligations
under the Transaction Documents;
(b)
cause any obligation of a Transaction Obligor under the Transaction Documents to cease to be
legal, valid, binding or enforceable;
(c)
cause any Transaction Document to cease to be in full force and effect;
(d)
cause any Transaction Security to rank after, or lose its priority to, any other Security; and
(e)
imperil or jeopardise the Transaction Security.
22.21
Sanctions undertakings
(a)
No Transaction Obligor, nor any of their respective directors, officers or employees or, to the
knowledge of any Transaction Obligor, any Affiliate of any Transaction Obligor, will (and the
Obligors shall procure that no other member of the Group will):
(i)
directly or indirectly, make any proceeds of the Loans available to, or for the benefit of, a
Prohibited Person or permit or authorise any such proceeds to be applied directly or
indirectly in a manner that could result in the Lender being in violation of Sanctions or that
would be contrary to Sanctions or otherwise for a purpose prohibited by Sanctions;
(ii)
engage in any activities, business or transactions that could result in it or any other
member of the Group or the Lender being designated as a Prohibited Person; and/or
(iii)
directly or indirectly fund all or part of any payment or repayment under the Facility out
of proceeds derived from transactions which would be prohibited by Sanctions or by
sanctions policies of the Lender or which would otherwise cause the Lender or other
national under the jurisdiction of a Sanctions Authority to be in breach of Sanctions.
(b)
Each Transaction Obligor shall (and the Obligors shall procure that each other member of the
Group will) comply in all respects with applicable Sanctions.
(c)
The Transaction Obligors shall institute and maintain policies and procedures designed to promote
and achieve compliance by each member of the Group with applicable Sanctions.
22.22
Further assurance
(a)
Each Obligor shall, and shall procure that each other Transaction Obligor will, (and the Parent
Guarantor shall procure that each member of the Group will) promptly, and in any event within
the time period specified by the Lender do all such acts (including procuring or arranging any
registration, notarisation or authentication or the giving of any notice) or execute or procure
execution of all such documents (including assignments, transfers, mortgages, charges, notices,
instructions, acknowledgments, proxies and powers of attorney), as the Lender may specify (and
in such form as the Lender may require in favour of the Lender or its nominee(s)):
(i)
to create, perfect, vest in favour of the Lender or protect the priority of the Security or any
right of any kind created or intended to be created under or evidenced by the Finance
Documents (which may include the execution of a mortgage, charge, assignment or other
Security over all or any of the assets which are, or are intended to be, the subject of the
Transaction Security) or for the exercise of any rights, powers and remedies of the Lender
or any Receiver or Delegate provided by or pursuant to the Finance Documents or by law;
(ii)
to confer on the Lender Security over any property and assets of that Transaction Obligor
located in any jurisdiction equivalent or similar to the Security intended to be conferred
by or pursuant to the Finance Documents;
(iii)
to facilitate or expedite the realisation and/or sale of, the transfer of title to or the grant
of, any interest in or right relating to the assets which are, or are intended to be, the
subject of the Transaction Security or to exercise any power specified in any Finance
Document in respect of which the Security has become enforceable; and/or
(iv)
to enable or assist the Lender to enter into any transaction to commence, defend or
conduct any proceedings and/or to take any other action relating to any item of the
Security Property.
(b)
Each Obligor shall, and shall procure that each other Transaction Obligor will, (and the Parent
Guarantor shall procure that each member of the Group will) take all such action as is available to
it (including making all filings and registrations) as may be necessary for the purpose of the
creation, perfection, protection or maintenance of any Security conferred or intended to be
conferred on the Lender by or pursuant to the Finance Documents.
(c)
At the same time as an Obligor delivers to the Lender any document executed by itself or another
Transaction Obligor pursuant to this Clause 22.22 (
Further assurance
), that Obligor shall deliver,
or shall procure that such other Transaction Obligor will deliver, to the Lender a certificate signed
by two of that Obligor's or Transaction Obligor's directors or officers which shall:
(i)
set out the text of a resolution of that Obligor's or Transaction Obligor's directors
specifically authorising the execution of the document specified by the Lender; and
(ii)
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 or
officers and is valid under that Obligor's or Transaction Obligor's articles of association or
other constitutional documents.
22.23
Anti-corruption law
(a)
No Borrower shall directly or indirectly use the proceeds of the Loan for any purpose which would
breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other
similar legislation in other jurisdictions.
(b)
Each Obligor shall, and shall procure that each Transaction Obligor and each of their respective
Subsidiaries, directors or officers, beneficial owners, affiliates, agents or employees shall:
(i)
conduct its business and operations at all times in compliance with Anti-Money Laundering
Laws;
(ii)
in the case of the Borrowers, not use the transaction proceeds for any purpose that would
breach Anti-Money Laundering Laws; and
(iii)
maintain policies and procedures designed to promote and achieve compliance with Anti-
Money Laundering Laws.
22.24
Change in Financial Year
No Obligor shall change its Financial Year end date.
22.25
No change of domicile
No Obligor shall change its Original Jurisdiction or its place of domicile.
23
INSURANCE UNDERTAKINGS
23.1
General
The undertakings in this Clause 23 (
Insurance Undertakings
) remain in force from the date of this
Agreement throughout the rest of the Security Period except as the Lender may otherwise permit.
23.2
Maintenance of obligatory insurances
Each Borrower shall keep the Ship owned by it insured at its expense against:
(a)
hull and machinery risks (excluding hull interest and excess risks);
(b)
freight interest and hull interest and any other usual marine risks such as increased value and
excess risks;
(c)
war risks (including the London Blocking and Trapping addendum or similar arrangement and acts
of terrorism and piracy);
(d)
protection and indemnity risks (including liability for oil pollution and excess war risk protection
and indemnity cover); and
(e)
any other risks against which the relevant Borrower is required to insure in light of the relevant
Ship's trading pattern and as are from time to time required by any public body, the relevant
Approved Classification Society or similar entity having authority over that Borrower, that Ship or
the relevant Approved Managers and on the basis of usual insurances that a prudent owner would
take out in the ordinary course of business.
23.3
Terms of obligatory insurances
Each Borrower shall effect such insurances:
(a)
in dollars;
(b)
in the case of hull and machinery risks (but excluding hull interest and excess risks) in an amount
on an agreed value basis equal to 80 per cent. of the Market Value of its Ship;
(c)
in the case of hull and machinery risks, plus freight interest and hull interest and any other usual
marine risks such as increased value and excess risks, in an amount on an agreed value basis at
least equal to the greater of:
(i)
120 per cent. of the outstanding amount under the relevant Tranche relating to its Ship;
and
(ii)
the Market Value of that Ship;
(d)
in the case of war risks (including the London Blocking and Trapping addendum or similar
arrangement and acts of terrorism and piracy), in an amount on an agreed value basis of at least
equal to the greater of:
(i)
120 per cent. of the outstanding amount under the relevant Tranche relating to its Ship;
and
(ii)
the Market Value of that Ship;
(e)
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover
from time to time available under basic protection and indemnity club entry and in the
international marine insurance market (minimum $1,000,000,000);
(f)
in the case of protection and indemnity risks, in respect of the full tonnage of its Ship;
(g)
on approved terms (based on Nordic Marine Insurance Plan, Institute Time Clauses Terms or other
recognised marine insurance terms and in respect of the protection and indemnity risks, on
standard Club Rules); and
(h)
through Approved Brokers and with approved insurance companies and/or underwriters with a
minimum having A- (S&P) or A3 (Moody's) rating or, in the case of war risks and protection and
indemnity risks, in approved war risks and protection and indemnity risks associations.
23.4
Further protections for the Lender
In addition to the terms set out in Clause 23.3 (
Terms of obligatory insurances
), each Borrower
shall procure that the obligatory insurances effected by it shall:
(a)
subject always to paragraph (b), name that Borrower as the sole named insured unless the interest
of every other named insured or co-insured is included on the policies (e.g. as owner, manager,
crew manager, holding company etc.) and the interest of such other named insured or co-insured
is limited:
(i)
in respect of any obligatory insurances for hull and machinery and war risks;
(A)
to any provable out-of-pocket expenses that it has incurred and which form part
of any recoverable claim on underwriters; and
(B)
to any third party liability claims where cover for such claims is provided by the
policy (and then only in respect of discharge of any claims made against it); and
(ii)
in respect of any obligatory insurances for protection and indemnity risks, to any
recoveries it is entitled to make by way of reimbursement following discharge of any third
party liability claims made specifically against it;
and every other named insured has undertaken in writing to the Lender (in such form as it requires)
that any deductible shall be apportioned between that Borrower and every other named insured
in proportion to the gross claims made or paid by each of them and that it shall do all things
necessary and provide all documents, evidence and information to enable the Lender to collect or
recover any moneys which at any time become payable in respect of the obligatory insurances;
(b)
whenever the Lender requires, name (or be amended to name) the Lender as additional named
insured for its rights and interests, warranted no operational interest and with full waiver of rights
of subrogation against the Lender, but without the Lender being liable to pay (but having the right
to pay) premiums, calls or other assessments in respect of such insurance;
(c)
name the Lender as loss payee with such directions for payment as the Lender may specify;
(d)
provide that all payments by or on behalf of the insurers under the obligatory insurances to the
Lender shall be made without set off, counterclaim or deductions or condition whatsoever and
include waiver of lien for any fleet premiums;
(e)
provide that the obligatory insurances shall be primary without right of contribution from other
insurances which may be carried by the Lender; and
(f)
provide that the Lender may make proof of loss if that Borrower fails to do so.
23.5
Renewal of obligatory insurances
Each Borrower shall:
(a)
at least 21 days before the expiry of any obligatory insurance effected by it:
(i)
notify the Lender of the Approved Brokers (or other insurers) and any protection and
indemnity or war risks association through or with which it proposes to renew that
obligatory insurance and of the proposed terms of renewal; and
(ii)
obtain the Lender's approval to the matters referred to in sub-paragraph (i) above;
(b)
at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in
accordance with the Lender's approval pursuant to paragraph (a) above; and
(c)
procure that the Approved Brokers and/or the approved war risks and protection and indemnity
associations with which such a renewal is effected shall promptly after the renewal notify the
Lender in writing of the terms and conditions of the renewal.
23.6
Copies of policies; letters of undertaking
Each Borrower shall ensure that the Approved Brokers provide the Lender with:
(a)
pro forma
renew; and
(b)
a letter or letters of undertaking in a form required by the Lender and including undertakings by
the Approved Brokers that:
(i)
they will have endorsed on each policy, immediately upon issue, a loss payable clause and
a notice of assignment complying with the provisions of Clause 23.4 (
Further protections
for the Lender
);
(ii)
they will hold such policies, and the benefit of such insurances, to the order of the Lender
in accordance with such loss payable clause;
(iii)
they will advise the Lender immediately of any material change to the terms of the
obligatory insurances;
(iv)
they will, if they have not received notice of renewal instructions from the relevant
Borrower or its agents, notify the Lender not less than 14 days before the expiry of the
obligatory insurances;
(v)
if they receive instructions to renew the obligatory insurances, they will promptly notify
the Lender of the terms of the instructions;
(vi)
they will not set off against any sum recoverable in respect of a claim relating to the Ship
owned by that Borrower under such obligatory insurances any premiums or other
amounts due to them or any other person whether in respect of that Ship or otherwise,
they waive any lien on the policies, or any sums received under them, which they might
have in respect of such premiums or other amounts and they will not cancel such
obligatory insurances by reason of non-payment of such premiums or other amounts; and
(vii)
they will arrange for a separate policy to be issued in respect of the Ship owned by that
Borrower forthwith upon being so requested by the Lender.
