Please wait
 
Confidential
 
Dated 26 June 2023
 
THE ENTITIES LISTED IN SCHEDULE 1
 
as Borrowers
 
arranged by
 
DNB (UK) LTD.
with
 
DNB BANK ASA
 
as Agent
 
DNB BANK ASA
 
as Security Agent
DNB BANK ASA
 
as Sustainability Co-ordinator
 
guaranteed by
 
DIANA SHIPPING INC.
FACILITY AGREEMENT
for $100,000,000
Loan Facility
 
exhibit450p2i0
Contents
Clause
 
Page
THIS AGREEMENT
 
is dated 26 June 2023 and made between:
(1)
THE ENTITIES
 
listed in Part 1 of
as borrowers (the
Borrowers
);
(2)
DIANA SHIPPING INC.
as guarantor (the
Guarantor
);
(3)
DNB (UK) LTD.
 
as bookrunner and as mandated lead arranger (the
Arranger
);
(4)
DNB BANK ASA
 
as agent of the other Finance Parties (the
Agent
);
(5)
DNB BANK ASA
 
as security agent and trustee for the Finance Parties (the
Security Agent
);
 
(6)
DNB BANK ASA
as sustainability co-ordinator for the other Finance Parties (the
Sustainability Co-
ordinator
);
(7)
THE FINANCIAL
 
INSTITUTIONS
listed in
 
Part 3 of
as lenders
 
(the
Original Lenders
);
and
(8)
DNB BANK ASA
as hedging provider (the
Hedging Provider
).
IT IS AGREED
 
as follows:
Section 1 -
 
Interpretation
1
 
Definitions and interpretation
1.1
 
Definitions
In this
 
Agreement and (unless
 
otherwise defined
 
in the
 
relevant Finance Document)
 
the other
 
Finance
Documents:
Account
 
means any bank
 
account, deposit or
 
certificate of deposit
 
opened, made
 
or established in
accordance with clause
 
(
Bank accounts
).
Account
 
Bank
 
means,
 
in
 
relation
 
to
 
any
 
Account,
 
DNB
 
Bank
 
ASA,
 
London
 
Branch
 
or
 
any
 
other
Affiliate of the Agent as may be approved by the
 
Majority Lenders at the request of the Borrowers.
Account Holder(s)
 
means, in relation
 
to any Account,
 
each Obligor in whose
 
name that Account
 
is
held.
Accounting Reference
 
Date
means 31
 
December or
 
such other
 
date as
 
may be
 
approved by
 
the
Lenders.
Account
 
Security
 
means,
 
in
 
relation
 
to
 
an
 
Account,
 
a
 
deed
 
or
 
other
 
instrument
 
by
 
the
 
relevant
Account Holder(s) in favour of the Security Agent and/or the other Finance Parties in an agreed form
conferring a Security Interest over that Account.
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.
Agent
 
includes any person who may be appointed as such
 
under the Finance Documents.
Agent of Existing Indebtedness
means ABN AMRO Bank N.V..
Annex VI
has the meaning given to it in clause
 
(
Poseidon principles
).
Auditors
 
means one
 
of PricewaterhouseCoopers,
 
Ernst &
 
Young,
 
KPMG
 
or Deloitte
 
& Touche
 
or
another approved firm.
Authorisation
 
means
 
any
 
authorisation,
 
consent,
 
concession,
 
approval,
 
resolution,
 
licence,
exemption, filing, notarisation or registration.
Available Commitment
 
means a Lender's Commitment
 
minus the amount of
 
its participation in the
Loan.
 
Available
Facility
means the
 
aggregate for the
 
time being of
 
all the
 
Lenders' Available Commitments.
 
Basel Accords
means the Basel II Accord, Basel III Accord and Reformed
 
Basel III.
Basel Regulation
means either a Basel II Regulation or a Basel III Regulation.
Basel
 
II
 
Accord
means
 
the
 
“International
 
Convergence
 
of
 
Capital
 
Measurement
 
and
 
Capital
Standards, a Revised
 
Framework” published by
 
the Basel Committee
 
on Banking Supervision
 
in June
2004
 
as
 
updated
 
prior
 
to,
 
and
 
in
 
the
 
form
 
existing
 
on,
 
the
 
date
 
of
 
this
 
Agreement,
 
excluding
 
any
amendment thereto arising out of the Basel III Accord
 
or Reformed Basel III.
Basel II Approach
means, in relation to any Finance Party, either the Standardised Approach or the
relevant Internal Ratings Based
 
Approach (each as defined
 
in the Basel II Regulations
 
applicable to
such
 
Finance
 
Party)
 
adopted
 
by
 
that
 
Finance
 
Party
 
(or
 
any
 
of
 
its
 
Affiliates)
 
for
 
the
 
purposes
 
of
implementing or complying with the Basel Accords.
Basel II Regulation
means:
(a)
 
any law or regulation in force as
 
at the date hereof implementing the Basel II Accord (including
the relevant provisions of CRR) to the extent
 
only that such law or regulation re-enacts
 
and/or
implements the requirements of the Basel II Accord but excluding any provision of such law or
regulation implementing the Basel III Accord or Reformed Basel
 
III; and
(b)
 
any Basel II Approach adopted by a Finance Party or
 
any of its Affiliates.
Basel III Accord
means, together:
(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”,
including Reformed Basel III.
Basel III
 
Increased
 
Cost
means an
 
Increased
 
Cost
 
which is
 
attributable
 
to the
 
implementation
 
or
application of or compliance with any Basel III Regulation (whether such implementation, application
or compliance
 
is by
 
a government,
 
regulator,
 
Finance
 
Party or
 
any of
 
its Affiliates)
 
and includes
 
a
CRR Increased Cost.
Basel III
 
Regulation
means any
 
law or
 
regulation implementing
 
the Basel
 
III Accord
 
(including the
relevant provisions
 
of CRR)
 
save and
 
to the
 
extent that
 
such law
 
or regulation
 
re-enacts a
 
Basel II
Regulation.
Break Costs
 
means the amount (if any) by which:
(a)
 
the interest which
 
a Lender should
 
have received for
 
the period from
 
the date of
 
receipt of all
or any part of its participation in the
 
Loan or relevant part of it or
 
an Unpaid Sum to the last day
of the current
 
Interest Period
 
in respect of
 
the Loan or
 
relevant part of
 
it or Unpaid
 
Sum, had
the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)
 
the
 
amount
 
which
 
that
 
Lender
 
would
 
be
 
able
 
to
 
obtain
 
by
 
placing
 
an
 
amount
 
equal
 
to
 
the
relevant principal
 
amount or
 
Unpaid Sum
 
received by
 
it on
 
deposit with
 
a leading
 
bank for
 
a
period starting on the Business Day following receipt or recovery and ending on the
 
last day of
that Interest Period.
Business Day
 
means a day (other than a Saturday or Sunday) on which banks are open for general
business in London, Athens, Oslo
 
and New York and, in relation to
 
the fixing of an
 
interest rate, which
is a US Government Securities Business Day.
Change of Control
occurs if, at any time, without the prior written consent
 
of the Lenders:
(a)
 
the
 
Guarantor
 
ceases
 
to
 
be
 
listed
 
on
 
the
 
New
 
York
 
Stock
 
Exchange
 
or
 
any
 
other
 
stock
exchange acceptable to the Lenders; or
(b)
 
a Borrower ceases to be a wholly-owned direct Subsidiary
 
of the Guarantor; or
(c)
 
the Disclosed Persons
 
cease (i)
 
to own legally
 
and beneficially,
 
either directly
 
or indirectly,
 
at
least 12.5 per cent of the issued and outstanding common stock of the Guarantor and/or (ii) to
control
 
at
 
least
 
25
 
per
 
cent
 
of the
 
votes
 
in
 
respect
 
of
 
any matter
 
submitted
 
to
 
a
 
vote of
 
the
common stockholders of the Guarantor;
 
or
(d)
 
any person
 
or persons
 
acting in
 
concert (other
 
than the
 
Disclosed Persons)
 
control a
 
higher
percentage than the Disclosed Persons of
 
the votes that might be cast
 
in respect of any matter
submitted to a vote of the common stockholders of the
 
Guarantor;
 
or
(e)
 
Ms. Semiramis Paliou
 
ceases to (i)
 
be the Chief
 
Executive Officer of
 
the Guarantor and/or
 
(ii)
to have an active role in the decision making in respect of the
 
Guarantor.
Charged
 
Property
 
means
 
all
 
of
 
the
 
assets
 
of
 
the
 
Obligors
 
which
 
from
 
time
 
to
 
time
 
are,
 
or
 
are
expressed or intended to be, the subject of the Transaction
 
Security.
Charter
means in relation to a Ship, any charter commitment in relation to that Ship which is entered
into during the Facility
 
Period between the relevant
 
Owner of that Ship
 
as owner and any
 
person as
charterer
 
or
 
counterparty
 
of
 
the
 
Owner
 
thereunder,
 
and
 
which
 
is
 
capable
 
of
 
lasting
 
more
 
than
 
12
Months
 
(after
 
taking
 
into
 
account
 
any
 
options
 
to
 
extend
 
contained
 
therein)
 
and
Charters
means
together all or any of them.
Charter Assignment
means, in relation to a Ship and its Charter Documents,
 
an assignment by the
relevant Owner of its
 
interest in such
 
Charter Documents in favour
 
of the Security Agent
 
in the agreed
form.
Charter Documents
means, in relation to a Ship and that Charter of that Ship
 
,
 
that Charter and any
documents
 
supplementing
 
it
 
and
 
any
 
guarantee
 
or
 
security
 
given
 
by
 
any
 
person
 
for
 
the
 
relevant
charterer’s obligations under it.
Classification
 
means,
 
in
 
relation
 
to
 
a
 
Ship,
 
the
 
classification
 
specified
 
in
 
respect
 
of
 
such
 
Ship
 
in
 
(
Ship
 
information
)
 
with
 
the
 
relevant
 
Classification
 
Society
 
or
 
another
 
classification
approved by the Majority Lenders as its classification, at the
 
request of the relevant Owner.
Classification Society
 
means, in relation to a
 
Ship, the classification society
 
specified in respect of
such Ship in
Ship information
) or another classification society approved by the Majority
Lenders as its Classification Society,
 
at the request of the relevant Owner.
Code
 
means the US Internal Revenue Code of 1986.
Commitment
 
means:
(a)
 
in
 
relation
 
to
 
an
 
Original
 
Lender,
 
the
 
amount
 
set
 
opposite
 
its
 
name
 
under
 
the
 
heading
“Commitment” in
The original
 
parties
) and the
 
amount of
 
any other
 
Commitment
assigned to it under this Agreement; and
(b)
 
in
 
relation
 
to
 
any
 
other
 
Lender,
 
the
 
amount
 
of
 
any
 
Commitment
 
assigned
 
to
 
it
 
under
 
this
Agreement,
to the extent not cancelled, reduced or assigned by it under
 
this Agreement.
Compliance Certificate
 
means a certificate substantially
 
in the form set out
 
in
Form of
Compliance Certificate
) or otherwise approved.
Confidential
 
Information
 
means
 
all
 
information
 
relating
 
to
 
an
 
Obligor,
 
the
 
Group,
 
the
 
Finance
Documents
 
or
 
the
 
Facility
 
of
 
which
 
a
 
Finance
 
Party
 
becomes
 
aware
 
in
 
its
 
capacity
 
as,
 
or
 
for
 
the
purpose of
 
becoming, a
 
Finance Party
 
or which
 
is received
 
by a
 
Finance Party
 
in relation
 
to, or
 
for
the purpose of becoming a Finance Party under,
 
the Finance Documents or the Facility from either:
(a)
 
any Group Member or any of its advisers; or
(b)
 
another
 
Finance
 
Party,
 
if
 
the
 
information
 
was
 
obtained
 
by
 
that
 
Finance
 
Party
 
directly
 
or
indirectly from any Group Member 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:
 
(i)
 
information that:
(A)
 
is or
 
becomes public
 
information
 
other
 
than
 
as a
 
direct
 
or indirect
 
result of
 
any
breach by that Finance Party of clause
 
(
Confidential Information
); or
(B)
 
is
 
identified
 
in
 
writing
 
at
 
the
 
time
 
of
 
delivery
 
as
 
non-confidential
 
by
 
any
 
Group
Member or any of its advisers; or
(C)
 
is known by that Finance Party before the date the information is disclosed to it in
accordance
 
with
 
paragraphs
 
(a)
 
or
 
(b)
 
above
 
or
 
is
 
lawfully
 
obtained
 
by
 
that
Finance Party after that date, from a source which is, as far as that Finance Party
is aware,
 
unconnected
 
with
 
the Group
 
and
 
which,
 
in
 
either case,
 
as far
 
as that
Finance Party is aware, has not
 
been obtained in breach of, and
 
is not otherwise
subject to, any obligation of confidentiality; and
(ii)
 
any Funding Rate.
Confirmation
shall have,
 
in relation
 
to any Hedging
 
Transaction,
 
the meaning
 
given to
 
that term
 
in
the Hedging Master Agreement.
Constitutional
 
Documents
 
means,
 
in
 
respect
 
of
 
an
 
Obligor,
 
such
 
Obligor's
 
memorandum
 
and
articles of
 
association,
 
by-laws
 
or
 
other
 
constitutional
 
documents
 
including
 
as
 
referred
 
to
 
in
 
any
certificate relating to an Obligor delivered pursuant to
Conditions precedent
).
CRR
 
means either CRR-EU or,
 
as the context may require, CRR-UK.
CRR-EU
 
means
 
regulation
 
575/2013
 
of
 
the
 
European
 
Union
 
on
 
prudential
 
requirements
 
for
 
credit
institutions
 
and
 
investment
 
firms
 
and
 
regulation
 
2019/876
 
of
 
the
 
European
 
Union
 
amending
Regulation
 
(EU)
 
No
 
575/2013
 
and
 
all
 
delegated
 
and
 
implementing
 
regulations
 
supplementing
 
that
Regulation.
CRR
 
Increased
 
Cost
 
means
 
an
 
Increased
 
Cost
 
which
 
is
 
attributable
 
to
 
the
 
implementation
 
or
application of or compliance with
 
the CRR (whether such implementation,
 
application or compliance
is by a government, regulator,
 
Finance Party or any of its Affiliates).
CRR-UK
 
means CRR-EU
 
as amended
 
and transposed
 
into the
 
laws of
 
the United
 
Kingdom by
 
the
European Union (Withdrawal)
 
Act 2018 and
 
the European
 
Union (Withdrawal
 
Agreement) Act 2020
and as amended by the Capital Requirements (Amendment)
 
(EU Exit) Regulations 2019.
Deed of Covenant
means, in relation to
 
a Ship in respect of
 
which the Mortgage is
 
in account current
form, a first deed of covenant in respect of such Ship by
 
the relevant Owner in favour of the Security
Agent in the agreed form.
Default
 
means an
 
Event of
 
Default or
 
any event
 
or circumstance
 
specified in
 
clause
 
(
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.
Defaulting Lender
 
means any Lender (other than a Lender which is a Guarantor
 
Affiliate):
(a)
 
which has failed
 
to make its
 
participation in the
 
Loan available (or
 
has notified the
 
Agent or a
Borrower
 
(which
 
has
 
notified
 
the
 
Agent)
 
that
 
it
 
will
 
not
 
make
 
its
 
participation
 
in
 
the
 
Loan
available) by the Utilisation Date in accordance with clause
 
(
Lenders’ participation
);
(b)
 
which has otherwise rescinded or repudiated a Finance Document;
 
or
(c)
 
with respect to which an Insolvency Event has occurred and
 
is continuing,
 
unless, in the case of paragraph (a) above:
(iii)
 
its failure to pay is caused by:
(A)
 
administrative or technical error; or
(B)
 
a Disruption Event; and
payment is made within three Business Days of its due date;
 
or
(iv)
 
the
 
Lender
 
is
 
disputing
 
in
 
good
 
faith
 
whether
 
it
 
is
 
contractually
 
obliged
 
to
 
make
 
the
payment in question.
 
Delegate
means
 
any
 
delegate,
 
agent,
 
attorney,
 
additional
 
trustee
 
or
 
co-trustee
 
appointed
 
by
 
the
Security Agent.
Debt Purchase Transaction
 
means, in relation to a person, a transaction where such person:
(a)
 
purchases by way of assignment or transfer;
(b)
 
enters into any sub-participation in respect of; or
(c)
 
enters into
 
any other
 
agreement or
 
arrangement having an
 
economic effect substantially
 
similar
to a sub-participation in respect of,
any Commitment or amount outstanding under this Agreement.
Disclosed Persons
 
means:
(a)
 
Mr. Simeon Palios;
 
(b)
 
the direct lineal descendants of the person referred to
 
in paragraph (a) above;
(c)
 
the husband, wife,
 
widower or widow
 
of any person
 
referred to in
 
paragraphs
 
(a) and (b)
 
above;
 
(d)
 
the
 
estates,
 
trusts
 
or
 
legal
 
representatives
 
of
 
which
 
any
 
of
 
the
 
above
 
persons
 
are
 
the
beneficiaries; and
(e)
 
any company legally
 
or beneficially owned
 
or, as
 
the case may be,
 
controlled by one
 
or more
of the persons or entities referred in paragraphs (a), (b),
 
(c) or (d) above.
Disposal Repayment Date
 
means in relation to:
(a)
 
a Total
 
Loss of a Mortgaged Ship, the applicable Total
 
Loss
Repayment Date; and
(b)
 
a sale of a
 
Mortgaged Ship by the relevant
 
Owner, the date upon which such sale
 
is completed
by the
 
transfer of
 
title to
 
the purchaser
 
in exchange
 
for payment
 
of all
 
or part
 
of the
 
relevant
purchase price (and upon or immediately prior to such
 
completion).
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
(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 preventing
 
that, or any other
Party:
(i)
 
from performing its payment obligations under the Finance Documents;
 
or
(ii)
 
from
 
communicating
 
with
 
other
 
Parties
 
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
 
whose
operations are disrupted.
Earnings
 
means, in
 
relation to
 
a Ship
 
and a
 
person, all
 
money at
 
any time
 
payable to
 
that person
for or
 
in relation
 
to the
 
use or
 
operation of
 
such Ship
 
including (without
 
limitation)
 
freight, hire
 
and
passage moneys,
 
money payable
 
to that person
 
for the
 
provision of
 
services by
 
or from
 
such Ship
or under
 
any charter
 
commitment,
 
requisition for
 
hire compensation,
 
remuneration
 
for salvage
 
and
towage
 
services,
 
demurrage
 
and
 
detention
 
moneys
 
and
 
damages
 
for
 
breach
 
and
 
payments
 
for
termination or variation of any charter commitment.
Earnings
 
Account
 
means
 
any
 
Account
 
designated
 
as
 
an
 
“
Earnings
 
Account
”
 
under
 
clause
(
Bank accounts
).
Eligible Institution
means any
 
Lender or
 
other bank,
 
financial institution,
 
trust, fund
 
or other
 
entity
selected by the Borrowers and which, in each case, is
 
not a Guarantor Affiliate or a Group Member.
Environmental Claims
 
means:
(a)
 
enforcement, clean-up, removal or other governmental or regulatory action or orders or claims
instituted or made pursuant to any Environmental Laws
 
or resulting from a Spill; or
(b)
 
any claim made by any other person relating to a Spill.
Environmental Incident
 
means any Spill from any vessel in circumstances where:
(a)
 
any Fleet
 
Vessel
 
or its
 
owner,
 
operator
 
or manager
 
may be
 
liable for
 
Environmental
 
Claims
arising
 
from the
 
Spill (other
 
than Environmental
 
Claims
 
arising
 
and
 
fully
 
satisfied
 
before
 
the
date of this Agreement); and/or
(b)
 
any
 
Fleet
 
Vessel
 
may
 
be
 
arrested
 
or
 
attached
 
in
 
connection
 
with
 
any
 
such
 
Environmental
Claim.
Environmental Laws
 
means all laws, regulations and
 
conventions concerning pollution or protection
of human health or the environment.
Erroneous Payment
 
means a payment of an amount by the Agent to another Party which the
 
Agent
determines (in its sole discretion) was made in error.
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 (Text
 
with EEA relevance).
Event of
 
Default
 
means any event
 
or circumstance
 
specified as
 
such in
 
clause
Events of
 
Default
).
Existing
 
Indebtedness
means,
 
together,
 
at
 
any
 
relevant
 
time
 
the
 
aggregate
 
amount
 
of
 
principal,
interest
 
and
 
all
 
other
 
amounts
 
outstanding
 
and
 
owing
 
by
 
any
 
Obligor
 
under
 
the
 
Existing
 
Facility
Agreements
 
and secured on any of the Ships
.
Existing Facility Agreements
 
means together:
(a)
 
the facility agreement
 
dated 27
 
June 2019,
 
as amended
 
and restated
 
by an
 
amendment and
restatement agreement dated
 
22 May
 
2020, as
 
amended and
 
supplemented by a
 
supplemental
agreement dated 20 May 2021
,
 
made between (inter alios) (i) Kaben
 
Shipping Company Inc.,
Taroa
 
Shipping
 
Company
 
Inc.,
 
Gala
 
Properties
 
Inc.,
 
Tuvalu
 
Shipping
 
Company
 
Inc.,
 
Jabat
Shipping Company
 
Inc. and
 
Bikini Shipping
 
Company
 
Inc. as
 
borrowers,
 
(ii) Diana
 
Shipping
Inc. as
 
guarantor, (iii) ABN AMRO
 
Bank N.V. as facility agent,
 
swap provider and
 
security agent
and
 
(iv)
 
the
 
financial
 
institutions
 
referred
 
to
 
therein
 
as
 
lenders,,
 
relating
 
to
 
a
 
loan
 
of
 
up
 
to
$25,000,000; and
(b)
 
the
 
facility
 
agreement
 
dated
 
14
 
May
 
2021
 
made
 
between
 
(inter
 
alios)
 
(i)
 
Rairok
 
Shipping
Company
 
Inc.,
 
Lae
 
Shipping
 
Company
 
Inc.,
 
Namu
 
Shipping
 
Company
 
Inc.,
 
Fayo
 
Shipping
Company Inc.,
 
Ujae Shipping
 
Company Inc.
 
and Lelu
 
Shipping Company
 
Inc. as
 
borrowers,
(ii) Diana
 
Shipping
 
Inc.
 
as guarantor,
 
(iii)
 
ABN AMRO
 
Bank N.V.
 
as arranger,
 
facility
 
agent,
swap provider
 
and security
 
agent and
 
(iv) the
 
financial institutions referred
 
to therein
 
as lenders,
as amended, supplemented and/or restated to date, relating
 
to a loan of up to $91,000,000,
and
Existing Facility Agreement
 
means any of them.
Facility
 
means the term
 
loan facility made
 
available under this
 
Agreement as described
 
in clause
(
The Facility
).
Facility Office
 
means:
(a)
 
in respect of a Lender,
 
the office or offices notified
 
by that Lender to the Agent in writing
 
on or
before
 
the
 
date
 
it
 
becomes
 
a Lender
 
(or,
 
following
 
that
 
date,
 
by
 
not
 
less
 
than
 
five Business
Days' written notice)
 
as the office
 
or offices
 
through which it
 
will perform its
 
obligations under
this Agreement; or
(b)
 
in respect of any other Finance Party,
 
the office in the jurisdiction in
 
which it is resident for tax
purposes.
Facility
Period
 
means the period from and including the date of this Agreement to and including the
date
 
on
 
which
 
the
 
Total
 
Commitments
 
have reduced
 
to zero
 
and
 
all
 
indebtedness
 
of the
 
Obligors
under the Finance Documents has been fully paid and
 
discharged.
Fallback Interest Period
means three Months.
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
 
Application Date
 
means:
(a)
 
in relation
 
to a
 
“withholdable payment”
 
described in
 
section 1473(1)(A)(i)
 
of the
 
Code (which
relates to payments of interest and certain other payments from sources within the US), 1 July
2014; or
(b)
 
in relation to
 
a “passthru payment” described
 
in section 1471(d)(7)
 
of the Code
 
not falling within
paragraph
 
(a)
 
above,
 
the
 
first
 
date
 
from
 
which
 
such
 
payment
 
may
 
become
 
subject
 
to
 
a
deduction or withholding required by FATCA.
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.
Fee Letter
means any letter
 
or letters dated
 
on or about
 
the date of
 
this Agreement
 
made between
(inter
 
alios)
 
the
 
Borrowers
 
and/or
 
the
 
Guarantor
 
and
 
the
 
Agent
 
setting
 
out
 
the
 
fees
 
referred
 
to
 
in
clause
 
(
Fees
).
Final
 
Repayment
 
Date
means,
 
subject
 
to
 
clause
 
(
Business
 
Days
)
 
and
 
clause
 
(
Margin
reset; mandatory prepayment
), the earlier
 
of (a) the
 
date falling 78
 
Months after the
 
Utilisation Date
and (b) 31 December 2029.
Finance Documents
 
means this
 
Agreement, the
 
Security Documents,
 
the Hedging
 
Contracts,
 
the
Hedging Master Agreement,
 
any Fee
 
Letter and
 
any other document
 
designated as such
 
by the
 
Agent
and the Borrowers.
Finance
 
Party
 
means
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
 
Hedging
 
Provider,
 
the
 
Arranger
 
,
 
the
Sustainability Co-ordinator or a Lender.
Financial Indebtedness
 
means any indebtedness for or in respect of:
(a)
 
moneys borrowed and debit balances at banks or other
 
financial institutions;
(b)
 
any
 
acceptance
 
under
 
any
 
acceptance
 
credit
 
or
 
bill
 
discounting
 
facility
 
(or
 
dematerialised
equivalent);
(c)
 
any note
 
purchase facility
 
or the issue
 
of bonds,
 
notes, debentures,
 
loan stock
 
or any
 
similar
instrument;
(d)
 
the amount
 
of any
 
liability in
 
respect
 
of any
 
lease
 
or hire
 
purchase
 
contract
 
which would,
 
in
accordance with GAAP,
 
be treated as a finance or capital lease;
(e)
 
receivables sold or
 
discounted (other than any
 
receivables to the extent
 
they are sold
 
on a non-
recourse basis and meet any requirement for the de-recognition
 
under GAAP);
(f)
 
any Treasury
 
Transaction (and,
 
when calculating the
 
value of that Treasury
 
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 Treasury Transaction,
 
that amount) shall be taken into account);
(g)
 
any
 
counter-indemnity
 
obligation
 
in
 
respect
 
of
 
a
 
guarantee,
 
indemnity,
 
bond,
 
standby
 
or
documentary letter of credit or any other instrument issued
 
by a bank or financial institution;
(h)
 
any amount
 
raised by
 
the issue
 
of shares
 
which are
 
redeemable (other
 
than at
 
the option
 
of
the issuer) before the Final
 
Repayment Date (or are otherwise
 
classified as borrowings under
GAAP);
(i)
 
any amount of any liability under an advance or deferred purchase agreement if (1)
 
one of the
primary
 
reasons
 
behind
 
entering
 
into
 
the
 
agreement
 
is
 
to
 
raise
 
finance
 
or
 
to
 
finance
 
the
acquisition or construction of the asset or
 
service in question or (2) the agreement is
 
in respect
exhibit450p15i0
of the supply
 
of assets
 
or services
 
and payment
 
is due
 
more than
 
120 days
 
after the
 
date of
supply;
(j)
 
any amount raised
 
under any
 
other transaction
 
(including any
 
forward sale or
 
purchase, sale
and
 
sale
 
back
 
or
 
sale
 
and
 
leaseback
 
agreement)
 
of
 
a
 
type
 
not
 
referred
 
to
 
in
 
any
 
other
paragraph of this definition having the commercial effect of a borrowing or otherwise classified
as borrowings under GAAP; and
(k)
 
the amount of any
 
liability in respect of
 
any guarantee or indemnity for
 
any of the items
 
referred
to in paragraphs
 
to
 
above.
Financial Year
 
means, in respect of an Obligor or a Group Member, the annual accounting period of
that Obligor or Group Member ending on or about the
 