23.7
Copies of certificates of entry
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in
which the Ship owned by it is entered provide the Lender with:
(a)
a certified copy of the certificate of entry for that Ship;
(b)
a letter or letters of undertaking in such form as may be required by the Lender; and
(c)
a certified copy of each certificate of financial responsibility for pollution by oil or other
Environmentally Sensitive Material issued by the relevant certifying authority in relation to that
Ship.
23.8
Deposit of original policies
Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are
deposited with the Approved Brokers through which the insurances are effected or renewed.
23.9
Payment of premiums
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory
insurances effected by it and produce all relevant receipts when so required by the Lender.
23.10
Guarantees
Each Borrower shall ensure that any guarantees required by a protection and indemnity or war
risks association are promptly issued and remain in full force and effect.
23.11
Compliance with terms of insurances
(a)
No Borrower shall do or omit to do (nor permit to be done or not to be done) any act or thing
which would or might render any obligatory insurance invalid, void, voidable or unenforceable or
render any sum payable under an obligatory insurance repayable in whole or in part.
(b)
Without limiting paragraph (a) above, each Borrower shall:
(i)
take all necessary action and comply with all requirements which may from time to time
be applicable to the obligatory insurances, and (without limiting the obligation contained
in sub-paragraph (iii) of paragraph (b) of Clause 23.6 (
Copies of policies; letters of
undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions
or qualifications to which the Lender has not given its prior approval;
(ii)
not make any changes relating to the classification or classification society or manager or
operator of the Ship owned by it unless they are approved by the underwriters of the
obligatory insurances;
(iii)
make (and promptly supply copies to the Lender of) all quarterly or other voyage
declarations which may be required by the protection and indemnity risks association in
which the Ship owned by it is entered to maintain cover for trading to the United States of
America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act
1990 or any other applicable legislation); and
(iv)
not employ the Ship owned by it, nor allow it to be employed, otherwise than in
conformity with the terms and conditions of the obligatory insurances, without first
obtaining the consent of the insurers and complying with any requirements (as to extra
premium or otherwise) which the insurers specify.
23.12
Alteration to terms of insurances
No Borrower shall make or agree to any alteration to the terms of any obligatory insurance or
waive any right relating to any obligatory insurance.
23.13
Settlement of claims
Each Borrower shall:
(a)
not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for
a Major Casualty; and
(b)
do all things necessary and provide all documents, evidence and information to enable the Lender
to collect or recover any moneys which at any time become payable in respect of the obligatory
insurances.
23.14
Provision of copies of communications
Each Borrower shall provide the Lender, at the time of each such communication, with copies of
all written communications between that Borrower and:
(a)
the Approved Brokers;
(b)
the approved protection and indemnity and/or war risks associations; and
(c)
the approved insurance companies and/or underwriters,
which relate directly or indirectly to:
(i)
that Borrower's obligations relating to the obligatory insurances including, without
limitation, all requisite declarations and payments of additional premiums or calls; and
(ii)
any credit arrangements made between that Borrower and any of the persons referred to
in paragraphs (a) or (b) above relating wholly or partly to the effecting or maintenance of
the obligatory insurances.
23.15
Provision of information
Each Borrower shall promptly provide the Lender (or any persons which it may designate) with
any information which the Lender (or any such designated person) requests for the purpose of:
(a)
obtaining or preparing any report from an independent marine insurance broker as to the
adequacy of the obligatory insurances effected or proposed to be effected; and/or
(b)
effecting, maintaining or renewing any such insurances as are referred to in Clause 23.16
(
Mortgagee's interest and additional perils insurances
) or dealing with or considering any matters
relating to any such insurances,
and the Borrowers shall, forthwith upon demand, indemnify the Lender in respect of all fees and
other expenses incurred by or for the account of the Lender in connection with any such report as
is referred to in paragraph (a) above.
23.16
Mortgagee's interest and additional perils insurances
(a)
The Lender shall be entitled from time to time to effect, maintain and renew a mortgagee's interest
marine insurance and a mortgagee's interest additional perils insurance in respect of each Ship,
each in an amount no greater than 110 per cent. of the relevant Tranche, on such terms, through
such insurers and generally in such manner as the Lender may from time to time consider
appropriate.
(b)
The Borrowers shall upon demand fully indemnify the Lender in respect of all premiums and other
expenses which are incurred in connection with or with a view to effecting, maintaining or
renewing any insurance referred to in paragraph
(a) above or dealing with, or considering, any
matter arising out of any such insurance.
(c)
The Lender shall be entitled to disclose all necessary information for the purpose of effecting the
insurance cover under paragraph (a) above, including without limitation, the name of the relevant
Ship, the IMO number of the relevant Ship and the outstanding amount of the Secured Liabilities.
23.17
Review of insurance requirements
The Lender shall be entitled to review the requirements of this Clause 23 (
Insurance Undertakings
)
from time to time in order to take account of any changes in circumstances after the date of this
Agreement which are, in the opinion of the Lender, significant and capable of affecting the relevant
Borrower or its Ship and its or their insurance (including, without limitation, changes in the
availability or the cost of insurance coverage or the risks to which that Borrower may be subject).
23.18
Modification of insurance requirements
The Lender shall notify the relevant Borrower of any proposed modification under Clause 23.17
(
Review of insurance requirements
) to the requirements of this Clause 23 (
Insurance Undertakings
)
which the Lender considers appropriate in the circumstances, and such modification shall take
effect on and from the date it is notified in writing to the relevant Borrower as an amendment to
this Clause 23 (
Insurance Undertakings
) and shall bind the Borrowers accordingly.
24
GENERAL SHIP UNDERTAKINGS
24.1
General
The undertakings in this Clause 24 (
General Ship Undertakings
) remain in force on and from the
date of this Agreement and throughout the rest of the Security Period except as the Lender may
otherwise permit.
24.2
Ships' names and registration
Each Borrower shall, in respect of the Ship owned by it:
(a)
keep that Ship registered in its name under the Approved Flag from time to time at its port of
registration;
(b)
not do or allow to be done anything as a result of which such registration might be suspended,
cancelled or imperilled;
(c)
not enter into any dual flagging arrangement in respect of that Ship; and
(d)
not change the name of that Ship,
provided that
(i)
that Ship remaining subject to Security securing the Secured Liabilities created by a first
priority or preferred ship mortgage on that Ship and, if appropriate, a first priority deed of
covenant collateral to that mortgage (or equivalent first priority Security) on substantially
the same terms as the Mortgage on that Ship and on such other terms and in such other
form as the Lender shall approve or require;
(ii)
the execution of such other documentation amending and supplementing the Finance
Documents as the Lender shall approve or require; and
(iii)
in the case of a change of flag of a Ship, payment of the reflagging fee set out in Clause
11.3 (
Reflagging fee
).
24.3
Repair and classification
(a)
Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
(i)
consistent with first class ship ownership and management practice;
(ii)
so as to ensure that that Ship's Market Value is not materially reduced; and
(iii)
so as to maintain the Approved Classification free of material overdue recommendations
and conditions or adverse notations.
(b)
Subject to Clause 4.5 (
Conditions subsequent
), no Borrower may change the Approved
Classification Society in respect of its Ship.
(c)
Notwithstanding that each of Ship H and Ship I are classified with two Approved Classification
Societies, the rules of Det Norske Veritas shall apply in full extent to those Ships.
24.4
Classification society undertaking
Each Borrower shall, in respect of the Ship owned by it, instruct the relevant Approved
Classification Society (and procure that the Approved Classification Society undertakes with the
Lender):
(a)
to send to the Lender, following receipt of a written request from the Lender, certified true copies
of all original class records held by the Approved Classification Society in relation to that Ship;
(b)
to allow the Lender (or its agents), at any time and from time to time, to inspect the original class
and related records of that Borrower and that Ship at the offices of the Approved Classification
Society and to take copies of them;
(c)
to notify the Lender immediately in writing if the Approved Classification Society:
(i)
receives notification from that Borrower or any person that that Ship's Approved
Classification Society is to be changed; or
(ii)
becomes aware of any facts or matters which may result in or have resulted in a change,
suspension, discontinuance, withdrawal or expiry of that Ship's class under the rules or
terms and conditions of that Borrower or that Ship's membership of the Approved
Classification Society;
(d)
following receipt of a written request from the Lender:
(i)
to confirm that that Borrower is not in default of any of its contractual obligations or
liabilities to the Approved Classification Society, including confirmation that it has paid in
full all fees or other charges due and payable to the Approved Classification Society; or
(ii)
to confirm that that Borrower is in default of any of its contractual obligations or liabilities
to the Approved Classification Society, to specify to the Lender in reasonable detail the
facts and circumstances of such default, the consequences of such default, and any
remedy period agreed or allowed by the Approved Classification Society.
24.5
Modifications
No Borrower shall make any modification or repairs to, or replacement of, any Ship or equipment
installed on it which would or might materially alter the structure, type or performance
characteristics of that Ship or materially reduce its value.
24.6
Removal and installation of parts
(a)
Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any
item of equipment installed on any Ship unless:
(i)
the part or item so removed is forthwith replaced by a suitable part or item which is in the
same condition as or better condition than the part or item removed;
(ii)
the replacement part or item is free from any Security in favour of any person other than
the Lender; and
(iii)
the replacement part or item becomes, on installation on that Ship, the property of that
Borrower and subject to the security constituted by the Mortgage on that Ship.
(b)
A Borrower may install equipment owned by a third party if the equipment can be removed
without any risk of damage to the Ship owned by that Borrower.
24.7
Surveys
Each Borrower shall submit the Ship owned by it regularly to all periodic or other surveys which
may be required for classification purposes and, if so required by the Lender, provide the Lender,
with copies of all survey reports.
24.8
Inspection
(a)
Each Borrower shall permit the Lender (acting through surveyors or other persons appointed by it
for that purpose provided that such surveyor shall not be required to execute any letter of
indemnity) to board the Ship owned by it to inspect its condition or to satisfy themselves about
proposed or executed repairs and shall afford all proper facilities for such inspections (i) if no Event
of Default has occurred at all reasonable times, without interfering in the ordinary trading of that
Ship and with reasonable prior notice and (ii) following the occurrence of an Event of Default at all
times.
(b)
So long as no Event of Default shall have occurred, the Borrowers shall not be obliged to pay any
fees and expenses in respect of more than one inspection of each Ship in any calendar year.
24.9
Access to books and records
Each Borrower shall permit (and shall procure that any Approved Manager or other operator shall
permit) the Lender, at the request of the Lender, to have access to the class records of its Ship.
24.10
Prevention of and release from arrest
(a)
Each Borrower shall, in respect of the Ship owned by it, promptly discharge:
(i)
all liabilities which give or may give rise to maritime or possessory liens on or claims
enforceable against that Ship, its Earnings or its Insurances;
(ii)
all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its
Insurances; and
(iii)
all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances.
(b)
Each Borrower shall, immediately upon receiving notice of the arrest of the Ship owned by it or of
its detention in exercise or purported exercise of any lien or claim, take all steps necessary to
procure its release by providing bail or otherwise as the circumstances may require.
24.11
Compliance with laws etc.
Each Borrower shall:
(a)
comply, or procure compliance with all laws or regulations:
(i)
relating to its business generally; and
(ii)
relating to the Ship owned by it, its ownership, employment, operation, management and
registration,
including, but not limited to:
(A)
the ISM Code;
(B)
the ISPS Code;
(C)
all Environmental Laws;
(D)
all Sanctions; and
(E)
the laws of the Approved Flag; and
(b)
obtain, comply with and do all that is necessary to maintain in full force and effect any
Environmental Approvals.
24.12
ISPS Code
Without limiting paragraph (a) of Clause 24.11 (
Compliance with laws etc.
), each Borrower shall:
(a)
procure that the Ship owned by it and the company responsible for that Ship's compliance with
the ISPS Code comply with the ISPS Code;
(b)
maintain an ISSC for that Ship; and
(c)
notify the Lender immediately in writing of any actual or threatened withdrawal, suspension,
cancellation or modification of the ISSC.