Accounting Reference Date in each year.
First
 
Repayment
 
Date
means
 
subject
 
to
 
clause
 
(
Business
 
Days
),
 
the
 
date
 
falling
 
three
 
(3)
Months after the Utilisation Date.
Flag State
 
means, in relation to
 
a Ship, the country specified
 
in respect of such Ship
 
in
 
(
Ship information
), or such other state or territory as may be approved by the
 
Lenders, at the request
of
 
the
 
relevant
 
Owner,
 
as
 
being
 
the
 
“
Flag
 
State
”
 
of
 
such
 
Ship
 
for
 
the
 
purposes
 
of
 
the
 
Finance
Documents.
Fleet Vessel
means each Mortgaged
 
Ship and any other
 
vessel owned or bareboat
 
chartered in by
any Group Member 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.
Funding
 
Rate
 
means any
 
individual rate
 
notified by
 
a Lender
 
to the
 
Agent pursuant
 
to paragraph
(a)(ii) of clause
 
(
Cost of funds
).
GAAP
 
means generally accepted accounting principles
 
in the US.
General
 
Assignment
means,
 
in
 
relation
 
to
 
a
 
Ship
 
in
 
respect
 
of
 
which
 
the
 
Mortgage
 
is
 
not
 
in
 
an
account
 
current
 
form,
 
a
 
first
 
assignment
 
of
 
its
 
interest
 
in
 
the
 
Ship's
 
Insurances,
 
Earnings
 
and
Requisition Compensation
 
by the
 
relevant
 
Owner
 
in favour
 
of the
 
Security Agent
 
and/or
 
any other
Finance Party in the agreed form.
Group
 
means the Guarantor
 
and its Subsidiaries
 
for the time
 
being and, for
 
the purposes of
 
clause
 
(
Financial
 
statements
)
 
and
 
clause
 
(
Financial
 
covenants
),
 
any
 
other
 
entity
 
required
 
to
 
be
treated as
 
a subsidiary
 
in the
 
Guarantor’s
 
consolidated
 
accounts in
 
accordance
 
with GAAP
 
and/or
any applicable law.
Group Member
 
means any Obligor and any other entity which is part
 
of the Group.
Guarantee
 
means the guarantee and other obligations of the
 
Guarantor under clause
 
(
Guarantee
and indemnity
).
 
Guarantor Affiliate
means the Guarantor,
 
each of its
 
Affiliates, any
 
trust of which
 
the Guarantor or
any of
 
its
 
Affiliates
 
is a
 
trustee,
 
any partnership
 
of which
 
the
 
Guarantor
 
or any
 
of its
 
Affiliates
 
is a
partner
 
and
 
any
 
trust,
 
fund
 
or
 
other
 
entity
 
which
 
is
 
managed
 
by,
 
or
 
is
 
under
 
the
 
control
 
of,
 
the
Guarantor or any of its Affiliates.
Hedging Contract
means any Hedging Transaction
 
between
one or more of the
 
Borrowers
and the
Hedging
 
Provider
 
pursuant
 
to
 
the
 
Hedging
 
Master
 
Agreement
 
and
 
includes
 
the
 
Hedging
 
Master
Agreement and
 
any Confirmations
 
from time
 
to time
 
exchanged under
 
it and
 
governed by
 
its terms
relating
 
to
 
that
 
Hedging
 
Transaction
 
and
 
any
 
contract
 
in
 
relation
 
to
 
such
 
a
 
Hedging
 
Transaction
constituted and/or evidenced by them and
 
Hedging Contracts
means all of them.
Hedging
 
Contract
 
Security
means
 
a
 
deed
 
or
 
other
 
instrument
 
by
 
the
 
Borrowers
 
in
 
favour
 
of
 
the
Security Agent in the agreed form conferring a Security
 
Interest over any Hedging Contracts.
Hedging
 
Exposure
means,
 
as at
 
any
 
relevant
 
date,
 
the
 
aggregate
 
of
 
the
 
amount
 
certified
 
by the
Hedging Provider to the Agent to be the net amount in
 
dollars;
(a)
 
in relation to all Hedging Contracts with the
 
Hedging Provider that have been closed out
 
on or
prior to
 
the relevant
 
date, that
 
is due
 
and owing
 
by the
 
Borrowers to
 
the
 
Hedging Provider
 
in
respect of such Hedging Contracts on the relevant date; and
(b)
 
in
 
relation
 
to
 
all
 
Hedging
 
Contracts
 
that
 
are
 
continuing
 
on
 
the
 
relevant
 
date,
 
that
 
would
 
be
payable by the
 
Borrowers to
 
the Hedging Provider
 
under (and calculated
 
in accordance with)
the early termination
 
provisions of the
 
Hedging Contracts
 
as if an
 
Early Termination
 
Date (as
defined in the Hedging
 
Master Agreement) had occurred
 
on the relevant date
 
in relation to all
such continuing Hedging Contracts.
Hedging Master Agreement
 
means the
 
agreement made or
 
(as the context
 
may require) to
 
be made
between the
 
Borrowers
 
and the
 
Hedging
 
Provider comprising
 
an ISDA
 
Master Agreement
 
and the
Schedule thereto in the agreed form.
Hedging
 
Transaction
 
has
 
the
 
meaning
 
given
 
to
 
the
 
term
 
"Transaction"
 
in
 
the
 
Hedging
 
Master
Agreement.
Historic Term
 
SOFR
 
means, in
 
relation to
 
the Loan
 
or any
 
part of
 
it or
 
any Unpaid
 
Sum, the
 
most
recent Term
 
SOFR for
 
the currency
 
of the Loan
 
(or the
 
relevant part
 
of it)
 
and for
 
a period equal
 
in
length to the Interest Period of
 
the Loan (or the relevant
 
part of it) or Unpaid Sum
 
and which is as of
a day which is no more than 5 days before the Quotation Day.
Holding
 
Company
 
means,
 
in
 
relation
 
to
 
a
 
person,
 
any
 
other
 
person
 
in
 
respect
 
of
 
which
 
it
 
is
 
a
Subsidiary.
Increased
 
Costs
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
paragraph
 
(b)
 
of
 
clause
 
(
Increased
costs)
.
Insolvency Event
in relation to an entity means that the entity:
(a)
 
is dissolved (other than pursuant to a consolidation, amalgamation
 
or merger);
(b)
 
becomes insolvent or is unable to
 
pay its debts or fails or
 
admits in writing its inability generally
to pay its debts as they become due;
(c)
 
makes a
 
general assignment, arrangement
 
or composition with
 
or for
 
the benefit
 
of its
 
creditors;
(d)
 
institutes
 
or
 
has
 
instituted
 
against
 
it,
 
by
 
a
 
regulator,
 
supervisor
 
or
 
any
 
similar
 
official
 
with
primary
 
insolvency,
 
rehabilitative
 
or
 
regulatory
 
jurisdiction
 
over
 
it
 
in
 
the
 
jurisdiction
 
of
 
its
incorporation or organisation
 
or the jurisdiction
 
of its
 
head or home
 
office, a proceeding seeking
a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or
 
other similar
 
law affecting
 
creditors' rights,
 
or a
 
petition is
 
presented for
 
its winding-up
or liquidation by it or such regulator,
 
supervisor or similar official;
(e)
 
has instituted
 
against it
 
a proceeding
 
seeking a
 
judgment of
 
insolvency or
 
bankruptcy or
 
any
other
 
relief
 
under
 
any
 
bankruptcy
 
or
 
insolvency
 
law
 
or
 
other
 
similar
 
law
 
affecting
 
creditors'
rights, or a
 
petition is presented
 
for its winding
 
-up or liquidation,
 
and, in the
 
case of any
 
such
proceeding or petition instituted
 
or presented against it,
 
such proceeding or petition
 
is instituted
or presented by a person or entity not described in paragraph
 
(d) above and:
(i)
 
results in a judgment of insolvency or bankruptcy or the entry of an
 
order for relief or the
making of an order for its winding up or liquidation; or
(ii)
 
is not
 
dismissed,
 
discharged,
 
stayed
 
or restrained
 
in
 
each case
 
within 30
 
days
 
of the
institution or presentation thereof;
Indemnified Person
means:
(a)
 
each
 
Finance
 
Party,
 
each
 
Receiver,
 
any
 
Delegate
 
and
 
any
 
attorney,
 
agent
 
or
 
other
 
person
appointed by them under the Finance Documents;
(b)
 
each Affiliate of those persons; and
(c)
 
any
 
officers,
 
directors,
 
employees,
 
advisers,
 
representatives
 
or
 
agents
 
of
 
any
 
of
 
the
 
above
persons.
Insurance Notice
 
means, in relation
 
to a Ship,
 
a notice of
 
assignment in the
 
form scheduled
 
to the
Ship’s General Assignment or,
 
as the case may be, Deed of Covenant or in another
 
approved form.
Insurances
 
means, in relation to a Ship:
(a)
 
all policies and contracts of insurance; and
(b)
 
all entries in a protection and indemnity or war risks or
 
other mutual insurance association,
in the name of such Ship’s Owner or the joint names of its Owner and any other
 
person in respect of
or in
 
connection
 
with such
 
Ship and/or
 
its Earnings
 
and includes
 
all benefits
 
thereof (including
 
the
right to receive claims and to return of premiums).
Interest Period
 
means, in
 
relation to
 
the Loan
 
or part
 
of it,
 
each period
 
determined in
 
accordance
with
 
clause
 
(
Interest
 
Periods
)
 
and,
 
in
 
relation
 
to
 
an
 
Unpaid
 
Sum,
 
each
 
period
 
determined
 
in
accordance with clause
 
(
Default interest
).
Interpolated Historic Term SOFR
means, in relation to
 
the Loan or
 
any part of
 
it or any
 
Unpaid Sum,
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 5
 
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 the relevant part
 
of it) or the
 
relevant Unpaid
Sum; or
(ii)
 
if no such Term
 
SOFR is available for
 
a period which is
 
less than the Interest
 
Period of
the Loan (or
 
the relevant part
 
of it) or
 
the relevant Unpaid
 
Sum, SOFR for
 
a day which
is no more than 5
 
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 5 days
 
before the
Quotation Day) for the
 
shortest period (for
 
which Term
 
SOFR is available) which
 
exceeds the
Interest Period of the Loan (or the relevant part of it) or
 
the relevant Unpaid Sum.
Interpolated Term SOFR
means, in relation to the Loan
 
or any part of it
 
or any Unpaid Sum, 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 (as of 11am 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 the
relevant part of it) or the relevant Unpaid Sum; or
(ii)
 
if no such Term
 
SOFR is available for
 
a period which is
 
less than the Interest
 
Period of
the Loan (or the relevant part of it) or the relevant Unpaid Sum, SOFR for the day which
is two US Government Securities Business Days before the
 
Quotation Day; and
(b)
 
the applicable Term SOFR (as of
 
11am on the Quotation Day)
 
for the shortest
 
period (for which
Term
 
SOFR is available) which exceeds the Interest Period of the Loan (or the
 
relevant part of
it) or the relevant Unpaid Sum.
Inventory
 
of
 
Hazardous
 
Material
 
means,
 
in
 
relation
 
to
 
a
 
Mortgaged
 
Ship
 
and
 
each
 
other
 
Fleet
Vessel,
 
a statement of compliance
 
for that Mortgaged
 
Ship or (as the
 
case may be)
 
that other Fleet
Vessel
 
prepared
 
and
 
issued
 
in
 
accordance
 
with
 
the
 
requirements
 
of
 
the
 
Hong
 
Kong
 
International
Convention for the
 
Safe and Environmentally
 
Sound Recycling of
 
Ships, 2009 (HKC)
 
and/or the EU
Ship Recycling Regulation, 2013 (EU SRR) which includes a list of
 
any and all materials known to be
potentially hazardous utilized in the construction of that Mortgaged Ship or (as the case may be) that
other Fleet Vessel.
Last
 