24.13
Sanctions
(a)
Each Borrower undertakes that it will prevent the Ships from being used, directly or indirectly:
(i)
by, or for the benefit of, any Prohibited Person or in trading to or from a Sanctioned
Country;
(ii)
in any trade which could expose a Ship, the Lender, any Approved Manager, a Ship's crew
or a Ship's insurers to enforcement proceedings arising from Sanctions or any other
consequences whatsoever arising from Sanctions; and/or
(iii)
in any trade which would trigger the operation of any sanctions limitation or exclusion
clause (or similar) in the Insurances, irrespective of whether a Ship is subject to a bareboat
charterparty.
(b)
Each Borrower shall procure that each charterparty in respect of its Ship shall include standard
clauses on "Sanctions and Designated Entities" included in BIMCO's standard documentation or
any equivalent language.
24.14
Illegal trading and trading in war zones or excluded areas
(a)
No Borrower shall cause or permit any Ship to enter or trade to any zone which is declared a war
zone by any government or by that Ship's war risks insurers or which is otherwise excluded from
the scope of coverage of the obligatory insurances unless:
(i)
the prior written consent of the Lender has been given; and
(ii)
that Borrower has (at its expense) effected any special, additional or modified insurance
cover which the Lender may require.
(b)
No Borrower shall cause or permit its Ship to enter or trade in any manner contrary to law or in
any area which is not covered by that Ship's Insurances.
24.15
Provision of information
Without prejudice to Clause 20.6 (
Information: miscellaneous
) each Borrower shall, in respect of
the Ship owned by it, promptly provide the Lender with any information which it requests
regarding:
(a)
that Ship, its employment, position and engagements;
(b)
the Earnings and payments and amounts due to its master and crew;
(c)
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance
or repair of that Ship and any payments made by it in respect of that Ship;
(d)
any towages and salvages; and
(e)
its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM
Code and the ISPS Code,
and, upon the Lender's request, promptly provide copies of any current Charter relating to that
Ship, of any current guarantee of any such Charter, the Ship's Safety Management Certificate and
any relevant Document of Compliance.
24.16
Notification of certain events
Each Borrower shall, in respect of the Ship owned by it, immediately notify the Lender by email,
confirmed forthwith by letter, of:
(a)
any casualty to that Ship which is or is likely to be or to become a Major Casualty;
(b)
any occurrence as a result of which that Ship has become or is, by the passing of time or otherwise,
likely to become a Total Loss;
(c)
any requisition of that Ship for hire;
(d)
any requirement or recommendation made in relation to that Ship by any insurer or classification
society or by any competent authority which is not immediately complied with;
(e)
any arrest or detention of that Ship or any exercise or purported exercise of any lien on that Ship
or the Earnings;
(f)
any intended dry docking of that Ship;
(g)
any Environmental Claim made against that Borrower or in connection with that Ship, or any
Environmental Incident;
(h)
any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an
Approved Manager or otherwise in connection with that Ship;
(i)
any other matter, event or incident, actual or threatened, the effect of which will or could lead to
the ISM Code or the ISPS Code not being complied with,
(j)
any notice, or such Borrower becoming aware, of any claim, action, suit, proceeding or
investigation against any Transaction Obligor, any of its Subsidiaries or any of their respective
directors, officers, employees or agents with respect to Sanctions; or
(k)
any circumstances which could give rise to a breach of any representation or undertaking in this
Agreement, or any Event of Default, relating to Sanctions,
and each Borrower shall keep the Lender advised in writing on a regular basis and in such detail as
the Lender shall require as to that Borrower's, any such Approved Manager's or any other person's
response to any of those events or matters.
24.17
Restrictions on chartering, appointment of managers etc.
No Borrower shall, in relation to the Ship owned by it:
(a)
let that Ship on demise charter or bareboat charter for any period;
(b)
enter into any time, voyage or consecutive voyage charter in respect of that Ship (other than a
Permitted Charter) or "charter-in" any vessel;
(c)
amend, supplement or terminate a Management Agreement;
(d)
appoint a manager of that Ship other than its Approved Commercial Manager and its Approved
Technical Manager or agree to any alteration to the terms of an Approved Manager's
appointment;
(e)
de activate or lay up (either cold, lukewarm or warm) that Ship; or
(f)
put that Ship into the possession of any person for the purpose of work being done upon it in an
amount exceeding or likely to exceed $1,000,000 (or the equivalent in any other currency) unless
that person has first given to the Lender and in terms satisfactory to it a written undertaking not
to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason.
24.18
Notice of Mortgage
Each Borrower shall keep the relevant Mortgage registered against the Ship owned by it as a valid
first priority or, as the case may be, preferred mortgage, carry on board that Ship a certified copy
of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room
and the master's cabin of that Ship a framed printed notice stating that that Ship is mortgaged by
that Borrower to the Lender.
24.19
Sharing of Earnings
No Borrower shall enter into any agreement or arrangement for the sharing of any Earnings
provided that if a Borrower enters into pool arrangements (with the Lender's prior consent), it will
provide the Lender with (a) a copy of the relevant pool agreement and on-hire certificate and (b)
an original subordination undertaking executed by the relevant pool manager in such form as the
Lender may require (together with evidence of authority of such pool manager).
24.20
Poseidon Principles
Each Borrower shall, upon the request of the Lender and at the cost of the Borrowers on or before
31st July in each calendar year, supply or procure the supply to the Lender of all information
necessary in order for the Lender to comply with its obligations under the Poseidon Principles in
respect of the preceding year, including, without limitation, all ship fuel oil consumption data
required to be collected and reported in accordance with Regulation 22A of Annex VI and any
Statement of Compliance, in each case relating to the Ship owned by it for the preceding calendar
year provided always that, for the avoidance of doubt, such information shall be "Confidential
Information" for the purposes of Clause 42 (
Confidential Information
) but the Borrowers
acknowledge that, in accordance with the Poseidon Principles, such information will form part of
the information published regarding the Lender's portfolio climate alignment.
24.21
Inventory of Hazardous Materials
Each Borrower shall maintain a valid and up to date Inventory of Hazardous Materials in respect
of the Ship owned by it.
24.22
Charterparty Assignment
If any Borrower enters into an Assignable Charter, that Borrower shall execute in favour of the
Lender a Charterparty Assignment in respect of that Assignable Charter and shall:
(a)
serve notice of that Charterparty Assignment on the relevant charterer and procure that that
charterer acknowledges such notice in such form as the Lender may approve or require; and
(b)
deliver to the Lender such other documents equivalent to those referred to at paragraphs 1.2, 1.3,
1.4, 1.5, 2.3, 4.1, 6.2 and 6.3 of Part A of Schedule 2 (
Conditions Precedent
) as the Lender may
require.
24.23
Sustainable and socially responsible dismantling of a Ship
(a)
Each Borrower shall institute and maintain policies and procedures to ensure that its Ship or, as
the case may be, any other vessel previously financed by the Lender shall be dismantled, scrapped
or, as the case may be, recycled as follows:
(i)
in the case of it being EU flagged and to the extent applicable to its Ship or, as the case
may be, the relevant vessel, be recycled at an approved yard under the EU Ship Recycling
Regulation; and
(ii)
in the case of it being non-EU flagged and to the extent applicable to its Ship or, as the
case may be, the relevant vessel, be recycled at a yard certified (by a classification society
acceptable to the Lender and which is a member of IACS) to operate under The Hong Kong
International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009
and/or the EU Ship Recycling Regulation,
Provided that
scrapping or recycling, owned by any member of the Group or any intermediary to which the
ownership has been transferred for the purposes of dismantling, scrapping or recycling.
(b)
Each Borrower shall institute and maintain safe, sustainable, socially and environmentally
responsible policies and procedures with respect to dismantling of its Ship.
24.24
Notification of compliance
Each Borrower shall promptly provide the Lender from time to time with evidence (in such form
as the Lender requires) that it is complying with this Clause 24 (
General Ship Undertakings
).
25
SECURITY COVER
25.1
Minimum required security cover
Clause 25.2 (
Provision of additional security; prepayment
) applies if the Lender notifies the
Borrowers that the Security Cover Ratio is below 125 per cent.
25.2
Provision of additional security; prepayment
(a)
If the Lender serves a notice on the Borrowers under Clause 25.1 (
Minimum required security
cover
), the Borrowers shall, on or before the date falling 45 days after the date on which the
Lender's notice is served (the "
Prepayment Date
"), prepay such part of the Loan as shall eliminate
the shortfall.
(b)
A Borrower may, instead of making a prepayment as described in paragraph (a) above, provide, or
ensure that a third party has provided, additional security which, in the opinion of the Lender:
(i)
has a net realisable value at least equal to the shortfall; and
(ii)
is documented in such terms as the Lender may approve or require,
before the Prepayment Date; and conditional upon such security being provided in such manner,
it shall satisfy such prepayment obligation.
25.3
Value of additional vessel security
The net realisable value of any additional security which is provided under Clause 25.2 (
Provision
of additional security; prepayment
) which constitutes a first preferred or first priority mortgage
over a vessel shall be the Market Value of the vessel concerned.
25.4
Valuations binding
Any valuation under this Clause 25 (
Security Cover
) shall be binding and conclusive as regards each
Borrower.
25.5
Provision of information
(a)
Each Borrower shall promptly provide the Lender and any shipbroker acting under this Clause 25
(
Security Cover
) with any information which the Lender or the shipbroker may request for the
purposes of the valuation.
(b)
If a Borrower fails to provide the information referred to in paragraph (a) above by the date
specified in the request, the valuation may be made on any basis and assumptions which the
shipbroker or the Lender considers prudent.
25.6
Prepayment mechanism
Any prepayment pursuant to Clause 25.2 (
Provision of additional security; prepayment
) shall be
made in accordance with the relevant provisions of Clause 7 (
Prepayment and Cancellation
) and
shall be applied pro rata towards prepayment of all Tranches and within each Tranche it will reduce
pro rata each Repayment Instalment falling after that prepayment and, if applicable, the Balloon
Instalment under that Tranche.
25.7
Provision of valuations
(a)
The Borrowers shall provide the Lender with two valuations of each Ship and any other vessel over
which additional Security has been created in accordance with Clause 25.2 (
Provision of additional
security; prepayment
), to enable the Lender to determine the Market Value of that Ship or any
other vessel.
(b)
The valuations referred to in this Clause 25.7 (
Provision of valuations
) are to be obtained:
(i)
not more than 30 days prior to each Utilisation Date as required pursuant to paragraph
6.1 of Part A of Schedule 2 (
Conditions Precedent
);
(ii)
on two occasions in each year, on 30 June and 31 December
Provided that
the Market Value of the Ships which will be tested in the second quarter in each Financial
Year, the Market Value shall be determined based on one valuation; and
(iii)
subject to paragraph (c) below, at any other time as the Lender shall deem necessary.
(c)
The valuations referred to in paragraph (b) of this Clause 25.7 (
Provision of valuations
) shall be at
the Borrowers' cost, but, in relation to the valuations referred to in paragraph (b)(iii) above, at the
Lender's cost, unless:
(i)
an Event of Default has occurred and is continuing; or
(ii)
the Borrowers are required to prepay the Loan or any part thereof pursuant to Clause 7.5
(
Mandatory prepayment on sale or Total Loss
); or
(iii)
the minimum Security Cover Ratio required pursuant to Clause 25.1 (
Minimum required
security cover
) is not maintained,
in which case any additional valuations will be at the Borrowers' cost.
(d)
For the sake of clarity, the Lender may test compliance with Clause 25.1 (
Minimum required
security cover
) at any time. The frequency of such testing shall neither be limited to the delivery
of a Compliance Certificate nor the delivery of valuations of the Market Value pursuant to
paragraph (a) above.
26
EARNINGS ACCOUNTS AND APPLICATION OF EARNINGS
26.1
Earnings Accounts
No Borrower may, without the prior consent of the Lender, maintain any bank account other than
its Earnings Account and the balance of such Earnings Account shall, unless a Default has occurred,
be freely available to the relevant Borrower.
26.2
Payment of Earnings
Each Borrower shall ensure that, subject only to the provisions of the General Assignment to which
it is a party, all the Earnings in respect of the Ship owned by it are paid in to its Earnings Account.
26.3
Location of Earnings Accounts
Each Borrower shall promptly:
(a)
comply with any requirement of the Lender as to the location or relocation of its Earnings Account;
(b)
execute any documents which the Lender specifies to create or maintain in favour of the Lender
Security over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings
Accounts; and
(c)
ensure that Account Bank shall have no right of set-off in relation to the Earnings Accounts.
27
EVENTS OF DEFAULT
27.1
General
Each of the events or circumstances set out in this Clause 27 (
Events of Default
) is an Event of
Default except for Clause 27.21 (
Acceleration
) and Clause 27.22 (
Enforcement of security
).
27.2
Non-payment
A Transaction Obligor does not pay on the due date any amount payable pursuant to a Finance
Document at the place at and in the currency in which it is expressed to be payable unless:
(a)
its failure to pay is caused by:
(i)
administrative or technical error; or
(ii)
a Disruption Event; and
(b)
payment is made within three Business Days of its due date.
27.3
Specific obligations
A breach occurs of Clause 4.4 (
Waiver of conditions precedent
), 4.5 (
Conditions subsequent
),
Clause 19.34 (
Sanctions
), Clause 21 (
Financial Covenants
), Clause 22.10 (
Title
), Clause 22.11
(
Negative pledge
), Clause 22.20 (
Unlawfulness, invalidity and ranking; Security imperilled
), Clause
22.21 (
Sanctions undertakings
), Clause 23.2 (
Maintenance of obligatory insurances
), Clause 23.3
(
Terms of obligatory insurances
), Clause 23.5 (
Renewal of obligatory insurances
), Clause 24.2
(
Ship's name and registration
), Clause 24.3 (
Repair and classification
), Clause 24.11 (
Compliance
with laws etc.
) (insofar as that Clause relates to Sanctions), Clause 24.13 (
Sanctions
), paragraph (d)
of Clause 24.17 (
Restrictions on chartering, appointment of managers, etc
.) or, save to the extent
such breach is a failure to pay and therefore subject to Clause 27.2 (
Non-payment
), Clause 25
(
Security Cover
).
27.4
Other obligations
(a)
A Transaction Obligor does not comply with any provision of the Finance Documents (other than
those referred to in Clause 27.2 (
Non-payment
) and Clause 27.3 (
Specific obligations
)).
(b)
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of
remedy and is remedied within five Business Days of the Lender giving notice to the Borrowers or
(if earlier) any Transaction Obligor becoming aware of the failure to comply.
27.5
Misrepresentation
Any representation or statement made or deemed to be made by a Transaction Obligor in the
Finance Documents or any other document delivered by or on behalf of any Transaction Obligor
under or in connection with any Finance Document is or proves to have been incorrect or
misleading when made or deemed to be made.
27.6
Cross default
(a)
Any Financial Indebtedness of a Transaction Obligor or any member of the Group is not paid when
due nor within any originally applicable grace period.
(b)
Any Financial Indebtedness of a Transaction Obligor or any member of the Group is declared to be
or otherwise becomes due and payable prior to its specified maturity as a result of an event of
default (however described).
(c)
Any commitment for any Financial Indebtedness of a Transaction Obligor or any member of the
Group is cancelled or suspended by a creditor of a Transaction Obligor or any member of the Group
as a result of an event of default (however described).
(d)
Any creditor of a Transaction Obligor or any member of the Group becomes entitled to declare
any Financial Indebtedness of a Transaction Obligor or any member of the Group due and payable
prior to its specified maturity as a result of an event of default (however described).
(e)
Any of the events described in paragraphs (a) to (d) of this Clause 27.6 (
Cross default
) occurs in
relation to the Financial Indebtedness of a Transaction Obligor or a member of the Group (in any
capacity) under any agreement with the Lender.
(f)
No Event of Default will occur under paragraphs (a) to (d) of this Clause 27.6 (
Cross default
) in
respect of a person if the aggregate amount of the Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above is less than (A) $500,000 in respect
of a Borrower, (B) $10,000,000 in respect of the Parent Guarantor or (C) $1,000,000 in respect of
a Transaction Obligor or
any other member of the Group (or, in each case, its equivalent in any
other currency).
27.7
Insolvency
(a)
A Transaction Obligor or a member of the Group:
(i)
is unable or admits inability to pay its debts as they fall due;
(ii)
is deemed to, or is declared to, be unable to pay its debts under applicable law;
(iii)
suspends or threatens to suspend making payments on any of its debts; or
(iv)
by reason of actual or anticipated financial difficulties, commences negotiations with one
or more of its creditors (excluding the Lender in its capacity as such) with a view to
rescheduling any of its indebtedness.
(b)
The value of the assets of a Transaction Obligor or any member of the Group is less than its
liabilities (taking into account contingent and prospective liabilities).
(c)
A moratorium is declared in respect of any indebtedness of a Transaction Obligor or any member
of the Group. If a moratorium occurs, the ending of the moratorium will not remedy any Event of
Default caused by that moratorium.
27.8
Insolvency proceedings
(a)
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i)
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution,
administration or reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of a Transaction Obligor or any member of the Group;
(ii)
a composition, compromise, assignment or arrangement with any creditor of a
Transaction Obligor or any member of the Group;
(iii)
the appointment of a liquidator, receiver, administrator, administrative receiver,
compulsory manager or other similar officer in respect of a Transaction Obligor or any
member of the Group or any of its assets; or
(iv)
enforcement of any Security over any assets of a Transaction Obligor or any member of
the Group,
or any analogous procedure or step is taken in any jurisdiction.
(b)
Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and
is discharged, stayed or dismissed within 14 days of commencement.
27.9
Creditors' process
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in
any jurisdiction) affects any asset or assets of a Transaction Obligor or a member of the Group
(other than an arrest or detention of a Ship referred to in Clause 27.14 (
Arrest
)).
27.10
Ownership of the Borrowers
A Borrower is not or ceases to be a wholly-owned Subsidiary of the Parent Guarantor.
27.11
Unlawfulness, invalidity and ranking
(a)
It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the
Finance Documents.
(b)
Any obligation of a Transaction Obligor under the Finance Documents is not or ceases to be legal,
valid, binding or enforceable.
(c)
Any Finance Document ceases to be in full force and effect or to be continuing or is or purports to
be determined or any Transaction Security is alleged by a party to it (other than the Lender) to be
ineffective.
(d)
Any Transaction Security proves to have ranked after, or loses its priority to, any other Security.
27.12
Security imperilled
Any Security created or intended to be created by a Finance Document is in any way imperilled or
in jeopardy.
27.13
Cessation of business
Any Transaction Obligor or any member of the Group suspends or ceases to carry on (or threatens
to suspend or cease to carry on) all or a material part of its business and in the case of a member
of the Group other than a Transaction Obligor such cessation is reasonably likely to have a Material
Adverse Effect.
27.14
Arrest
Any arrest of a Ship or its detention in the exercise or the purported exercise of any lien or claim
unless it is redelivered to the full control of the relevant Borrower within 30 days of such arrest or
detention.
27.15
Expropriation
The authority or ability of any member of the Group to conduct its business is limited or wholly or
substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or
other action by or on behalf of any governmental, regulatory or other authority or other person in
relation to any member of the Group or any of its assets other than:
(a)
an arrest or detention of a Ship referred to in Clause 27.14 (
Arrest
); or
(b)
any Requisition.
27.16
Repudiation and rescission of agreements
A Transaction Obligor (or any other relevant party) rescinds or purports to rescind or repudiates
or purports to repudiate a Transaction Document or any of the Transaction Security or evidences
an intention to rescind or repudiate a Transaction Document or any Transaction Security or a
Transaction Document or any of the Transaction Security otherwise ceases to remain in full force
and effect for any reason.
27.17
Litigation
Any litigation, arbitration or administrative proceedings or investigations of, or before, any court,
arbitral body or agency are started or threatened , or any judgment or order of a court, arbitral
body or agency is made, in relation to any of the Transaction Documents or the transactions
contemplated in any of the Transaction Documents or against any member of the Group or its
assets which has or is reasonably likely to have a Material Adverse Effect.
27.18
Material adverse change
Any event or circumstance occurs which has or is reasonably likely to have a Material Adverse
Effect.
27.19
Audit qualification
The Parent Guarantor's auditors qualify their report on any audited annual consolidated financial
statements of the Parent Guarantor.
27.20
Constitutional documents
An Obligor has materially amended its constitutional documents and such amendment has a
negative effect on the Lender's rights under the Finance Documents.
27.21
Acceleration
On and at any time after the occurrence of an Event of Default the Lender may by notice to the
Borrowers:
(a)
cancel the Commitment, whereupon it shall immediately be cancelled;
(b)
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued
or outstanding under the Finance Documents be immediately due and payable, whereupon it shall
become immediately due and payable; and/or
(c)
declare that all or part of the Loan be payable on demand, whereupon it shall immediately become
payable on demand by the Lender,
and the Lender may serve notices under paragraphs (a), (b) and (c) above simultaneously or on
different dates and the Lender may take any action referred to in Clause 27.22 (
Enforcement of
security
) if no such notice is served or simultaneously with or at any time after the service of any
of such notice.
27.22
Enforcement of security
On and at any time after the occurrence of an Event of Default the Lender may take any action
which, as a result of the Event of Default or any notice served under Clause 27.21 (
Acceleration
),
the Lender is entitled to take under any Finance Document or any applicable law or regulation.
SECTION 9
THE LENDER AND THE OBLIGORS
28
CHANGES TO THE LENDER
28.1
Assignment by the Lender
Subject to this Clause 28 (
Changes to the Lender
), the Lender (the "
Existing Lender
") may assign
all (but not part) of its rights under the Finance Documents to another bank or financial institution
or to a trust, fund or other entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial assets (the "
New Lender
").
28.2
Conditions of assignment
(a)
The consent of the Borrowers is required for an assignment by the Existing Lender, unless the
assignment is:
(i)
to an Affiliate of the Existing Lender;
(ii)
if the Existing Lender is a fund, to a fund which is a Related Fund; or
(iii)
made following the occurrence of an Event of Default.
(b)
The consent of the Borrowers to an assignment must not be unreasonably withheld or delayed.
Each Borrower will be deemed to have given its consent 10 Business Days after the Existing Lender
has requested it unless consent is expressly refused by that Borrower within that time.
(c)
The consent of a Borrower to an assignment must not be withheld solely because the assignment
may result in an increase to any amount payable under Clause 14.3 (
Mandatory Cost
).
(d)
If:
(i)
the Existing Lender assigns any of its rights or obligations under the Finance Documents or
changes its Facility Office; and
(ii)
as a result of circumstances existing at the date the assignment or change occurs, a
Transaction Obligor would be obliged to make a payment to the New Lender or the Existing
Lender acting through its new Facility Office under Clause 12 (
Tax Gross Up and
Indemnities
) or under that Clause as incorporated by reference or in full in any other
Finance Document or Clause 13 (
Increased Costs
),
then the New Lender or the Existing Lender acting through its new Facility Office is only entitled
to receive payment under those Clauses to the same extent as the Existing Lender would have
been if the assignment or change had not occurred.