Availability
 
Date
 
means
 
30
 
June
 
2023
 
(or
 
such
 
later
 
date
 
as
 
may
 
be
 
agreed
 
between
 
the
Borrowers and the Lenders).
Legal
 
Opinion
means
 
any
 
legal
 
opinion
 
delivered
 
to
 
the
 
Agent
 
under
 
clause
 
(
Conditions
 
of
Utilisation
)
.
Legal Reservations
means:
(a)
 
the principle that equitable remedies may
 
be granted or refused at
 
the discretion of a court and
the
 
limitation
 
of
 
enforcement
 
by
 
laws
 
relating
 
to
 
insolvency,
 
reorganisation
 
and
 
other
 
laws
generally affecting the rights of creditors;
(b)
 
the time barring of claims under the Limitation Act
 
1980 and the Foreign Limitation Periods Act
1984, the possibility that an
 
undertaking to assume liability for,
 
or indemnify a person against,
non-payment of UK stamp duty may be void and defences
 
of set-off or counterclaim; and
(c)
 
similar principles, rights and defences under the laws
 
of any Relevant Jurisdiction.
Lender
 
means:
(a)
 
any Original Lender; and
(b)
 
any bank, financial institution, trust, fund or other
 
entity which has become a Party as
 
a Lender
in accordance with clause
 
(
Changes to the Lenders
),
which
 
in
 
each
 
case
 
has
 
not
 
ceased
 
to
 
be
 
a
 
Party
 
as
 
such
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
this
Agreement.
Loan
 
means
 
the
 
loan
 
made
 
or
 
to
 
be
 
made
 
under
 
the
 
Facility
 
or
 
the
 
principal
 
amount
 
of
 
that
 
loan
outstanding for the time being.
Loss Payable
 
Clauses
 
means, in
 
relation to
 
a Ship,
 
the provisions
 
concerning
 
payment of
 
claims
under such Ship's
 
Insurances in the
 
form scheduled to
 
such Ship’s General
 
Assignment or Deed
 
of
Covenant or in another approved form.
Losses
 
means any
 
costs, expenses, payments,
 
charges, losses, demands,
 
liabilities, claims, actions,
proceedings, penalties, fines, damages, judgments, orders
 
or other sanctions.
Major Casualty
 
means any casualty to a vessel
 
for which the total insurance
 
claim, inclusive of any
deductible, exceeds or may exceed the Major Casualty
 
Amount.
Major Casualty
 
Amount
 
means, in
 
relation to
 
a Ship,
 
the amount
 
specified as
 
such in
(
Ship information
) against the name of such Ship or the equivalent in
 
any other currency.
Majority Lenders
means:
(a)
 
if no part of
 
the Loan is then outstanding, a
 
Lender or Lenders whose Commitments aggregate
more than 66 2/3 per cent of the Total
 
Commitments (or, if
 
the Total
 
Commitments have been
reduced to zero, aggregated more than 66 2/3 per
 
cent of the Total Commitments immediately
prior to that reduction); or
(b)
 
at any other time, a
 
Lender or Lenders whose
 
participations in the Loan aggregate
 
more than
66 2/3 per cent of the Loan.
Manager
means,
 
in relation
 
to each
 
Ship, 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 Pendelis 16, 175
64 Palaio
 
Faliro,
 
Greece
 
or 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 maintainting an office
 
at 350 Syngrou Avenue,
 
Kalithea, Greece,
or,
 
in each
 
case,
 
another
 
manager
 
appointed
 
as the
 
technical
 
and/or
 
commercial
 
manager
 
of that
Ship in accordance with clause 23.4 (
Manager
).
Manager's Undertaking
 
means, in relation
 
to a Ship, an
 
undertaking by any
 
Manager of such
 
Ship
to the Security Agent in the agreed form, including pursuant
 
to clause
 
(
Manager
).
Margin
 
means (but subject to clause
 
(
Margin reset;
 
mandatory prepayment
):
(a)
 
(subject to paragraph (b) below) two point two zero per
 
cent (2.20%) per annum; and
(b)
 
such
 
other
 
rate
 
per
 
annum
 
as
 
may
 
be
 
determined
 
to
 
be
 
the
 
Margin
 
from
 
time
 
to
 
time
 
in
accordance with the adjustment provisions of clause
 
(
Sustainability Margin Adjustment
).
Margin Reset Date
 
means, subject to clause
 
(
Business Days
), the date falling 48 Months after
the Utilisation Date.
New Margin
 
has the meaning ascribed to it in clause
 
(
Margin reset; mandatory prepayment
).
Market Disruption Rate
 
means the Reference Rate.
Material
 
Adverse
 
Effect
 
means,
 
in
 
the
 
reasonable
 
opinion
 
of
 
the
 
Majority
 
Lenders,
 
a
 
material
adverse effect on:
(a)
 
the business, operations,
 
property, performance, prospects or condition
 
(financial or otherwise)
of any Obligor or of the Group taken as a whole; or
(b)
 
the ability of an Obligor to perform its obligations under
 
any of the Finance Documents; or
(c)
 
the legality, validity
 
or enforceability of, or the effectiveness
 
or ranking of any Security Interest
granted or purporting to be granted pursuant to any of, the Finance Documents or the
 
rights or
remedies of any Finance Party under any of the Finance
 
Documents.
Minimum Value
 
means, at any
 
time, the amount
 
in dollars which
 
is at that
 
time 125
 
per cent of
 
the
amount which is the sum of (a) the Loan and (b) the Hedging
 
Exposure at that time.
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
 
paragraph (c)
 
below) if
 
the numerically
 
corresponding day
 
is not
 
a Business
 
Day,
that period shall end on the next Business Day in the calendar month in which that period is to
end (if there is one) or on the immediately preceding Business
 
Day (if there is not);
 
(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
 
preferred or, as
 
the case may be, priority,
 
mortgage of
the Ship in the
 
agreed form by
the relevant Owner in favour
 
of the Security Agent or, as the case
 
may
be, the Finance Parties.
Mortgage Period
 
means, in relation
 
to a Mortgaged
 
Ship, the period
 
from the date
 
the Mortgage over
that Ship
 
is executed
 
and registered
 
until the
 
date such
 
Mortgage is
 
released and
 
discharged or,
 
if
earlier, its Total
 
Loss Repayment Date.
Mortgaged Ship
 
means, at any relevant time, any Ship which
 
is subject to a Mortgage and/or whose
Earnings,
 
Insurances
 
and
 
Requisition
 
Compensation
 
are
 
subject
 
to
 
a
 
Security
 
Interest
 
under
 
the
Finance Documents.
New Lender
 
has the meaning given to that term in clause
 
(
Changes to the Lenders
).
Notifiable
 
Debt
 
Purchase
 
Transaction
 
has
 
the
 
meaning
 
given
 
to
 
that
 
term
 
in
 
clause
(
Disenfranchisement of Guarantor
Affiliates
).
Obligors
means the parties to
 
the Finance Documents (other than
 
Finance Parties) and and
Obligor
means any one of them.
 
Original
 
Financial
 
Statements
 
means
 
the
 
consolidated
 
audited
 
financial
 
statements
 
of
 
the
Guarantor for its financial year ended 31 December 2022.
exhibit450p15i0
Original Jurisdiction
 
means, in relation
 
to an Original Obligor, the
 
jurisdiction under whose laws
 
that
Obligor is incorporated as at the date of this Agreement or, in the case of any other Obligor, as at the
date on which that Obligor becomes an Obligor.
Original Obligor
 
means each
 
party to
 
this Agreement
 
and the
 
Original Security
 
Documents (other
than a Finance Party).
Original Security Documents
means:
(a)
 
the Mortgages over each of the Ships;
(b)
 
the Deeds of
 
Covenant in relation
 
to each of
 
the Ships in
 
respect of which
 
the Mortgage is
 
in
account current form;
(c)
 
the General Assignments
 
in relation to
 
each of
 
the Ships
 
in respect of
 
which the
 
Mortgage is
in preferred form;
(d)
 
any Charter Assignment in relation to any Ship’s Charter
 
Documents;
(e)
 
the Account Security in relation to each Account;
 
(f)
 
the Share Security in relation to each Borrower;
(g)
 
the Hedging Contract Security; and
(h)
 
each Manager's Undertaking by each Manager in relation
 
to each Ship.
Owner
 
means, in relation to a Ship,
 
the person specified against the name of
 
that Ship in
(
Ship information
).
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 Maritime Liens
 
means, in relation to any Mortgaged Ship:
(a)
 
any
 
ship
 
repairer's
 
or
 
outfitter's
 
possessory
 
lien
 
in
 
respect
 
of
 
the
 
Ship
 
for
 
an
 
amount
 
not
exceeding the Major Casualty Amount;
(b)
 
any lien on the
 
Ship for master's,
 
officer's or crew's
 
wages outstanding in
 
the ordinary course
of its trading;
 
(c)
 
any lien on the Ship for salvage;
 
and
(d)
 
any other
 
maritime lien
 
on the
 
Ship arising
 
in the
 
ordinary course
 
of business
 
of the
 
Ship or
created by operation
 
of law and,
 
in each such
 
case, securing obligations not
 
more than 30
 
days
overdue.
Permitted Security
 
Interests
means, in relation
 
to any
 
Mortgaged Ship,
any Security Interest
 
over
it which is:
(a)
 
granted by the Finance Documents; or
 
(b)
 
granted in connection with an Existing Facility Agreement but
 
only until the Utilisation Date; or
(c)
 
a Permitted Maritime Lien; or
(d)
 
is approved by the Majority Lenders.
Pollutant
 
means
 
and
 
includes
 
crude
 
oil
 
and
 
its
 
products,
 
any
 
other
 
polluting,
 
toxic
 
or
 
hazardous
substance and any other substance whose release into the environment is regulated or penalised by
Environmental Laws.
Poseidon Principles
has the meaning given to it in clause
 
(
Poseidon principles
).
Quasi-Security
 
has the meaning given to it in clause
 
(
General negative pledge
)
.
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 shall
 
be determined
by the Agent
 
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 Charged Property appointed under any relevant
 
Security Document.
Reference Rate
means, in relation to the Loan (or any relevant part of
 
it) or any Unpaid Sum:
(a)
 
the applicable Term
 
SOFR as of
 
11am
 
on the Quotation
 
Day and for
 
a period equal
 
in length
to the Interest Period of the Loan (or the relevant part of it)
 
or the relevant Unpaid Sum; or
(b)
 
as otherwise determined pursuant to clause
 
(
Unavailability of Term
 
SOFR
),
and if, in either case, that rate is less than zero, the Reference
 
Rate shall be deemed to be zero.
Reformed
 
Basel
 
III
 
means
 
the
 
agreements
 
contained
 
in
 
“Basel
 
III:
 
Finalising
 
post-crisis
 
reforms”
published
 
by
 
the
 
Basel
 
Committee
 
on
 
Banking
 
Supervision
 
in
 
December
 
2017,
 
as
 
amended,
supplemented or restated.
Reformed
 
Basel
 
III
 
Increased
 
Cost
 
means
 
an
 
Increased
 
Cost
 
which
 
is
 
attributable
 
to
 
the
implementation
 
or
 
application
 
of or
 
compliance
 
with
 
any
 
other law
 
or regulation
 
which
 
implements
Reformed
 
Basel
 
III
 
(whether
 
such
 
implementation,
 
application
 
or
 
compliance
 
is
 
by
 
a
 
government,
regulator, Finance Party or
 
any of its Affiliates.
Registry
 
means,
 
in
 
relation
 
to
 
each
 
Ship,
 
such
 
registrar,
 
commissioner
 
or
 
representative
 
of
 
the
relevant Flag State who is duly authorised and empowered to register the relevant Ship, the relevant
Owner's title to such Ship and the relevant Mortgage under the
 
laws of its Flag State.
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 an Obligor:
(a)
 
its Original Jurisdiction;
(b)
 
any jurisdiction where any Charged Property owned by
 
it is situated;
(c)
 
any jurisdiction where it conducts its business; and
(d)
 
any 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.
Relevant Person
 
means:
(a)
 
the Obligor and each Group Member; and
(b)
 
each of their directors, officers and employees.
Repayment Date
means, subject to clause
 
(
Business Days
):
(a)
 
the First Repayment Date;
(b)
 
each of
 
the dates
 
falling at
 
intervals of
 
3 Months
 
thereafter
 
up to
 
but not
 
including the
 
Final
Repayment Date; and
(c)
 
the Final Repayment Date.
Repeating Representations
 
means each of
 
the representations
 
set out in
 
clauses
 
(
Status
) to
clause
 
(
Centre
 
of
 
main
 
interests
 
and
 
establishments
), clause
 
(
Ownership
 
of
 
Charged
Property
),
 
clause
 
(
Deduction
 
of
 
Tax
),
 
clause
 
(
Other
 
Tax
 
Matters
),
 
clause
 
(
No
Default
), paragraph (b)
 
of clause
 
(
No breach of
 
laws
), paragraphs (b)
 
and (c) of
 
clause
(
Environmental matters
), clause
 
(
No immunity
) and clause
 
(
Sanctions
).
Representative
 
means any
 
delegate, agent,
 
manager,
 
administrator,
 
nominee, attorney,
 
trustee or
custodian.
Requisition Compensation
 
means, in
 
relation
 
to a
 
Ship, any
 
compensation
 
paid or
 
payable by
 
a
government entity for the requisition for title, confiscation or
 
compulsory acquisition of such Ship.
Resolution
 
Authority
 
means
 
any
 
body
 
which
 
has
 
authority
 
to
 
exercise
 
any
 
Write-down
 
and
Conversion Powers.
Restricted Party
means a person that is:
(a)
 
listed
 
on
 
any
 
Sanctions
 
List
 
or
 
targeted
 
by
 
Sanctions
 
(whether
 
designated
 
by
 
name
 
or
 
by
reason of being included in a class of person); or
(b)
 
located
 
in
 
or
 
incorporated
 
under
 
the
 
laws
 
of
 
any
 
country
 
or
 
territory
 
that
 
is
 
the
 
target
 
of
comprehensive, country-
 
or territory-wide Sanctions; or
(c)
 
directly
 
or
 
indirectly
 
owned
 
or
 
controlled
 
by,
 
or
 
acting
 
on
 
behalf,
 
at
 
the
 
direction,
 
or
 
for
 
the
benefit
 
of,
 
of
 
a
 
person
 
referred
 
to
 
in
 
paragraphs
 
(a)
 
and/or
 
(to
 
the
 
extent
 
relevant
 
under
Sanctions) (b) above.
Sanctions
means
 
any
 
applicable
 
(to
 
any
 
Relevant
 
Person
 
and/or
 
Finance
 
Party
 
as
 
the
 
context
provides)
 
laws,
 
regulations
 
or
 
orders
 
concerning
 
any
 
trade
 
economic
 
or
 
financial
 
sanctions
 
or
embargoes.
Sanctions Authority
means any
 
of the Norwegian
 
State, the
 
United Nations,
 
the European
 
Union,
the Member States
 
of the European
 
Union, the
 
United Kingdom,
 
the United
 
States of America,
 
and
any authority
 
acting on
 
behalf of
 
any of
 
them of
 
their respective
 
legislative, executive,
 
enforcement
and/or regulatory authorities or bodies acting in connection with
 
Sanctions.
 