(e)
Each Obligor on behalf of itself and each Transaction Obligor agrees that all rights and interests
(present, future or contingent) which the Existing Lender has under or by virtue of the Finance
Documents are assigned to the New Lender absolutely, free of any defects in the Existing Lender's
title and of any rights or equities which any Borrower or any other Transaction Obligor had against
the Existing Lender.
released from further obligations towards one another under the Finance Documents and their
respective rights against one another under the Finance Documents (other than any indemnity
rights of the Lender which are intended to survive) shall be cancelled.
28.3
Security over Lender's rights
In addition to the other rights provided to the Lender under this Clause 28 (
Changes to the Lender
),
the Lender may without consulting with or obtaining consent from any Transaction Obligor, at any
time charge, assign or otherwise create Security in or over (whether by way of collateral or
otherwise) all or any of its rights under any Finance Document to secure obligations of the Lender
including, without limitation:
(a)
any charge, assignment or other Security to secure obligations to a federal reserve or central bank;
and
(b)
if the Lender is a fund, any charge, assignment or other Security granted to any holders (or trustee
or representatives of holders) of obligations owed, or securities issued, by the Lender as security
for those obligations or securities,
except that no such charge, assignment or Security shall:
(i)
release the Lender from any of its obligations under the Finance Documents or substitute
the beneficiary of the relevant charge, assignment or Security for the Lender as a party to
any of the Finance Documents; or
(ii)
require any payments to be made by a Transaction Obligor other than or in excess of, or
grant to any person any more extensive rights than, those required to be made or granted
to the Lender under the Finance Documents.
29
CHANGES TO THE TRANSACTION OBLIGORS
29.1
Assignment or transfer by Transaction Obligors
No Transaction Obligor may assign any of its rights or transfer any of its rights or obligations under
the Finance Documents.
29.2
Additional Subordinated Creditors
(a)
The Borrowers may request that any person becomes a Subordinated Creditor, with the prior
approval of the Lender, by delivering to the Lender:
(i)
a duly executed Subordination Agreement;
(ii)
a duly executed Subordinated Debt Security; and
(iii)
such constitutional documents, corporate authorisations and other documents and
matters as the Lender may reasonably require, in form and substance satisfactory to the
Lender, to verify that the person's obligations are legally binding, valid and enforceable
and to satisfy any applicable legal and regulatory requirements.
(b)
A person referred to in paragraph (a) above will become a Subordinated Creditor on the date the
Lender enters into the Subordination Agreement and the Subordinated Debt Security delivered
under paragraph (a) above.
SECTION 10
ADMINISTRATION
30
PAYMENT MECHANICS
30.1
Payments to the Lender
(a)
On each date on which a Transaction Obligor is required to make a payment under a Finance
Document, that Transaction Obligor shall make an amount equal to such payment available to the
Lender (unless a contrary indication appears in a Finance Document) for value on the due date at
the time and in such funds specified by the Lender as being customary at the time for settlement
of transactions in the relevant currency in the place of payment.
(b)
Payment shall be made to such account in the principal financial centre of the country of that
currency (or, in relation to euro, in a principal financial centre in such Participating Member State
or London, as specified by the Lender) and with such bank as the Lender, in each case, specifies.
30.2
Application of receipts; partial payments
(a)
If the Lender receives a payment that is insufficient to discharge all the amounts then due and
payable by a Transaction Obligor under the Finance Documents, the Lender may apply that
payment towards the obligations of that Transaction Obligor under the Finance Documents in any
manner it may decide.
(b)
Paragraph (a) above will override any appropriation made by a Transaction Obligor.
30.3
No set-off by Transaction Obligors
All payments to be made by a Transaction Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
30.4
Business Days
(a)
Any payment under the Finance Documents which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b)
During any extension of the due date for payment of any principal or an Unpaid Sum under this
Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original
due date.
30.5
Currency of account
(a)
Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any
sum due from a Transaction Obligor under any Finance Document.
(b)
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the
costs, expenses or Taxes are incurred.
(c)
Any amount expressed to be payable in a currency other than dollars shall be paid in that other
currency.
30.6
Change of currency
(a)
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same
time recognised by the central bank of any country as the lawful currency of that country, then:
(i)
any reference in the Finance Documents to, and any obligations arising under the Finance
Documents in, the currency of that country shall be translated into, or paid in, the currency
or currency unit of that country designated by the Lender (after consultation with the
Parent Guarantor on behalf of the Borrowers); and
(ii)
any translation from one currency or currency unit to another shall be at the official rate
of exchange recognised by the central bank for the conversion of that currency or currency
unit into the other, rounded up or down by the Lender (acting reasonably).
(b)
If a change in any currency of a country occurs, this Agreement will, to the extent the Lender
(acting reasonably and after consultation with the Parent Guarantor on behalf of the Borrowers)
specifies to be necessary, be amended to comply with any generally accepted conventions and
market practice in the Relevant Market and otherwise to reflect the change in currency.
30.7
Currency conversion
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of
the amount of the due currency purchased after deducting the costs of conversion.
30.8
Disruption to Payment Systems etc.
If either the Lender determines (in its discretion) that a Disruption Event has occurred or the
Lender is notified by a Borrower that a Disruption Event has occurred:
(a)
the Lender may, and shall if requested to do so by a Borrower, consult with the Parent Guarantor
on behalf of the Borrowers with a view to agreeing with the Parent Gurantor such changes to the
operation or administration of the Facility as the Lender may deem necessary in the circumstances;
(b)
the Lender shall not be obliged to consult with the Parent Guarantor in relation to any changes
mentioned in paragraph (a) above if, in its opinion, it is not practicable to do so in the
circumstances and, in any event, shall have no obligation to agree to such changes;
(c)
any such changes agreed upon by the Lender and the Parent Guarantor shall (whether or not it is
finally determined that a Disruption Event has occurred) be binding upon the Parties and any
Transaction Obligors as an amendment to (or, as the case may be, waiver of) the terms of the
Finance Documents;
(d)
the Lender shall not be liable for any damages, costs or losses to any person, any diminution in
value or any liability whatsoever (including, without limitation for negligence, gross negligence or
any other category of liability whatsoever but not including any claim based on the fraud of the
Lender) arising as a result of its taking, or failing to take, any actions pursuant to or in connection
with this Clause 30.8 (
Disruption to Payment Systems etc.
).
31
SET-OFF
The Lender may set off any matured obligation due from a Transaction Obligor under the Finance
Documents (to the extent beneficially owned by the Lender) against any matured obligation owed
by the Lender to that Transactio n Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different currencies, the Lender may convert
either obligation at a market rate of exchange in its usual course of business for the purpose of
the set-off.
32
CONDUCT OF BUSINESS BY THE LENDER
No provision of this Agreement will:
(a)
interfere with the right of the Lender to arrange its affairs (tax or otherwise) in whatever manner
it thinks fit;
(b)
oblige the Lender to investigate or claim any credit, relief, remission or repayment available to it
or the extent, order and manner of any claim; or
(c)
oblige the Lender to disclose any information relating to its affairs (tax or otherwise) or any
computations in respect of Tax.
33
BAIL-IN
Notwithstanding any other term of any Finance Document or any other agreement, arrangement
or understanding between the parties to a Finance Document, each Party acknowledges and
accepts that any liability of any party to a Finance Document under or in connection with the
Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and
acknowledges and accepts to be bound by the effect of:
(a)
any Bail-In Action in relation to any such liability, including (without limitation):
(i)
a reduction, in full or in part, in the principal amount, or outstanding amount due
(including any accrued but unpaid interest) in respect of any such liability;
(ii)
a conversion of all, or part of, any such liability into shares or other instruments of
ownership that may be issued to, or conferred on, it; and
(iii)
a cancellation of any such liability; and
(b)
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-
In Action in relation to any such liability.
34
NOTICES
34.1
Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made
in writing and, unless otherwise stated, may be made by fax or letter.
34.2
Addresses
The address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of each Party for any communication or document to be made or
delivered under or in connection with the Finance Documents are:
(a)
in the case of the Borrowers, that specified in Schedule 1 (
The Parties
); and
(b)
in the case of any other Obligor or the Lender, that specified in Schedule 1 (
The Parties
) or, if it
becomes a Party after the date of this Agreement, that notified in writing to the Lender on or
before the date on which it becomes a Party;
or any substitute address, fax number or department or officer as an Obligor may notify to the
Lender (or the Lender may notify to the other Parties, if a change is made by the Lender) by not
less than five Business Days' notice.
34.3
Delivery
(a)
Any communication or document made or delivered by one person to another under or in
connection with the Finance Documents will only be effective:
(i)
if by way of fax, when received in legible form; or
(ii)
if by way of letter, when it has been left at the relevant address or five Business Days after
being deposited in the post postage prepaid in an envelope addressed to it at that address,
and, if a particular department or officer is specified as part of its address details provided under
Clause 34.2 (
Addresses
), if addressed to that department or officer.
(b)
Any communication or document to be made or delivered to the Lender will be effective only
when actually received by it and then only if it is expressly marked for the attention of the
department or officer of the Lender specified in Schedule 1 (
The Parties
) (or any substitute
department or officer as the Lender shall specify for this purpose).
(c)
Any communication or document made or delivered to the Borrowers in accordance with this
Clause will be deemed to have been made or delivered to each of the Transaction Obligors.
(d)
Any communication or document which becomes effective, in accordance with paragraphs (a) to
(c) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the
following day.
34.4
Electronic communication
(a)
Any communication to be made or document to be delivered by one Party to another under or in
connection with the Finance Documents may be made or delivered by electronic mail or other
electronic means (including, without limitation, by way of posting to a secure website) if those two
Parties:
(i)
notify each other in writing of their electronic mail address and/or any other information
required to enable the transmission of information by that means; and
(ii)
notify each other of any change to their address or any other such information supplied
by them by not less than five Business Days' notice.
(b)
Any such electronic communication or delivery as specified in paragraph (a) above to be made
between an Obligor and the Lender may only be made in that way to the extent that those two
Parties agree that, unless and until notified to the contrary, this is to be an accepted from of
communication or delivery.
(c)
Any such electronic communication or document as specified in paragraph (a) above made or
delivered by one Party to another will be effective only when actually received (or made available)
in readable form and in the case of any electronic communication or document made or delivered
by a Party to the Lender only if it is addressed in such a manner as the Lender shall specify for this
purpose.
(d)
Any electronic communication or document which becomes effective, in accordance with
paragraph (c) above, after 5.00 p.m. in the place in which the Party to whom the relevant
communication or document is sent or made available has its address for the purpose of this
Agreement shall be deemed only to become effective on the following day.
(e)
Any reference in a Finance Document to a communication being sent or received or a document
being delivered shall be construed to include that communication or document being made
available in accordance with this Clause 34.4 (
Electronic communication
).
34.5
English language
(a)
Any notice given under or in connection with any Finance Document must be in English.
(b)
All other documents provided under or in connection with any Finance Document must be:
(i)
in English; or
(ii)
if not in English, and if so required by the Lender, accompanied by a certified English
translation prepared by a translator approved by the Lender and, in this case, the English
translation will prevail unless the document is a constitutional, statutory or other official
document.
35
CALCULATIONS AND CERTIFICATES
35.1
Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance
Document, the entries made in the accounts maintained by the Lender are
prima facie
of the matters to which they relate.
35.2
Certificates and determinations
Any certification or determination by the Lender of a rate or amount under any Finance Document
is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
35.3
Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from day to day
and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in
any case where the practice in the Relevant Market differs, in accordance with that market
practice.
36
PARTIAL INVALIDITY
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable
in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions under the law of that jurisdiction nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be affected
or impaired.
37
REMEDIES AND WAIVERS
(a)
No failure to exercise, nor any delay in exercising, on the part of the Lender or any Receiver or
Delegate, any right or remedy under a Finance Document shall operate as a waiver of any such
right or remedy or constitute an election to affirm any Finance Document. No election to affirm
any Finance Document on the part of the Lender or any Receiver or Delegate shall be effective
unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further
or other exercise or the exercise of any other right or remedy. The rights and remedies provided
in each Finance Document are cumulative and not exclusive of any rights or remedies provided by
law.