Sanctions List
 
means:
(a)
 
the lists of
 
Sanctions designations and/or targets
 
maintained by any
 
Sanctions Authority and/or
(b)
 
any other Sanctions designation or target listed and/or
 
adopted by a Sanctions Authority,
 
in all cases, as amended, supplemented or replaced from time
 
to time.
Secured
 
Obligations
 
means
 
all
 
indebtedness
 
and
 
obligations
 
at
 
any
 
time
 
of
 
any
 
Obligor
 
to
 
any
Finance
 
Party
 
(whether
 
for
 
its
 
own
 
account
 
or
 
as
 
agent
 
or
 
trustee
 
for
 
itself
 
and/or
 
other
 
Finance
Parties) under, or related to,
 
the Finance Documents.
Security Agent
 
includes any
 
person as
 
may be
 
appointed as
 
such under
 
the Finance
 
Documents
and includes any separate trustee or co-trustee appointed under
 
clause
 
(
Additional trustees
).
Security Documents
 
means:
(a)
 
the Original Security Documents; and
(b)
 
any other
 
document as
 
may be
 
executed to
 
guarantee and/or
 
secure any
 
amounts owing
 
to
the Finance Parties under this Agreement or any other
 
Finance Document.
Security Interest
 
means a mortgage, charge, pledge, lien, assignment, trust, hypothecation or other
security
 
interest
 
of
 
any
 
kind
 
securing
 
any
 
obligation
 
of
 
any
 
person
 
or
 
any
 
other
 
agreement
 
or
arrangement having a similar effect.
Security Property
 
means:
(a)
 
the Transaction Security expressed to be granted in favour of the Security Agent as trustee for
the Finance Parties and all proceeds of that Transaction
 
Security;
(b)
 
all obligations
 
expressed
 
to
 
be undertaken
 
by any
 
Obligor
 
to pay
 
amounts
 
in
 
respect
 
of the
Secured Obligations
 
to the
 
Security Agent
 
as trustee
 
for the
 
Finance Parties
 
and secured
 
by
the Transaction Security
 
together with
 
all representations and
 
warranties expressed to
 
be given
by an Obligor in favour of the Security Agent as trustee
 
for the Finance Parties; and
(c)
 
any
 
other
 
amounts
 
or
 
property,
 
whether
 
rights,
 
entitlements,
 
choses
 
in
 
action
 
or
 
otherwise,
actual
 
or
 
contingent,
 
which
 
the
 
Security
 
Agent
 
is
 
required
 
by
 
the
 
terms
 
of
 
the
 
Finance
Documents to hold as trustee on trust for the Finance Parties.
Security Value
 
means, at any time, the amount in dollars
 
which, at that time, is the aggregate of (a)
the aggregate of the values (or, if less in relation to an individual Ship,
 
the maximum amount capable
of being secured by the Mortgage of
 
the relevant Ship) of
all of the Mortgaged Ships which
 
have not
then become a Total Loss and (b) the value
 
of any additional security then
 
held by the Security Agent
or any other
 
Finance Party provided
 
under clause
 
(
Minimum security value
)), in each
 
case as most
recently determined in accordance with this Agreement.
Selection Notice
means a
 
notice substantially
 
in the
 
form set
 
out in
Selection Notice
)
given in accordance with clause
 
(
Interest Periods
).
Share
 
Security
 
means,
 
in
 
relation
 
to
 
each
 
Borrower,
 
the
 
document
 
constituting
 
a
 
first
 
Security
Interest
 
in
 
respect
 
of
 
all
 
the
 
shares
 
of
 
such
 
Borrower
 
executed
 
by
 
the
 
Guarantor
 
in
 
favour
 
of
 
the
Security Agent in the agreed form.
Ship Representations
 
means each
 
of the representations
 
and warranties
 
set out
 
in clauses
(
Ship status
) and
 
(
Ship's employment
).
Ship A
means the Ship described as such in
Ship information
).
Ship B
means the Ship described as such in
Ship information
).
Ship C
means the Ship described as such in
Ship information
).
Ship D
means the Ship described as such in
Ship information
).
Ship E
means the Ship described as such in
Ship information
).
Ship F
means the Ship described as such in
Ship information
).
Ship G
means the Ship described as such in
Ship information
).
Ship H
means the Ship described as such in
Ship information
).
Ship I
means the Ship described as such in
Ship information
).
Ship J
means the Ship described as such in
Ship information
).
Ships
 
means each of the ships described in
Ship information
) (including each of Ship A,
Ship B, Ship C, Ship D, Ship E, Ship F,
 
Ship G, Ship H, Ship I and Ship J) and
 
Ship
 
means any one
of them.
SOFR
means
 
the
 
secured
 
overnight
 
financing
 
rate
 
(SOFR)
 
administered
 
by
 
the
 
Federal
 
Reserve
Bank of
 
New York
 
(or any
 
other person
 
which takes
 
over the
 
administration of
 
that rate)
 
published
(before any
 
correction,
 
recalculation
 
or republication
 
by the
 
administrator)
 
by the
 
Federal
 
Reserve
Bank of New York
 
(or any other person which takes over the publication of that
 
rate).
Spill
 
means any actual or threatened spill, release or discharge
 
of a Pollutant into the environment.
Subsidiary
 
of a person means any other person:
(a)
 
directly or indirectly controlled by such person; or
(b)
 
of whose dividends or distributions on ordinary voting share capital such person is
 
beneficially
entitled to receive more than 50 per cent,
and a
 
person is
 
a “
wholly-owned
 
Subsidiary
” of
 
another person
 
if it
 
has no
 
members except
 
that
other person
 
and that
 
other person’s
 
wholly-owned Subsidiaries
 
or persons
 
acting on
 
behalf of
 
that
other person or its wholly-owned Subsidiaries.
Sustainability
 
Certificate
has
 
the
 
meaning
 
given
 
to
 
it
 
in
Form
 
of
 
Sustainability
Certificate
).
Sustainability Margin Adjustment
has the meaning given to it in
Sustainability Margin
Adjustment
)
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).
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).
Total
 
Commitments
 
means the aggregate
 
of the Commitments,
 
being $100,000,000
 
at the date
 
of
this Agreement.
Total Loss
 
means, in relation to a vessel, its:
(a)
 
actual, constructive, compromised or arranged total loss;
 
or
(b)
 
requisition for title, confiscation or other compulsory acquisition
 
by a government entity; or
(c)
 
hijacking, piracy,
 
theft, condemnation,
 
capture, seizure,
 
arrest or
 
detention for
 
more than
 
30
days.
Total Loss Date
 
means, in relation to the Total
 
Loss of a vessel:
(a)
 
in the case of an
 
actual total loss, the
 
date it happened or,
 
if such date is not
 
known, the date
on which the vessel was last reported;
(b)
 
in the case of a constructive, compromised, agreed or
 
arranged total loss, the earliest of:
(i)
 
the date notice of abandonment of the vessel is given to its
 
insurers; or
(ii)
 
if the insurers do not admit such
 
a claim, the date later determined by
 
a competent court
of law to have been the date on which the total loss happened;
 
or
(iii)
 
the date upon
 
which a binding agreement
 
as to such
 
compromised or arranged total
 
loss
has been entered into by the vessel's insurers;
(c)
 
in the
 
case of
 
a requisition for
 
title, confiscation or
 
compulsory acquisition, the
 
date it happened;
and
(d)
 
in the
 
case
 
of
 
hijacking,
 
piracy,
 
theft,
 
condemnation,
 
capture,
 
seizure
 
or detention,
 
the
 
date
30 days after the date upon which it happened.
Total Loss Repayment Date
 
means, where a Mortgaged Ship has become a Total
 
Loss, the earlier
of:
(a)
 
the date upon which insurance proceeds or Requisition Compensation for such Total Loss are
paid by insurers or the relevant government entity; or
(b)
 
the date falling 150 days after its Total
 
Loss Date.
 
Transaction Document
 
means:
(a)
 
each of the Finance Documents; and
 
(b)
 
any Charter Document;
Transaction Security
means the Security Interests created
 
or evidenced or expressed to
 
be created
or evidenced under or pursuant to the Security Documents.
Transfer
 
Certificate
 
means
 
a
 
certificate
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
Form
 
of
Transfer Certificate
) or any other form agreed between the Agent and the
 
Borrowers.
Transfer Date
 
means, in relation to an assignment pursuant to a Transfer
 
Certificate, the later of:
(a)
 
the proposed Transfer Date specified
 
in the Transfer Certificate; and
(b)
 
the date on which the Agent executes the Transfer
 
Certificate.
Treasury
 
Transaction
 
means any
 
derivative transaction
 
entered into
 
in connection
 
with protection
against or benefit from fluctuation in any rate or price.
Unpaid
 
Sum
 
means
 
any
 
sum
 
due
 
and
 
payable
 
but
 
unpaid
 
by
 
an
 
Obligor
 
under
 
the
 
Finance
Documents.
US
 
means the United States of America.
US Tax Obligor
 
means:
(a)
 
a Borrower which is resident for tax purposes in the US; or
(b)
 
an Obligor
 
some
 
or all
 
of
 
whose payments
 
under
 
the Finance
 
Documents
 
are from
 
sources
within the US for US federal income tax purposes.
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.
Utilisation
means the making of the Loan.
Utilisation Date
 
means the date on which the Utilisation is to be
 
made.
Utilisation
 
Request
 
means
 
a
 
notice
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
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 in a
 
member state
of
 
the
 
European
 
Union
 
in
 
substitution
 
for,
 
or
 
levied
 
in
 
addition
 
to,
 
such
 
tax
 
referred
 
to
 
in
paragraphs (a) or (b) above, or imposed elsewhere.
1.2
 
Construction
(a)
 
Unless a contrary indication appears, a reference in any
 
of the Finance Documents to:
(i)
 
Sections, clauses and Schedules are to be construed as references to the
 
Sections and
clauses of, and
 
the Schedules to,
 
the relevant
 
Finance Document
 
and references
 
to a
Finance Document include its Schedules;
(ii)
 
a
Finance
 
Document
 
or
 
any
 
other
 
agreement
 
or
 
instrument
 
is
 
a
 
reference
 
to
 
that
Finance
 
Document
 
or
 
other
 
agreement
 
or
 
instrument
 
as
 
it
 
may
 
from
 
time
 
to
 
time
 
be
amended, restated, novated or replaced, however fundamentally;
(iii)
 
words importing the plural shall include the singular and
 
vice versa;
(iv)
 
a time of day are to London time;
(v)
 
any person includes its successors in title, permitted assignees
 
or transferees;
(vi)
 
a document
in agreed form
 
means:
(A)
 
where
 
a
 
Finance
 
Document
 
has
 
already
 
been
 
executed
 
by
 
all
 
of
 
the
 
relevant
parties, such Finance Document in its executed form;
(B)
 
prior to
 
the execution of
 
a Finance Document,
 
the form of
 
such Finance Document
separately agreed in writing between the Agent
 
and the Borrowers as the form in
which that Finance Document
 
is to be executed
 
or another form
 
approved at the
request of the Borrowers or,
 
if not so agreed or approved, is in the form specified
by the Agent;
(vii)
 
two or
 
more persons
 
are
acting in concert
 
if pursuant
 
to an
 
agreement or
 
understanding
(whether formal or informal) they actively co-operate, through the acquisition (directly or
indirectly) of
 
shares, partnership
 
interest or
 
units or
 
limited liability
 
company interest
 
in
an entity
 
by any
 
of them,
 
either directly
 
or indirectly,
 
to obtain
 
or consolidate
 
control of
that entity;
(viii)
approved by the
 
Majority Lenders
 
or
approved by the
 
Lenders
 
means approved in
writing by
 
the Agent
 
acting on
 
the instructions
 
of the
 
Majority Lenders
 
or,
 
as the
 
case
may be,
 
all of
 
the Lenders
 
(on such
 
conditions as
 
they may
 
respectively impose)
 
and
otherwise
approved
 
means approved in writing by the Agent (on
 
such conditions as the
Agent may impose) and
approval
 
and
approve
 
shall be construed accordingly;
(ix)
assets
 
includes present and future properties, revenues and rights of every description;
(x)
charter commitment
 