(b)
No variation or amendment of a Finance Document shall be valid unless in writing and signed by
the Lender.
38
ENTIRE AGREEMENT
(a)
This Agreement, in conjunction with the other Finance Documents, constitutes the entire
agreement between the Parties and supersedes all previous agreements, understandings and
arrangements between them, whether in writing or oral, in respect of its subject matter.
(b)
Document in reliance on, and shall have no remedies in respect of, any representation or warranty
that is not expressly set out in this Agreement or in any other Finance Document.
39
SETTLEMENT OR DISCHARGE CONDITIONAL
Any settlement or discharge under any Finance Document between the Lender and any
Transaction Obligor shall be conditional upon no security or payment to the Lender by any
Transaction Obligor or any other person being set aside, adjusted or ordered to be repaid, whether
under any insolvency law or otherwise.
40
IRREVOCABLE PAYMENT
If the Lender considers that an amount paid or discharged by, or on behalf of, a Transaction Obligor
or by any other person in purported payment or discharge of an obligation of that Transaction
Obligor to the Lender under the Finance Documents is capable of being avoided or otherwise set
aside on the liquidation or administration of that Transaction Obligor or otherwise, then that
amount shall not be considered to have been unconditionally and irrevocably paid or discharged
for the purposes of the Finance Documents.
41
AMENDMENTS
41.1
Obligor Intent
Without prejudice to the generality of Clauses 1.2 (
Construction
), 17.4 (
Waiver of defences
) and
18.2 (
Waiver of defences
), each Obligor expressly confirms that it intends that any guarantee
contained in this Agreement or any other Finance Document and any Security created by any
Finance Document shall extend from time to time to any (however fundamental) variation,
increase, extension or addition of or to any of the Finance Documents and/or any facility or
amount made available under any of the Finance Documents for the purposes of or in connection
with any of the following: business acquisitions of any nature; increasing working capital; enabling
investor distributions to be made; carrying out restructurings; refinancing existing facilities;
refinancing any other indebtedness; making facilities available to new borrowers; any other
variation or extension of the purposes for which any such facility or amount might be made
available from time to time; and any fees, costs and/or expenses associated with any of the
foregoing.
42
CONFIDENTIAL INFORMATION
42.1
Confidentiality
The Lender agrees to keep all Confidential Information confidential and not to disclose it to
anyone, save to the extent permitted by Clause 42.2 (
Disclosure of Confidential Information
) and
to ensure that all Confidential Information is protected with security measures and a degree of
care that would apply to its own confidential information.
42.2
Disclosure of Confidential Information
The Lender may disclose:
(a)
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees,
professional advisers, auditors, insurers, insurance advisors, insurance brokers, partners and
Representatives such Confidential Information as the Lender shall consider appropriate if any
person to whom the Confidential Information is to be given pursuant to this paragraph (a) is
informed in writing of its confidential nature and that some or all of such Confidential Information
may be price-sensitive information except that there shall be no such requirement to so inform if
the recipient is subject to professional obligations to maintain the confidentiality of the
information or is otherwise bound by requirements of confidentiality in relation to the Confidential
Information;
(b)
to any person:
(i)
to (or through) whom it assigns (or may potentially assign) all or any of its rights and/or
obligations under one or more Finance Documents and, in each case, to any of that
person's Affiliates, Related Funds, Representatives and professional advisers;
(ii)
with (or through) whom it enters into (or may potentially enter into), whether directly or
indirectly, any sub-participation in relation to, or any other transaction under which
payments are to be made or may be made by reference to, one or more Finance
Documents and/or one or more Transaction Obligors and to any of that person's Affiliates,
Related Funds, Representatives and professional advisers;
(iii)
appointed by the Lender or by a person to whom sub-paragraph (i) or (ii) of paragraph (b)
above applies to receive communications, notices, information or documents delivered
pursuant to the Finance Documents on its behalf;
(iv)
who invests in or otherwise finances (or may potentially invest in or otherwise finance),
directly or indirectly, any transaction referred to in sub-paragraph (i) or (ii) of paragraph
(b) above;
(v)
to whom information is required or requested to be disclosed by any court of competent
jurisdiction or any governmental, banking, taxation or other regulatory authority or similar
body, the rules of any relevant stock exchange or pursuant to any applicable law or
regulation;
(vi)
to whom information is required to be disclosed in connection with, and for the purposes
of, any litigation, arbitrations, administrative or other investigations, proceedings or
disputes;
(vii)
to whom or for whose benefit the Lender charges, assigns or otherwise creates Security
(or may do so) pursuant to Clause 28.3 (
Security over Lender's rights
);
(viii)
which is a classification society or other entity which the Lender has engaged to make the
calculations necessary to enable the Lender to comply with its reporting obligations under
the Poseidon Principles;
(ix)
who is a Party, a member of the Group or any related entity of a Transaction Obligor;
(x)
as a result of the registration of any Finance Document as contemplated by any Finance
Document or any legal opinion obtained in connection with any Finance Document; or
(xi)
with the consent of the Parent Guarantor;
in each case, such Confidential Information as the Lender shall consider appropriate if:
(A)
in relation to sub-paragraphs (i), (ii) and (iii) of paragraph (b) above, the person to
whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking except that there shall be no requirement for a
Confidentiality Undertaking if the recipient is a professional adviser and is subject
to professional obligations to maintain the confidentiality of the Confidential
Information;
(B)
in relation to sub-paragraphs (iv) and (viii) of paragraph (b) above, the person to
whom the Confidential Information is to be given has entered into a
Confidentiality Undertaking or is otherwise bound by requirements of
confidentiality in relation to the Confidential Information they receive and is
informed that some or all of such Confidential Information may be price-sensitive
information;
(C)
in relation to sub-paragraphs (v), (vi) and (vii) of paragraph (b) above, the person
to whom the Confidential Information is to be given is informed of its confidential
nature and that some or all of such Confidential Information may be price-
sensitive information except that there shall be no requirement to so inform if, in
the opinion of the Lender, it is not practicable so to do in the circumstances;
(c)
to any person appointed by the Lender or by a person to whom sub-paragraph (i) or (ii) of
paragraph (b) above applies to provide administration or settlement services in respect of one or
more of the Finance Documents including without limitation, in relation to the trading of
participations in respect of the Finance Documents, such Confidential Information as may be
required to be disclosed to enable such service provider to provide any of the services referred to
in this paragraph (c) if the service provider to whom the Confidential Information is to be given
has entered in to a confidentiality agreement substantially in the form of the LMA Master
Confidentiality Undertaking for Use With Administration/Settlement Service Providers or such
other form of confidentiality undertaking agreed between the Borrowers and the Lender;
(d)
to any rating agency (including its professional advisers) such Confidential Information as may be
required to be disclosed to enable such rating agency to carry out its normal rating activities in
relation to the Finance Documents and/or the Transaction Obligors.
42.3
DAC6
Nothing in any Finance Document shall prevent disclosure of any Confidential Information or other
matter to the extent that preventing that disclosure would otherwise cause any transaction
contemplated by the Finance Documents or any transaction carried out in connection with any
transaction contemplated by the Finance Documents to become an arrangement described in Part
II A 1 of Annex IV of Directive 2011/16/EU.
42.4
Entire agreement
This Clause 42 (
Confidential Information
) constitutes the entire agreement between the Parties in
relation to the obligations of the Lender under the Finance Documents regarding Confidential
Information and supersedes any previous agreement, whether express or implied, regarding
Confidential Information.
42.5
Inside information
The Lender acknowledges that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be regulated or prohibited
by applicable legislation including securities law relating to insider dealing and market abuse and
the Lender undertakes not to use any Confidential Information for any unlawful purpose.
42.6
Notification of disclosure
The Lender agrees (to the extent permitted by law and regulation) to inform the Borrowers:
(a)
of the circumstances of any disclosure of Confidential Information made pursuant to
sub-paragraph (v) of paragraph (b) of Clause 42.2 (
Disclosure of Confidential Information
) except
where such disclosure is made to any of the persons referred to in that paragraph during the
ordinary course of its supervisory or regulatory function; and
(b)
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 42
(
Confidential Information
).
42.7
Continuing obligations
The obligations in this Clause 42 (
Confidential Information
) are continuing and, in particular, shall
survive and remain binding on the Lender for a period of 12 months from the earlier of:
(a)
the date on which all amounts payable by the Obligors under or in connection with this Agreement
have been paid in full and the Commitment has been cancelled or otherwise ceased to be
available; and
(b)
the date on which the Lender otherwise ceases to be the Lender.
43
CONFIDENTIALITY OF FUNDING RATES
43.1
Confidentiality and disclosure
(a)
Each Obligor agrees to keep each Funding Rate confidential and not to disclose it to anyone, save
to the extent permitted by paragraph (b) below.
(b)
Each Obligor may disclose any Funding Rate, to:
(i)
any of its Affiliates and any of its or their officers, directors, employees, professional
advisers, auditors, partners and Representatives, if any person to whom that Funding Rate
is to be given pursuant to this paragraph (i) is informed in writing of its confidential nature
and that it may be price sensitive information except that there shall be no such
requirement to so inform if the recipient is subject to professional obligations to maintain
the confidentiality of that Funding Rate or is otherwise bound by requirements of
confidentiality in relation to it;
(ii)
any person to whom information is required or requested to be disclosed by any court of
competent jurisdiction or any governmental, banking, taxation or other regulatory
authority or similar body, the rules of any relevant stock exchange or pursuant to any
applicable law or regulation if the person to whom that Funding Rate is to be given is
informed in writing of its confidential nature and that it may be price sensitive information
except that there shall be no requirement to so inform if, in the opinion of the Lender or
the relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
(iii)
any person to whom information is required to be disclosed in connection with, and for
the purposes of, any litigation, arbitration, administrative or other investigations,
proceedings or disputes if the person to whom that Funding Rate is to be given is informed
in writing of its confidential nature and that it may be price sensitive information except
that there shall be no requirement to so inform if, in the opinion of the Lender or the
relevant Obligor, as the case may be, it is not practicable to do so in the circumstances;
and
(iv)
any person with the consent of the Lender.
43.2
Related obligations
(a)
Each Obligor acknowledges that each Funding Rate is or may be price sensitive information and
that its use may be regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and each Obligor undertakes not to use any Funding
Rate for any unlawful purpose.
(b)
Each Obligor agrees (to the extent permitted by law and regulation) to inform the Lender:
(i)
of the circumstances of any disclosure made pursuant to sub-paragraph (ii) of paragraph
(b) of Clause 43.1 (
Confidentiality and disclosure
) except where such disclosure is made to
any of the persons referred to in that paragraph during the ordinary course of its
supervisory or regulatory function; and
(ii)
upon becoming aware that any information has been disclosed in breach of this Clause 43
(
Confidentiality of Funding Rates
).
43.3
No Event of Default
No Event of Default will occur under Clause 27.4 (
Other obligations
) by reason only of an Obligor's
failure to comply with this Clause 43 (
Confidentiality of Funding Rates
).
44
COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of the Finance Document.
SECTION 11
GOVERNING LAW AND ENFORCEMENT
45
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are
governed by English law.
46
ENFORCEMENT
46.1
Jurisdiction
(a)
Unless specifically provided in another Finance Document in relation to that Finance Document,
the courts of England have exclusive jurisdiction to settle any dispute arising out of or in
connection with any Finance Document (including a dispute regarding the existence, validity or
termination of any Finance Document or any non-contractual obligation arising out of or in
connection with any Finance Document) (a "
Dispute
").
(b)
The Obligors accept that the courts of England are the most appropriate and convenient courts to
settle Disputes and accordingly no Obligor will argue to the contrary.
(c)
To the extent allowed by law, this Clause 46.1 (
Jurisdiction
) is for the benefit of the Lender only.
As a result, the Lender shall be not be prevented from taking proceedings relating to a Dispute in
any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent
proceedings in any number of jurisdictions.
46.2
Service of process
(a)
Without prejudice to any other mode of service allowed under any relevant law, each Obligor
(other than an Obligor incorporated in England and Wales):
(i)
irrevocably appoints Hill Dickinson Services (London) Ltd at its registered office for the
time being at The Broadgate Tower, 20 Primrose Street, London EC2A 2EW, United
Kingdom as its agent for service of process in relation to any proceedings before the
English courts in connection with any Finance Document; and
(ii)
agrees that failure by a process agent to notify the relevant Obligor of the process will not
invalidate the proceedings concerned.
(b)
If any person appointed as an agent for service of process is unable for any reason to act as agent
for service of process, the Borrowers (on behalf of all the Obligors) must immediately (and in any
event within three days of such event taking place) appoint another agent on terms acceptable to
the Lender. Failing this, the Lender may appoint another agent for this purpose.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1
THE PARTIES
PART A
THE OBLIGORS
Name of
Borrower
Place of
Incorporation
Registration
number (or
equivalent, if any)
Address for Communication
Majuro Shipping
Company Inc.
Marshall Islands
20080
c/o Approved Manager
350 Syngrou Avenue,
7
th
Kalithea, 17674, Athens, Greece
E-mail: info@dwm.com.cy
Toku Shipping
Company Inc.
Marshall Islands
71580
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Mejato Shipping
Company Inc.
Marshall Islands
85176
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Rakaru Shipping
Company Inc.
Marshall Islands
85177
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Ebadon Shipping
Company Inc.
Marshall Islands
89308
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Pulap Shipping
Company Inc.
Marshall Islands
61194
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Weno Shipping
Company Inc.
Marshall Islands
61192
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Erikub Shipping
Company Inc.
Marshall Islands
53880
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Wotho Shipping
Company Inc.
Marshall Islands
53882
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
Name of Parent
Guarantor
Place of
Incorporation
Registration
number (or
equivalent, if any)
Address for Communication
Diana Shipping
Inc.
Marshall Islands
13671
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens, Greece
E-mail:
corpgov@dianashippingservices.com
PART B
THE ORIGINAL LENDER
Name of Original Lender
Address for Communication
Danish Ship Finance A/S
Sankt Annae Plads 3
DK-1250 Copenhagen K
Denmark
Attn:
Henrik Rohde Søgaard hso@shipfinance.dk
Iben Nordland inj@shipfinance.dk
Loan Administration loanadmin@shipfinance.dk
Fax: +45 3333 9666
SCHEDULE 2
CONDITIONS PRECEDENT
PART A
CONDITIONS PRECEDENT TO UTILISATION REQUEST
1
Obligors
1.1
A copy of the constitutional documents of each Obligor.
1.2
A copy of a resolution of the board of directors of each Obligor (other than the Parent Guarantor)
and a copy of a resolution of the executive committee of the Parent Guarantor:
(a)
evidencing corporate benefit;
(b)
approving the terms of, and the transactions contemplated by, the Finance Documents to which
it is a party and resolving that it execute the Finance Documents to which it is a party;
(c)
authorising a specified person or persons to execute the Finance Documents to which it is a party
on its behalf; and
(d)
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and
notices (including, if relevant, the Utilisation Request) to be signed and/or despatched by it under,
or in connection with, the Finance Documents to which it is a party.
1.3
An original of the power of attorney of any Obligor authorising a specified person or persons to
execute the Finance Documents to which it is a party.
1.4
A specimen of the signature of each person authorised by the resolution referred to in paragraph
1.2 above.
1.5
A copy of a resolution signed by the Parent Guarantor as the holder of the issued shares in each
Borrower, approving the terms of, and the transactions contemplated by, the Finance Documents
to which that Borrower is a party.
1.6
A certificate of each Obligor (signed by a director) confirming that borrowing or guaranteeing, as
appropriate, the Commitment would not cause any borrowing, guaranteeing or similar limit
binding on that Obligor to be exceeded.
1.7
A certificate of each Transaction Obligor that is incorporated outside the UK (signed by a director)
certifying either that (i) it has not delivered particulars of any UK Establishment to the Registrar of
Companies as required under the Overseas Regulations or (ii) it has a UK Establishment and
specifying the name and registered number under which it is registered with the Registrar of
Companies.
1.8
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document
relating to it specified in this Part A of Schedule 2 (
Conditions Precedent
) is a true copy of the
original and it is
correct, complete and in full force and effect as at a date no earlier than the date
of this Agreement.
1.9
A copy of a goodstanding certificate in respect of each Transaction Obligor dated not earlier than
three months from the date of this Agreement.
2
Finance Documents
2.1
If applicable, a duly executed original of the Subordination Agreement and copies of each
Subordinated Finance Document.
2.2
A duly executed original of any Finance Document not otherwise referred to in this Schedule 2
(
Conditions Precedent
).
2.3
A duly executed original of any other document required to be delivered by each Finance
Document if not otherwise referred to this Schedule 2 (
Conditions Precedent
).
3
Security
3.1
A duly executed original of the Account Security in relation to each Earnings Account and of the
Shares Security in respect of each Borrower (and of each document to be delivered under each of
them).
3.2
If applicable, a duly executed original of the Subordinated Debt Security.
4
Legal opinions
4.1
A legal opinion of Watson Farley & Williams, Greece, legal advisers to the Lender in England.
4.2
If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the
legal advisers to the Lender in the relevant jurisdiction.
5
Shareholder's loans
If there are any shareholder loans agreements in respect of any loan from the Parent Guarantor
to a Borrower, copies of such loan agreements together with evidence:
(a)
of corporate benefit; and
(b)
that any relevant financial assistance laws have been complied with.
6
Other documents and evidence
6.1
A valuation of each Ship, addressed to the Lender, stated to be for the purposes of this Agreement
and dated not earlier than 30 days before the Utilisation Date for the Advance under each Tranche
from an Approved Valuer.
6.2
Draft cover notes and certificates of the relevant P&I Club in respect of each Ship evidencing that
each Ship is insured in accordance with the provisions of this Agreement together with draft
letters o
f undertaking by the Approved Brokers in accordance with paragraph (b) of Clause 23.6
(
Copies of policies; letters of undertaking
), in each case in forms acceptable to the Lender.
6.3
Evidence that any process agent referred to in Clause 46.2 (
Service of process
), if not an Obligor,
has accepted its appointment.
6.4
A copy of any other Authorisation or other document, opinion or assurance which the Lender
considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection
with the entry into and performance of the transactions contemplated by any Transaction
Document or for the validity and enforceability of any Transaction Document.
6.5
The Original Financial Statements of the Parent Guarantor.
6.6
The original of any mandates or other documents required in connection with the opening or
operation of the Earnings Accounts.
6.7
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11
(
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the first Utilisation
Date.
6.8
Such documentation and information as the Lender deem necessary and/or advisable to comply
with:
(a)
relevant sanction regulations including the Lender's sanction compliance procedures with a view
to carry out relevant sanctions' screenings; and
(b)
customer due diligence measures for purposes of AML/CTF checks as required by the Danish
Consolidating Act no. 1022 of 13
th
Financing of Terrorism (as amended and supplemented) including, without limitation:
(i)
Ownership and structure: evidence satisfactory to the Lender of the complete ownership
and control structure of the Customers including the ownership stake belonging to
beneficial owners meaning the natural person(s) who ultimately owns or controls through
direct or indirect ownership of more than 20 per cent. of the shares or voting rights in the
Customers (except for beneficial owners in companies listed on a regulated market that is
subject to disclosure requirements consistent with EU law or equivalent international
standards, provided that if only part of such companies shares are listed, the beneficial
owners, if any, of such remaining unlisted shares shall be subject to the disclosure
requirements) or, if no such person(s) are identified or if there is any doubt that the
person(s) identified are the beneficial owner(s), the natural person(s) who hold the
position of senior management in the Parent Guarantor;
(ii)
Verification: copies of proof of identity and country of residence (which may be
documented by copy of bank statement, utility bills, lease contracts or other official
documents from a reliable and independent source) no older than 3 Months from date of
receipt, in Roman Latin letters ( i.e. not Hebrew, Greek, Arabic or Russian letters in
readable form) of the Customers and any beneficial owner (except for beneficial owners
in listed companies as described in sub-paragraph (a) above) or, if no such person(s) are
identified or if there is any doubt that the person(s) identified are the beneficial owner(s),
in addition to the so identified beneficial owner(s), the natural person(s) who hold the
position of senior management officials in the Parent Guarantor and of any signatories
shall be verified in the following manner:
(A)
in relation to natural persons (e.g. beneficial owner(s) or senior management
officials): proof of identity shall include name, date of birth and civil registration
number verified on the basis of copies of passports or driver's licenses, other
government issued documents, lawyer's statements or a legal opinion; and
(B)
in relation to legal persons (e.g. Customers and/or any listed parent company):
proof of identity shall include registered name, country of incorporation, business
registration number, tax identification number (TIN), legal entity identifier (LEI) or
similar government issued identification number verified on the basis of transcript
from companies house or companies registry, Articles of Association and
Memorandum of Association, or other government issued documents.
Alternatively, bank statements, lawyer's statements, legal opinion or confirmation
from the Danish Consulate in the country
the registered office of the Customer
or listed parent company confirming name or business identification number;
(iii)
Signing authority and verification:
(A)
Authorised signatory: copies of Articles of Association and Memorandum of
Association, Board Resolution, or legal opinion. Proof of identity of the signatory
shall be verified on the basis of passport, identity card issued by a governmental
authority or driver's license in relation to the signing of authority of any person
executing a document on behalf of the Customers; and
(B)
Attorneys in fact: copies of any powers of attorney, documentation evidencing
general authority or legal opinion in relation to the signing authority of any
attorney-in-fact executing a document on behalf of the Customers, in each case
no older than 3 months. The proof of identity of any attorney-in-fact shall be
verified on the basis of passport, identity card issued by a governmental authority
or driver's license. Alternatively, if the attorney-in-fact is an attorney-at-law
qualified in a EU/EEA member state, a print-out of the webpage of the relevant
law firm with whom the attorney-at-law is employed evidencing such
employment; and
(iv)
a statement from the Customers confirming that the documents, data or information
previously provided to the Lender under paragraphs (i), (ii) and (iii) above is up-to-date,
or, alternatively, any relevant updated documents, data or information.
PART B
CONDITIONS PRECEDENT TO UTILISATION UNDER EACH TRANCHE
In this Part B, the
"
Relevant Ship
" means the particular Ship to which the relevant Tranche relates and
"
Relevant Borrower
" means the Borrower owning that Ship.
1
Borrowers
A certificate of an authorised signatory of the Relevant Borrower certifying that each copy
document which it is required to provide under this Part B of Schedule 2 (
Conditions Precedent
) a
true copy of the original and it is correct, complete and in full force and effect as at the Utilisation
Date of the Advance under the relevant Tranche.
2
Release of Existing Security
An original of the relevant Deed of Release and of each document to be delivered under or
pursuant to it, together with evidence satisfactory to the Lender of its due execution by the parties
to it.
3
Ship and other security
3.1
A duly executed original of the Mortgage, the General Assignment and, if applicable, any
Charterparty Assignment in respect of the Relevant Ship and of each document to be delivered
under or pursuant to each of them together with documentary evidence that the Mortgage in
respect of the Relevant Ship has been duly registered or, as the case may be, recorded as a valid
first preferred or, as the case may be, first priority ship mortgage in accordance with the laws of
the jurisdiction of its Approved Flag.