means, in relation to a vessel, any charter or contract for the use,
employment
 
or
 
operation
 
of
 
that
 
vessel
 
or
 
the
 
carriage
 
of
 
people
 
and/or
 
cargo
 
or
 
the
provision
 
of
 
services
 
by
 
or from
 
it
 
and
 
includes
 
any agreement
 
for pooling
 
or sharing
income derived from any such charter or contract;
(xi)
control
 
of an entity means:
(A)
 
the
 
power
 
(whether
 
by
 
way
 
of
 
ownership
 
of
 
shares,
 
proxy,
 
contract,
 
agency
 
or
otherwise) to:
(1)
 
cast,
 
or
 
control
 
the
 
casting
 
of,
 
more
 
than
 
50
 
per
 
cent
 
of
 
the
 
maximum
number of votes that might be cast at a general meeting
 
of that entity; or
(2)
 
appoint or
 
remove all,
 
or the
 
majority,
 
of the
 
directors
 
or other
 
equivalent
officers of that entity; or
(3)
 
give directions
 
with
 
respect
 
to the
 
operating
 
and
 
financial
 
policies
 
of that
entity with which the
 
directors or other equivalent
 
officers of that
 
entity are
obliged to comply; and/or
(B)
 
the holding beneficially of
 
more than 50 per
 
cent of the issued
 
share capital of that
entity
 
(excluding
 
any
 
part
 
of
 
that
 
issued
 
share
 
capital
 
that
 
carries
 
no
 
right
 
to
participate beyond a specified
 
amount in a distribution
 
of either profits or
 
capital)
(and,
 
for
 
this
 
purpose,
 
any
 
Security
 
Interest
 
over
 
share
 
capital
 
shall
 
be
disregarded in determining the beneficial ownership of
 
such share capital);
and
controlled
 
shall be construed accordingly;
(xii)
 
a Lender's “
cost of funds
” in relation to its
 
participation in the Loan (or any
 
relevant part
of it)
 
is a
 
reference
 
to
 
the
 
average cost
 
(determined
 
either on
 
an
 
actual
 
or a
 
notional
basis) which
 
that Lender
 
would incur
 
if it were
 
to fund,
 
from whatever
 
source(s) it
 
may
reasonably select,
 
an amount
 
equal to
 
the amount
 
of that
 
participation in
 
the Loan
 
(or
any relevant part of it) for a period equal
 
in length to the Interest Period for the Loan (or
the relevant part of it);
(xiii)
 
the term
disposal
 
or
dispose
 
means a sale, transfer or
 
other disposal (including by way
of lease or
 
loan but not including
 
by way of
 
loan of money)
 
by a person of
 
all or part
 
of
its
 
assets,
 
whether
 
by
 
one
 
transaction
 
or
 
a
 
series
 
of
 
transactions
 
and
 
whether
 
at
 
the
same time or over a period of time, but not the creation
 
of a Security Interest;
(xiv)
 
the
equivalent
 
of an amount specified in a particular
 
currency (the
specified currency
amount
) shall be construed as a reference to the amount of the other relevant currency
which
 
can
 
be
 
purchased
 
with
 
the
 
specified
 
currency
 
amount
 
in
 
the
 
London
 
foreign
exchange market
 
at or
 
about 11
 
a. m.
 
on the
 
date the
 
calculation falls
 
to be
 
made for
spot delivery, as conclusively
 
determined by the Agent (with the relevant exchange rate
of any such purchase being the
Agent's spot rate of exchange
);
(xv)
 
a
government entity
 
means any government, state or agency of a state;
(xvi)
 
a
group of Lenders
 
or a
group of Finance Parties
 
includes all the Lenders or
 
(as the
case may be) all the Finance Parties;
(xvii)
 
a
guarante
e means (other
 
than in clause
 
(
Guarantee and indemnity
)) any guarantee,
letter of
 
credit, bond,
 
indemnity or
 
similar assurance against
 
loss, or
 
any obligation,
 
direct
or indirect, actual or contingent, to
 
purchase or assume any indebtedness of any
 
person
or to make an
 
investment in or loan
 
to any person or
 
to purchase assets
 
of any person
where, in each case, such obligation is assumed in order
 
to maintain or assist the ability
of such person to meet its indebtedness;
(xviii)
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;
(xix)
 
an
obligation
 
means any duty, obligation
 
or liability of any kind;
(xx)
 
something
 
being
 
in
 
the
 
ordinary
 
course
 
of
 
business
 
of
 
a
 
person
 
means
 
something
that is
 
in the
 
ordinary
 
course
 
of that
 
person's current
 
day-to-day operational
 
business
(and
 
not
 
merely
 
anything
 
which
 
that
 
person
 
is
 
entitled
 
to
 
do
 
under
 
its
 
Constitutional
Documents);
(xxi)
pay or repay
 
in clause
 
(
Business restrictions
) includes by
 
way of set-off, combination
of accounts or otherwise;
(xxii)
 
a
person
 
includes any individual, firm, company,
 
corporation, government entity or
 
any
association, trust,
 
joint venture,
 
consortium, partnership
 
or other
 
entity (whether
 
or not
having separate legal personality);
(xxiii)
 
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
 
and,
 
in
 
relation
 
to
 
any
 
Lender,
 
includes
 
(without
 
limitation)
 
any
 
Basel
Regulation which is applicable to that Lender;
(xxiv)
right
 
means any right, privilege, power
 
or remedy,
 
any proprietary interest in
 
any asset
and any
 
other interest
 
or remedy
 
of any
 
kind, whether
 
actual or
 
contingent, present
 
or
future, arising under contract or law,
 
or in equity;
(xxv)
trustee, fiduciary
 
and
fiduciary
 
duty has in each case the meaning given to such term
under applicable law;
(xxvi)
 
(i)
 
the
liquidation
,
winding
 
up
,
dissolution
,
 
or
administration
 
of
 
person
 
or
 
(ii)
 
a
receiver
 
or
administrative
 
receiver
 
or
administrator
 
in
 
the
 
context
 
of
 
insolvency
proceedings or
 
security enforcement
 
actions in
 
respect of
 
a person
 
shall be
 
construed
so
 
as
 
to
 
include
 
any
 
equivalent
 
or
 
analogous
 
proceedings
 
or
 
any
 
equivalent
 
and
analogous person
 
or appointee
 
(respectively) under
 
the law
 
of the
 
jurisdiction in
 
which
such
 
person
 
is
 
established
 
or
 
incorporated
 
or
 
any
 
jurisdiction
 
in
 
which
 
such
 
person
carries on business including (in
 
respect of proceedings) the seeking
 
or occurrences of
liquidation,
 
winding-up,
 
reorganisation,
 
dissolution,
 
administration,
 
arrangement,
adjustment, protection or relief of debtors;
 
(xxvii) a
provision of law
 
is a reference to that provision as amended or re-enacted from
 
time
to time; and
(xxviii)
 
a
wholly-owned subsidiary
 
has the meaning given
 
to that term
 
in section 1159
 
of the
Companies Act 2006.
(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)
 
Where
 
in
 
this
 
Agreement
 
a
 
provision
 
includes
 
a
 
monetary
 
reference
 
level
 
in
 
one
 
currency,
unless a
 
contrary indication
 
appears, such
 
reference level
 
is intended
 
to apply
 
equally to
 
its
equivalent
 
in
 
other
 
currencies
 
as
 
of
 
the
 
relevant
 
time
 
for
 
the
 
purposes
 
of
 
applying
 
such
reference level to any other currencies.
 
(d)
 
Section, clause and Schedule headings are for ease of
 
reference only.
 
(e)
 
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.
 
(f)
 
A Default (other than an Event of Default) is
 
continuing
 
if it has not been remedied or waived
in writing and an Event of Default is
continuing
 
if it has not been waived in writing.
1.3
 
Currency symbols and definitions
$
,
USD
 
and
dollars
 
denote the lawful currency of the United States of America.
 
1.4
 
Third party rights
(a)
 
Unless expressly provided to
 
the contrary in a Finance
 
Document for the benefit
 
of a Finance
Party or another Indemnified
 
Person,
a person who is not a
 
party to a Finance Document
 
has
no
 
right
 
under
 
the
 
Contracts
 
(Rights
 
of
 
Third
 
Parties)
 
Act
 
1999
 
(the
Third
 
Parties
 
Act
)
 
to
enforce or enjoy the benefit of any term of the relevant Finance
 
Document.
 
(b)
 
Any Finance Document
 
may be rescinded
 
or varied by
 
the parties to
 
it without the
 
consent of
any person who is not a party to it (unless otherwise provided
 
by this Agreement).
 
(c)
 
An Indemnified Person
 
who is not
 
a party to
 
a Finance Document
 
may only enforce
 
its rights
under that
 
Finance
 
Document
 
through
 
a Finance
 
Party
 
and if
 
and to
 
the extent
 
and in
 
such
manner as the Finance Party may determine.
 
1.5
 
Finance Documents
Where
 
any
 
other
 
Finance
 
Document
 
provides
 
that
 
this
 
clause
 
shall
 
apply
 
to
 
that
 
Finance
Document, any other
 
provision of this
 
Agreement which,
 
by its terms,
 
purports to apply
 
to all or
 
any
of the Finance Documents and/or any Obligor shall
 
apply to that Finance Document as if set out
 
in it
but with all necessary changes.
 
1.6
 
Conflict of documents
The terms of the Finance Documents (other than the Hedging Contracts and
 
other than as relates to
the creation and/or perfection of security)
 
are subject to the terms
 
of this Agreement and, in
 
the event
of any conflict between any provision of this Agreement and any provision of any Finance
 
Document
(other
 
than
 
the
 
Hedging
 
Contracts
 
and
 
other
 
than
 
in
 
relation
 
to
 
the
 
creation
 
and/or
 
perfection
 
of
security) the provisions of this Agreement shall prevail.
 
 
Section 2 -
 
The Facility
2
 
The Facility
2.1
 
The Facility
Subject to
 
the terms
 
of this
 
Agreement,
 
the
 
Lenders
 
make available
 
to the
 
Borrowers
 
a term
 
loan
facility in an aggregate amount equal to the Total
 
Commitments.
 
2.2
 
Finance Parties' rights and obligations
(a)
 
The obligations of
 
each Finance Party
 
under the Finance
 
Documents are several.
 
Failure by
a Finance
 
Party to
 
perform its
 
obligations under
 
the Finance
 
Documents does
 
not affect
 
the
obligations of any other Party under the Finance Documents.
 
No Finance Party is responsible
for the obligations of any other Finance Party under the
 
Finance Documents.
 
(b)
 
The
 
rights
 
of
 
each
 
Finance
 
Party
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
 
Documents
 
are
separate
 
and
 
independent
 
rights
 
and
 
any
 
debt
 
arising
 
under
 
the
 
Finance
 
Documents
 
to
 
a
Finance
 
Party
 
from
 
an
 
Obligor
 
is
 
a
 
separate
 
and
 
independent
 
debt
 
in
 
respect
 
of
 
which
 
a
Finance Party
 
shall be
 
entitled to
 
enforce
 
its rights
 
in accordance
 
with
 
paragraph
 
(c) below.
The
 
rights
 
of
 
each
 
Finance
 
Party
 
include
 
any
 
debt
 
owing
 
to
 
that
 
Finance
 
Party
 
under
 
the
Finance Documents and, for the avoidance of doubt, any part of the Loan
 
or any other amount
owed by an
 
Obligor which relates to
 
a Finance Party's participation in
 
a Facility or its
 
role under
a Finance Document (including any
 
such amount payable to the
 
Agent on its behalf) is a
 
debt
owing to that Finance Party by that Obligor.
 
(c)
 
A Finance
 
Party may,
 
except
 
as specifically
 
provided in
 
the Finance
 
Documents,
 
separately
enforce its rights under or in connection with the Finance
 
Documents.
 
2.3
 
Borrowers' rights and obligations
(a)
 
The obligations
 
of
 
each
 
Borrower
 
under
 
this
 
Agreement
 
are
 
joint
 
and
 
several.
 
Failure
 
by a
Borrower to perform its obligations
 
under this Agreement shall constitute
 
a failure by all of the
Borrowers.
 
(b)
 
Each Borrower irrevocably and unconditionally jointly and severally
 
with each other Borrower:
(i)
 
agrees that it is responsible for the performance of the obligations of each
 
other Borrower
under this Agreement;
(ii)
 
acknowledges and agrees that
 
it is a
 
principal and original debtor
 
in respect of all
 
amounts
due from the Borrowers under this Agreement; and
(iii)
 
agrees
 
with
 
each
 
Finance
 
Party
 
that,
 
if
 
any
 
obligation
 
of
 
another
 
Borrower
 
under
 
this
Agreement
 
is
 
or
 
becomes
 
unenforceable,
 
invalid
 
or
 
illegal
 
for
 
any
 
reason
 
it
 
will,
 
as
 
an
independent and primary
 
obligation, indemnify that
 
Finance Party immediately
 
on demand
against any and
 
all Losses it
 
incurs as a
 
result of another Borrower
 
not paying any amount
which would,
 
but for
 
such
 
unenforceability,
 
invalidity
 
or illegality,
 
have been
 
payable by
that other Borrower under this
 
Agreement. The amount payable under this
 
indemnity shall
be equal
 
to the
 
amount which
 
that Finance
 
Party would
 
otherwise have
 
been entitled
 
to
recover.
 
(c)
 
The obligations
 
of each
 
Borrower under
 
the Finance
 
Documents shall
 
continue until all
 
amounts
which may
 
be or
 
become payable
 
by the
 
Borrowers under
 
or in
 
connection with
 
the Finance
Documents have been irrevocably and unconditionally paid or discharged in full, regardless
 
of
any intermediate payment or discharge in whole or in
 
part.
 
(d)
 
If any discharge,
 
release or arrangement
 
(whether in respect
 
of the obligations
 
of a Borrower
or any
 
security for
 
those obligations
 
or otherwise)
 
is made
 
by a
 
Finance Party
 
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
 
Borrowers under this
 
Agreement will continue or
 
be reinstated as
 
if the discharge,
release or arrangement had not occurred.
 
(e)
 
The obligations
 
of each
 
Borrower under
 
the Finance
 
Documents shall
 
not be
 
affected
 
by an
act,
 
omission,
 
matter
 
or
 
thing
 
which,
 
but
 
for
 
this
 
clause
 
(whether
 
or
 
not
 
known
 
to
 
it
 
or
 
any
Finance
 
Party),
 
would
 
reduce,
 
release
 
or
 
prejudice
 
any
 
of
 
its
 
obligations
 
under
 
the
 
Finance
Documents including:
(i)
 
any time, waiver or
 
consent granted to, or
 
composition with, any Obligor
 
or other person;
(ii)
 
the release of any other Obligor or
 
any other person under the terms of any
 
composition
or arrangement with any creditor of any other Obligor;
(iii)
 
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 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;
(iv)
 
any incapacity or lack of power, authority or legal personality of or dissolution or change
in the members or status of an Obligor or any other person;
(v)
 
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;
(vi)
 
any
 
unenforceability,
 
illegality
 
or
 
invalidity
 
of
 
any
 
obligation
 
of
 
any
 
person
 
under
 
any
Finance Document or any other document or security; or
(vii)
 
any insolvency or similar proceedings.
 
(f)
 
Each Borrower waives any right it may have of
 
first requiring any Finance Party (or any trustee
or
 
agent
 
on
 
its
 
behalf)
 
to
 
proceed
 
against
 
or
 
enforce
 
any
 
other
 
rights
 
or
 
security
 
or
 
claim
payment from
 
any person
 
before claiming
 
from that
 
Borrower under
 
any Finance
 
Document.
 
This
 
waiver
 
applies
 
irrespective
 
of
 
any
 
law
 
or
 
any
 
provision
 
of
 
a
 
Finance
 
Document
 
to
 
the
contrary.
 
(g)
 
After cancellation
 
of the Total
 
Commitments in
 
accordance with
 
clause
(Illegality)
, clause
 
(
Automatic
 
cancellation
)
or
 
the
 
giving
 
of
 
notice
 
under
 
paragraph
 
(a)
 
of
 
clause
 
31.23
(Acceleration),
then, until all amounts which may be or become payable by the Obligors under
or in connection with
 
the Finance Documents
 
have been irrevocably
 
and unconditionally paid
or discharged in full, each Finance Party (or any trustee or
 
agent on its behalf) may:
(i)
 
refrain from applying
 
or enforcing any other
 
moneys, security or
 
rights held or received
by that Finance Party (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 no Borrower will be entitled to the benefit of the same;
and
(ii)
 
hold in an interest-bearing suspense account any money received
 
from any Borrower or
on account of any Borrower's liability under any Finance Document.
 
(h)
 
Until all amounts which may be
 
or become payable by the Obligors under
 
or in connection with
the
 
Finance
 
Documents
 
have
 
been
 
irrevocably
 
paid
 
in
 
full
 
and
 
unless
 
the
 
Agent
 
otherwise
directs (on
 
such terms
 
as it
 
may require),
 
no Borrower
 
shall exercise
 
any rights
 
which it
 
may
have by reason of performance by it of its obligations under
 
the Finance Documents:
(i)
 
to be indemnified by another Obligor;
(ii)
 
to
 
claim
 
any
 
contribution
 
from
 
any
 
other
 
Obligor
 
or
 
any
 
guarantor
 
of
 
any
 
Obligor's
obligations under the Finance Documents;
 
(iii)
 
to take the benefit (in whole
 
or in part and whether
 
by way of subrogation or
 
otherwise)
of any rights
 
of the Finance
 
Parties under the
 
Finance Documents
 
or of any
 
guarantee
or
 
security
 
taken
 
pursuant
 
to,
 
or
 
in
 
connection
 
with,
 
the
 
Finance
 
Documents
 
by
 
any
Finance Party;
(iv)
 
to
 
bring
 
legal
 
or
 
other
 
proceedings
 
for
 
an
 
order
 
requiring
 
any
 
Obligor
 
to
 
make
 
any
payment, or perform any obligation, in respect of
 
which that Borrower is liable under this
Agreement or any of the other Finance Documents;
(v)
 
to exercise any right of set-off against any
 
other Obligor; and/or
(vi)
 
to claim or
 
prove as a
 
creditor of any
 
other Obligor in
 
competition with any
 
Finance Party.
 
(i)
 
If
 
a
 
Borrower
 
receives
 
any
 
benefit,
 
payment
 
or
 
distribution
 
in
 
relation
 
to
 
such
 
rights
 
it
 
will
promptly
 
pay
 
an
 
equal
 
amount
 
to
 
the
 
Agent
 
for
 
application
 
in
 
accordance
 
with
 
clause
(Payment mechanics)
.
 
This only
 
applies until
 
all amounts
 
which may
 
be or
 
become payable
by the Obligors
 
under or in
 
connection with the
 
Finance Documents have been
 
irrevocably paid
in full.
 
3
 
Purpose
3.1
 
Purpose
(a)
 
The
 
Borrowers
 
shall
 
apply
 
all
 
amounts
 
borrowed
 
under
 
the
 
Facility
 
in
 
accordance
 
with
 
this
clause
.
 
(b)
 
The Total
 
Commitments
 
shall be made available to the Borrowers
 
for the purpose of assisting
the Borrowers to refinance in full all amounts owing under the Existing Facility Agreements
 
or,
if
 
and
 
to
 
the
 
extent
 
that
 
there
 
is
 
any
 
surplus
 
after
 
such
 
refinancing,
 
for
 
general
 
corporate
purposes of the Group.
3.2
 
Monitoring
No Finance
 
Party is
 
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 any Utilisation Request and the Lenders will not be obliged to comply
with
 
clause
 
(
Lenders’
 
participation
)
 
in
 
relation
 
to
 
any
 
Utilisation,
 
unless
 
the
 
Agent,
 
or
 
its
 
duly
authorised representative,
 
has received
 
all of
 
the documents
 
and other
 
evidence listed
 
in Part
 
1 of
Conditions precedent to any Utilisation
) in form and substance satisfactory to the Agent.
 
4.2
 
Ship and security conditions precedent
The Total
 
Commitments
 
may only
 
be borrowed
 
under this
 
Agreement if
 
on or
 
before the
 
Utilisation
the Agent, or
 
its duly authorised
 
representative, has received
 
all of the
 
documents and evidence
 
listed
in Part 2
 
of
Ship and security
 
conditions precedent
) in form
 
and substance satisfactory
to the Agent.
4.3
 
Notice of satisfaction of conditions
The Agent
 
shall notify
 
the Lenders
 
and the
 
Borrowers promptly
 
after receipt
 
by it
 
of the
 
documents
and evidence referred
 
to in this
 
clause
 
in form and
 
substance satisfactory
 
to it.
 
Other than to
 
the
extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives any
such notification,
 
the Lenders
 
authorise (but
 
do not require)
 
the Agent
 
to give that
 
notification.
 
The
Agent shall not be liable for any damages,
 
costs or losses whatsoever as a
 
result of giving any such
notification.
 
4.4
 
Further conditions precedent
The Lenders will
 
only be obliged
 
to comply
 
with clause
(Lenders' participation)
in respect of
 
the
Utilisation if on the date of the Utilisation Request and on the
 
proposed Utilisation Date:
(a)
 
no Default is continuing or would result from the proposed
 
Utilisation;
(b)
 
all of the representations set out in clause
(Representations)
 
are true;
 
(c)
 
no events, facts,
 
conditions or circumstances
 
shall exist or
 
have arisen or
 
occurred (and neither
the
 
Agent
 
nor
 
any
 
Lender
 
shall
 
have
 
become
 
aware
 
of
 
other
 
events,
 
facts,
 
conditions
 
or
circumstances not
 
previously known
 
to it),
 
which the
 
Agent (acting
 
on the
 
instructions of
 
the
Majority
 
Lenders)
 
shall
 
determine,
 
have
 
had
 
or
 
could
 
reasonably
 
be
 
expected
 
to
 
have,
 
a
Material Adverse Effect; and
 
(d)
 
no Total
 
Loss has occurred in relation to any Ship.
4.5
 
Waiver of conditions precedent
The conditions in
 
this clause
 
are inserted solely
 
for the benefit
 
of the Finance
 
Parties and may
 
be
waived on
 
their behalf
 
in whole
 
or in
 
part and
 
with or
 
without conditions
 
by the
 
Agent acting
 
on the
instructions of the Majority Lenders.
 
Section 3 -
 
Utilisation
5
 
Utilisation
5.1
 
Delivery of a Utilisation Request
A Borrower
 
may utilise
 
the Facility
 
by delivery
 
to the
 
Agent of
 
a duly
 
completed Utilisation
 
Request
not later than 9:30 a. m. three Business Days before
 
the proposed Utilisation Date.
 
5.2
 
Completion of a Utilisation Request
(a)
 
A Utilisation
 
Request is
 
irrevocable and
 
will not
 
be regarded
 
as having
 
been duly
 
completed
unless:
(i)
 
the proposed Utilisation Date is a Business
 
Day falling on or before the Last Availability
Date; and
(ii)
 
the
 
currency
 
and
 
amount
 
of
 
the
 
Utilisation
 
comply
 
with
 
clause
 
(
Currency
 
and
amount
);
(iii)
 
the proposed Interest Period complies with clause
 
(
Interest Periods
); and
(iv)
 
it
 
identifies
 
the
 
purpose
 
for
 
the
 
Utilisation
 
and
 
that
 
purpose
 
complies
 
with
 
clause
(
Purpose
).
(b)
 
The Total
 
Commitments
 
may only be drawn down in a single amount in one Utilisation.
5.3
 
Currency and amount
(a)
 
The currency specified in the Utilisation Request must be dollars.
 
(b)
 
The total amount available and advanced under the Facility shall
 
not exceed the lower of:
(i)
 
the Total
 
Commitments; and
(ii)
 
the amount in dollars which is equal to 55%
 
of the aggregate of the market values of all
the Ships as
 
determined pursuant
 
to the valuations
 
of the Ships
 
obtained under
 
Part 2
of
Conditions precedent
).
5.4
 
Lenders' participation
(a)
 
If
 
the
 
conditions
 
set
 
out
 
in
 
this
 
Agreement
 
have
 
been
 
met,
 
each
 
Lender
 
shall
 
make
 
its
participation in the Loan available by the Utilisation Date through
 
its Facility Office.
 
(b)
 
The amount of each Lender's participation in the Loan will be equal to the
 
proportion borne by
its Available Commitment to the Available
 
Facility immediately prior to making the Loan.
 
(c)
 
The Agent shall
 
promptly notify each
 
Lender of the
 
amount of the
 
Loan and the
 
amount of its
participation in the Loan, in each case by 11:00
 
a. m.
 
on the relevant Quotation Day.
 
(d)
 
The Agent shall pay all amounts received by it in respect of the
 
Loan (and its own participation
in it,
 
if any)
 
to the
 
Borrowers
 
or the
 
account of
 
any of
 
them or
 
to ABN
 
AMRO Bank
 
N.V.
 
as
agent of
 
the lenders
 
in respect
 
of the
 
Existing Agreements,
 
in each
 
case in
 
accordance with
the instructions contained in the Utilisation Request.
 