3.2
Documentary evidence that the Relevant Ship:
(a)
is definitively and permanently registered in the name of the Relevant Borrower under the
Approved Flag applicable to the Relevant Ship;
(b)
is in the absolute and unencumbered ownership of the Relevant Borrower save as contemplated
by the Finance Documents;
(c)
maintains the Approved Classification with the Approved Classification Society(ies) free of all
material overdue recommendations and conditions or adverse notations of the Approved
Classification Society and if the Relevant Ship is Ship H or Ship I, evidence that the rules of Det
Norske Veritas shall apply in full extent to such Ship; and
(c)
is insured in accordance with the provisions of this Agreement (including final cover notes from
the relevant underwriters and certificate of entry of the relevant P&I Club in the forms previously
approved by the Lender) and all requirements in this Agreement in respect of insurances
(including, without limitation, letters of undertaking by the Approved Brokers in accordance with
paragraph (b) of Clause 23.6 (
Copies of policies; letters of undertaking
)) have been complied with.
3.3
Documents establishing that the Relevant Ship will, as from the Utilisation Date of the Advance
under the relevant Tranche, be managed commercially by its Approved Commercial Manager and
managed technically by its Approved Technical Manager on terms acceptable to the Lender,
together with:
(a)
a Manager's Undertaking for each of the Approved Technical Manager and the Approved
Commercial Manager in respect of the Relevant Ship; and
(b)
copies of the Inventory of Hazardous Materials relating to the Relevant Ship, the relevant
Approved Technical Manager's Document of Compliance and of the Relevant Ship's Safety
Management Certificate (together with any other details of the applicable Safety Management
System which the Lender requires), and of any other documents required under the ISM Code and
the ISPS Code in relation to the Relevant Ship including without limitation an ISSC and a Tonnage
Certificate.
3.4
An opinion from an independent insurance consultant acceptable to the Lender on such matters
relating to the Insurances as the Lender may require.
4
Legal opinions
Legal opinions of the legal advisers to the Lender in the jurisdiction of the Approved Flag of the
Relevant Ship and such other relevant jurisdictions as the Lender may require.
5
Other documents and evidence
5.1
A copy of any other Authorisation or other document, opinion or assurance which the Lender
considers to be necessary or desirable (if it has notified the Borrowers accordingly) in connection
with the entry into and performance of the transactions contemplated by any Transaction
Document referred to in paragraph 3 (
Ship and other security
) above or for the validity and
enforceability of any such Transaction Document.
5.2
Any charterparties, pool agreement and on-hire certificate in respect of the Relevant Ship.
5.3
Evidence satisfactory to it of the current status of the Relevant Ship regarding EEXI (Energy
Efficiency Existing Ship Index) and of the Operational Carbon Intensity Rating of the Relevant Ship.
5.4
If the Relevant Ship is Ship B, Ship C, Ship D, Ship E or Ship F, a report on the fuel type used and
the fuel consumption (at service and economy speed for Ship B, Ship E or Ship F or at service for
Ship C and Ship D) of that Relevant Ship based on the Regulation (EU) 2015/757 of the European
Parliament and of the Council of 29 April 2015 on the monitoring, reporting and verification of
carbon dioxide emissions from maritime transport, and amending Directive 2009/16/EC.
5.5
Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 11
(
Fees
) and Clause 16 (
Costs and Expenses
) have been paid or will be paid by the Utilisation Date
for the Advance under the relevant Tranche.
5.6
Evidence that all sums then due (if any) to the Lender in respect of the relevant Existing
Indebtedness have been paid in full.
SCHEDULE 3
UTILISATION REQUEST
From:
Majuro Shipping Company Inc.
Toku Shipping Company Inc.
Mejato Shipping Company Inc.
Rakaru Shipping Company Inc.
Ebadon Shipping Company Inc.
Pulap Shipping Company Inc.
Weno Shipping Company Inc.
Erikub Shipping Company Inc.
Wotho Shipping Company Inc.
To:
Danish Ship Finance A/S
Dated: [
●
] 2023
Majuro Shipping Company Inc., Toku Shipping Company Inc., Mejato Shipping Company Inc., Rakaru
Shipping Company Inc., Ebadon Shipping Company Inc., Pulap Shipping Company Inc., Weno Shipping
Company Inc., Erikub Shipping Company Inc., Wotho Shipping Company Inc. – $100,000,000 Facility
Agreement dated [
●
] April 2023 (the
"
Agreement
"
)
1
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have
the same meaning in this Utilisation Request unless given a different meaning in this Utilisation
Request.
2
We wish to borrow the Facility on the following terms:
Proposed Utilisation Date: [
●
] (or, if that is not a Business Day, the next Business
Day)
Amount: $[
●
] or, if less, the Available Facility
Interest Period for the first Advance: [
●
]
3
[You are authorised and requested to deduct from the Advance prior to funds being remitted the
following amounts set out against the following items:
Deductible Items $
Upfront Fee
Lender's solicitors' fees inclusive of disbursements and VAT
[
●
] legal opinion fees (if any)
Net proceeds of Advance _____________]
4
We confirm that each condition specified in Clause 4.1 (
Initial conditions precedent
) and Clause 4.2
(
Further conditions precedent
) of the Agreement as they relate to the Advance to which this
Utilisation Request refers is satisfied on the date of this Utilisation Request.
5
The [net] proceeds of this Advance should be credited to [account].
6
This Utilisation Request is irrevocable.
Yours faithfully
____________________
[
●
]
authorised signatory for
Majuro Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Toku Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Mejato Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Rakaru Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Ebadon Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Pulap Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Weno Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Erikub Shipping Company Inc.
____________________
[
●
]
authorised signatory for
Wotho Shipping Company Inc.
SCHEDULE 4
FORM OF COMPLIANCE CERTIFICATE
To: Danish Ship Finance A/S as Lender
From: Diana Shipping Inc.
Dated: [
●
]
Majuro Shipping Company Inc., Toku Shipping Company Inc., Mejato Shipping Company Inc., Rakaru
Shipping Company Inc., Ebadon Shipping Company Inc., Pulap Shipping Company Inc., Weno Shipping
Company Inc., Erikub Shipping Company Inc., Wotho Shipping Company Inc. – $100,000,000 Facility
Agreement dated [
●
] April 2023 (the
"
Agreement
"
)
1
We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have
the same meaning when used in this Compliance Certificate unless given a different meaning in
this Compliance Certificate.
2
We confirm that:
(a)
the aggregate of all Cash and Cash Equivalents held by the Parent Guarantor on a consolidated
basis are [●];
(b)
the Market Value Adjusted Net Worth of the Group is [●];
(c)
the Market Value Adjusted Total Assets of the Group are [●]; and
(d)
the Security Cover Ratio is [●].
3
[We confirm that no Default is continuing.]
Signed:
________________________
Chief Finance Officer
of
Diana Shipping Inc.
SCHEDULE 5
DETAILS OF THE SHIPS
Ship name
Name
of the
Borrower/o
wner
IMO Number
Type
DWT
Approved Flag
and port of
registration
Approved
Classification
Society
Approved Classification
Approved
Commercial
Manager
Approved Technical Manager
ALCMENE
Majuro
Shipping
Company
Inc.
9568586
Post-
panamax
bulk carrier
93,193
Marshall Islands
Bureau Veritas
I +[ HULL + MACH
Bulk carrier CSR BC-A (holds 2,4, 6
may be empty) ESP GRAB (20)
Unrestricted navigation + AUT-
UMS , + AUT -PORT , MON-SHAFT ,
+ ALP , INWATERSURVEY
Diana Wilhelmsen
Management Limited
Diana Wilhelmsen
Management Limited
SEATTLE
Toku
Shipping
Company
Inc.
9476848
Capesize
bulk carrier
179,362
Marshall Islands
Nippon Kaiji Kyokai
NS* I MNS*
(CSR, BC-A, BC-XII, GRAB 20, PSPC-
WBT)(ESP)(IWS)(PSCM)
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
PHAIDRA
Mejato
Shipping
Company
Inc.
9661211
Post-
panamax
bulk carrier
87,146
Marshall Islands
American Bureau
of Shipping
+A1, Bulk Carrier, BC-A (holds 2,4
and 6 may be empty), ESP,
Ⓔ
+AMS, +ACCU, CPS, CSR AB-CM
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
ELECTRA
Rakaru
Shipping
Company
Inc.
9661223
Post-
panamax
bulk carrier
87,150
Marshall Islands
China
Classification
Society
☆
Skin; CSR; BC-A(Holds Nos. 2,4 ^6
may be Empty); GRAB[20];
PSPC(R,D); Loading Computer (S, I,
G); ESP; In-Water Survey FTP;
BWMP
☆
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
ASTARTE
Ebadon
Shipping
Company
Inc.
9600645
Kamsarmax
bulk carrier
81,513
Marshall Islands
American Bureau
of Shipping
+A1, Bulk Carrier, BC-A (holds 2, 4
and 6 may be empty), ESP,
Ⓔ
,
+AMS, +ACCU, CPS, CSR, AB-CM
Additional Notations
GP, GRAB 30, RW, TCM, UWILD
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
P. S. PALIOS
Pulap
Shipping
Company
Inc.
9573103
Capesize
bulk carrier
179,134
Marshall Islands
Bureau Veritas
I + HULL + MACH
Bulk carrier CSR CPS(WBT) BC-A
(holds 2,4,6
☆
GRAB+ 20cv ESP Unrestricted
navigation + AUT-UMS , MON-
SHAFT , GREEN PASSPORT , + ALP ,
CYBER MANAGED ,
INWATERSURVEY , LI-HG
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
G. P. ZAFIRAKIS
Weno
Shipping
Company
Inc.
9671931
Capesize
bulk carrier
179,492
Marshall Islands
China
Classification
Society
☆
A(Holds Nos. 2,4,6 & 8 may be
Empty); GRAB[25]; ERS*; PSPC(B);
Loading Computer (S, I, G, D); ESP;
In-Water Survey
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
CRYSTALIA
Erikub
Shipping
Company
Inc.
9658874
Panamax
bulk carrier
77,525
Greek (at the port
of Piraeus)
China
Classification
Society/Det
Norske Veritas
+ 1A1 Bulk carrier BC(A) BIS
BWM(T) CSR E0 ESP Grab(20 t)
Holds(2,4 & 6)may be empty
Ice(1B) TMON
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
ATALANDI
Wotho
Shipping
Company
Inc.
9658886
Panamax
bulk carrier
77,529
Greek (at the port
of Chios)
China
Classification
Society/Det
Norske Veritas
+ 1A1 Bulk carrier BC(A) BIS
BWM(T) CSR E0 ESP Grab(20 t)
Holds(2,4 & 6)may be empty
Ice(1B) TMON
Diana Shipping
Services S.A.
Diana Shipping Services S.A.
SCHEDULE 6
TIMETABLES
Delivery of a duly completed Utilisation Request
(Clause 5.1 (
Delivery of Utilisation Request
))
Three Business Days before the intended
Utilisation Date (Clause 5.1 (
Delivery of
Utilisation Request
))
EXECUTION PAGES
BORROWERS
SIGNED
●
] )
duly authorised )
for and on behalf of )
MAJURO SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
TOKU SHIPPING COMPANY INC.
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
MEJATO SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
RAKARU SHIPPING COMPANY INC. )
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
EBADON SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
PULAP SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
WENO SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
ERIKUB SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
SIGNED
●
] )
duly authorised )
for and on behalf of )
WOTHO SHIPPING COMPANY INC.
)
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
PARENT GUARANTOR
SIGNED
●
] )
duly authorised )
for and on behalf of )
DIANA SHIPPING INC.
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )
ORIGINAL LENDER
SIGNED
duly authorised )
for and on behalf of )
DANISH SHIP FINANCE A/S
in the presence of: )
Witness' signature: )
Witness' name: )
Witness' address: )