5.5
 
Prepositioning of funds
 
(a)
 
Notwithstanding that the
 
Borrowers may have
 
not yet satisfied
 
all of the
 
conditions precedent
set out
 
in Schedule
 
3 (
Conditions Precedent
), in
 
order to
 
facilitate the
 
refinancing of the
 
Existing
Indebtedness, and provided that:
(i)
 
the Borrowers have
 
submitted a Utilisation Request
 
in respect of
 
the Loan in
 
accordance
with this Clause 5.5 (
Prepositioning of funds
);
 
(ii)
 
the Borrowers have satisfied the conditions precedent set out
 
in paragraphs 1, 3, 4, 5(a)
and 6 of Part 1 of Schedule 3 (
Conditions Precedent
); and
(iii)
 
in
 
the
 
opinion
 
of
 
the
 
Agent
 
(acting
 
on
 
the
 
instructions
 
of
 
the
 
Majority
 
Lenders)
 
the
Borrowers
 
are
 
reasonably
 
likely
 
to
 
satisfy
 
all
 
remaining
 
and
 
outstanding
 
conditions
precedent set
 
out
 
in Part
 
1 and
 
Part 2
 
of Schedule
 
3 (
Conditions
 
Precedent
) within
 
5
Business Days from
 
the Utilisation Date
 
and in any
 
event on or before
 
the Release (as
defined in Clause 5.5(b)),
the
 
Lenders
 
(following
 
a
 
decision
 
made
 
by
 
the
 
Majority
 
Lenders)
 
may,
 
subject
 
to
 
the
 
other
terms and
 
conditions of
 
this Clause
 
5.5 (
Prepositioning of
 
funds
) and
 
the other
 
provisions of
this
 
Agreement,
 
make
 
the
 
Loan
 
available
 
on
 
the
 
date
 
specified
 
in
 
the
 
relevant
 
Utilisation
Request,
 
being
 
the
 
date
 
on
 
which
 
the
 
relevant
 
part
 
of
 
the
 
Existing
 
Indebtedness
 
is
 
agreed
(between
 
the
 
Borrowers
 
and
 
the
 
Agent
 
of
 
Existing
 
Indebtedness)
 
to
 
be
 
deposited
 
with
 
the
Agent
 
of
 
Existing
 
Indebtedness
 
(such
 
date
 
to
 
be
 
acceptable
 
to
 
the
 
Majority
 
Lenders
 
acting
reasonably).
(b)
 
The Loan or
 
any part of it
 
utilised pursuant to
 
this Clause 5.5
 
(
Prepositioning of funds
) (the
Pre-
placed Loan
) shall (subject
 
to the other
 
provisions of this Agreement)
 
be remitted by
 
the Agent
to the Agent of Existing Indebtedness as a cash deposit in the Agent's name with the Agent of
Existing
 
Indebtedness
 
with
 
its
 
correspondent
 
bank
 
in
 
New
 
York
 
or
 
in
 
such
 
other
 
place
acceptable to
 
the Agent
 
in its
 
sole discretion,
 
on condition
 
that it
 
will be
 
held by
 
the Agent
 
of
Existing Indebtedness to
 
the order of
 
the Agent for
 
release by the
 
Agent to the
 
Agent of Existing
Indebtedness for
 
the purpose
 
of refinancing
 
a part
 
of the
 
Existing Indebtedness
 
equal to
 
the
Pre-placed Loan (a
Release
) and only subject to such irrevocable instructions
 
addressed from
the Agent to
 
the Agent of
 
Existing Indebtedness
 
as are acceptable
 
to the Agent
 
(
Irrevocable
Instructions
).
(c)
 
Any such Irrevocable Instructions in relation to
 
the Pre-placed Loan shall in any event
 
provide
(inter alia) that the Pre-placed
 
Loan shall be returned to
 
the Agent within 5 Business
 
Days (or
such longer
 
period as
 
may be
 
agreed by
 
the Agent
 
(acting on
 
the instructions
 
of the Majority
Lenders)) if not released
 
to the Agent of
 
Existing Indebtedness or its order. The Agent
 
shall not
(and shall procure
 
that its
 
authorised representatives
 
specified in
 
the Irrevocable
 
Instructions
shall
 
not)
 
release
 
or
 
agree
 
to
 
release
 
the
 
Pre-placed
 
Loan
 
to
 
the
 
Agent
 
of
 
Existing
Indebtedness or its order,
 
unless and until:
(i)
 
the Agent is satisfied that
 
a certificate of encumbrances
 
(or an equivalent document)
 
in
respect of each Ship evidencing that such Ship is registered in the name of the relevant
Owner under the Flag State and that such Ship is free of any Security Interest has been
(or,
 
concurrently with
 
the Release,
 
will be)
 
issued by
 
the relevant
 
ship’s registry
 
of the
Flag State; and
(ii)
 
the Agent
 
is satisfied
 
that all
 
the conditions
 
precedent set
 
out in
 
Part 1
 
of Schedule
 
3
(
Conditions Precedent
) and Part 2 of Schedule 3 (
Conditions Precedent
) have been (or,
concurrently with the Release, will
 
be) satisfied in full
 
or otherwise waived in
 
accordance
with the provisions of this Agreement.
(d)
 
Each
 
Borrower
 
hereby
 
irrevocably
 
and
 
unconditionally
 
undertakes
 
that
 
it
 
shall
 
not
 
give
 
any
instructions to
 
the Agent
 
of Existing
 
Indebtedness in
 
respect of
 
the Pre-placed
 
Loan that
 
are
inconsistent with the Irrevocable Instructions in respect
 
of the Pre-placed Loan.
 
(e)
 
Where refinancing
 
of the
 
Existing Indebtedness
 
has been
 
delayed and
 
the
 
Pre-placed
 
Loan
has been returned to the Agent pursuant to Clause 5.5(c), the Agent
 
shall determine in its sole
discretion whether it
 
shall hold the
 
Pre-placed Loan in
 
its own name
 
or utilise it
 
for the purposes
of Clause 5.5(f)
 
and, in the
 
event it decides
 
to hold the
 
Pre-placed Loan, the
 
period for which
the Pre-placed Loan may be held
 
by it; during the period the
 
Agent determines to hold the
 
Pre-
placed Loan, the Obligors
 
may once again request that
 
the Agent remits the
 
Pre-placed Loan
to the Agent of Existing Indebtedness for the purpose
 
of facilitating the refinancing of a part of
the Existing Indebtedness equal to the
 
Pre-placed Loan, whereupon the Agent shall (in
 
its sole
discretion) determine
 
whether or
 
not to do
 
so in
 
accordance with
 
Clause 5.5(b)
 
for release
 
in
accordance with this Clause 5.5.
(f)
 
Other than in
 
the event where
 
the Pre-placed Loan
 
has been returned
 
to the Agent
 
and is being
held by the Agent or is
 
remitted back to the Agent of Existing
 
Indebtedness pursuant to Clause
5.5(e),
 
the
 
Borrowers
 
shall
 
immediately
 
prepay
 
the
 
Pre-placed
 
Loan,
 
together
 
with
 
interest
thereon
 
(calculated
 
in
 
accordance
 
with
 
Clause
 
9.1
 
(
Calculation
 
of
 
interest
),
 
on
 
the
 
date
 
on
which the Agent of Existing Indebtedness is required to return the moneys funded by that Pre-
placed
 
Loan
 
to
 
the
 
Agent
 
in
 
accordance
 
with
 
the
 
relevant
 
Irrevocable
 
Instructions
 
(and
regardless
 
of
 
whether
 
the
 
Agent
 
of
 
Existing
 
Indebtedness
 
has
 
then
 
carried
 
out
 
such
instructions),
 
provided
 
that
 
any
 
moneys
 
actually
 
returned
 
to
 
the
 
Agent
 
from
 
the
 
Agent
 
of
Existing
 
Indebtedness
 
shall
 
be
 
applied
 
by
 
the
 
Agent
 
in
 
satisfaction
 
of
 
such
 
prepayment
obligation of
 
the Borrowers
 
and in
 
payment of
 
any amounts
 
payable by
 
the Borrowers
 
under
Clause 8 (
Restrictions
) as a result of such prepayment.
 
(g)
 
In
 
case
 
of
 
application
 
of
 
this
 
Clause
 
5.5,
 
the
 
Pre-placed
 
Loan
 
shall
 
accrue
 
interest
 
in
accordance with
 
the terms
 
of Clause
 
9.1 (
Calculation of
 
interest
) from
 
the Utilisation
 
Date of
the Preplaced Loan.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Section 4 -
 
Repayment, Prepayment and Cancellation
6
 
Repayment
6.1
 
Repayment
The Borrowers shall on
 
each Repayment Date repay such
 
part of the Loan as
 
is required to be
 
repaid
on that Repayment Date by clause
(Scheduled repayment of Facility)
.
6.2
 
Scheduled repayment of Facility
(a)
 
To
 
the
 
extent
 
not
 
previously
 
reduced
 
and
 
subject
 
to
 
clause
 
(
Margin
 
reset;
 
mandatory
prepayment
), the Loan shall be repaid
 
by instalments on each Repayment Date by
 
the amount
specified below (as revised by clause
(Adjustment of scheduled repayments)
):
Repayment Date
Amount $
First
3,846,153.85
Second
3,846,153.85
Third
3,846,153.85
Fourth
3,846,153.85
Fifth
3,846,153.85
Sixth
3,846,153.85
Seventh
3,846,153.85
Eighth
3,846,153.85
Ninth
3,846,153.85
Tenth
3,846,153.85
Eleventh
3,846,153.85
Twelfth
3,846,153.85
Thirteenth
3,846,153.85
Fourteenth
3,846,153.85
Fifteenth
3,846,153.85
Sixteenth
3,846,153.85
Seventeenth
3,846,153.85
Eighteenth
3,846,153.85
Nineteenth
3,846,153.85
Twentieth
3,846,153.85
Twenty one
3,846,153.85
Twenty-two
3,846,153.85
Twenty-third
3,846,153.85
 
 
 
 
 
 
 
 
 
 
 
 
Repayment Date
Amount $
Twenty-fourth
3,846,153.85
Twenty-fifth
3,846,153.85
Twenty-sixth
3,846,153.85
TOTAL
100,000,000
(b)
 
On the Final Repayment Date (without prejudice to any other provision of this Agreement), the
Loan shall be repaid in full.
6.3
 
Adjustment of scheduled repayments
If the
 
Total
 
Commitments have
 
been partially
 
reduced under
 
this Agreement
 
and/or any
 
part of
 
the
Loan
 
is
 
prepaid
 
(other
 
than
 
under
 
clause
(Scheduled
 
repayment
 
of
 
Facility)
)
 
before
 
any
Repayment Date,
 
the amount
 
of the instalment
 
by which
 
the Loan
 
shall be repaid
 
under clause
(Scheduled repayment of Facility)
on any such Repayment Date
 
(as reduced by any earlier
 
operation
of
 
this
 
clause
)
 
shall
 
be
 
reduced
 
pro
 
rata
 
to
 
such
 
reduction
 
in
 
the
 
Total
 
Commitments
 
and/or
prepayment of the
 
Loan, except in
 
the case of
 
a prepayment of
 
the Loan under
 
clause
 
(
Security
shortfall
) where the reduction shall be applied in reducing the instalments by its aggregate amount in
inverse chronological order of maturity.
7
 
Illegality,
 
prepayment and cancellation
7.1
 
Illegality
If, in any applicable jurisdiction, it becomes
 
unlawful for a Lender to perform any
 
of its obligations as
contemplated
 
by
 
this
 
Agreement
 
or
 
to
 
fund
 
or
 
maintain
 
its
 
participation
 
in
 
the
 
Loan
 
or
 
it
 
becomes
unlawful for any Affiliate of a Lender for that Lender
 
to do so:
(a)
 
that Lender shall promptly notify the Agent upon becoming
 
aware of that event;
(b)
 
upon
 
the
 
Agent
 
notifying
 
the
 
Borrowers,
 
the
 
Available
 
Commitment
 
of
 
that
 
Lender
 
will
 
be
immediately
 
cancelled
 
and
 
the
 
remaining
 
Total
 
Commitments
 
shall
 
be
 
reduced
 
accordingly;
and
(c)
 
the Borrowers shall repay that Lender's participation in the Loan on the last day of the Interest
Period occurring after
 
the Agent has notified
 
the Borrowers or,
 
if earlier,
 
the date specified by
the
 
Lender
 
in
 
the
 
notice
 
delivered
 
to
 
the
 
Agent
 
(being
 
no
 
earlier
 
than
 
the
 
last
 
day
 
of
 
any
applicable grace period
 
permitted by law) and
 
that Lender's corresponding
 
Commitment shall
be cancelled in the amount of the participation repaid.
 
7.2
 
Change of control
(a)
 
The Borrowers shall promptly notify the Agent upon any Obligor becoming aware of a Change
of Control.
 
(b)
 
If a Change of Control occurs, the Agent may,
 
and shall if so directed by the Majority Lenders,
by notice to the Borrowers,
 
cancel the Total
 
Commitments with effect
 
from a date specified
 
in
that notice (which
 
is at least
 
five days (or
 
such later date
 
as approved by
 
the Agent) after
 
the
giving of the notice) and declare that all or
 
part of the Loan, together with interest thereon
 
and
all other amounts
 
accrued or outstanding
 
under the Finance Documents,
 
be payable on such
date,
 
whereupon,
 
with
 
effect
 
from
 
such
 
date,
 
the
 
Total
 
Commitments
 
will
 
be
 
immediately
cancelled, the
 
Facility shall
 
immediately cease
 
to be available
 
and the Loan,
 
interest thereon
and all
 
such
 
other
 
accrued
 
or outstanding
 
amounts
 
shall become
 
due
 
and payable
 
on
 
such
date.
7.3
 
Voluntary cancellation
The Borrowers
 
may,
 
if they
 
give the
 
Agent not
 
less than
 
10 Business
 
Days' (or
 
such shorter
 
period
as
 
the
 
Majority
 
Lenders
 
may
 
agree)
 
prior
 
notice,
 
cancel
 
the
 
whole
 
or
 
any
 
part
 
(being
 
a
 
minimum
amount of $1,000,000 or a multiple of such amount)
 
of the Available Facility,
 
which is undrawn at the
proposed day of cancellation.
 
Any cancellation under
 
this clause
 
shall reduce the
 
Commitments
of the Lenders rateably.
 
7.4
 
Voluntary prepayment
The Borrowers
 
may,
 
if
they give
 
the Agent
 
not less
 
than 10
 
Business Days'
 
(or such
 
shorter period
as the Majority
 
Lenders may
 
agree) prior
 
notice, prepay
 
the whole
 
or any part
 
of the
 
Loan (but
 
if in
part, being an
 
amount that reduces
 
the amount of
 
the Loan by a
 
minimum amount of
 
$1,000,000 or
a multiple of
 
such amount)
,
 
on the last
 
day of an
 
Interest Period in
 
respect of the
 
amount to be
 
prepaid
or,
 
subject
 
to
 
payment
 
of
 
any
 
Break Costs
 
and
 
to
 
payment
 
of
 
a
 
prepayment
 
fee
 
in
 
the
 
amount
 
of
$5,000
 
payable
 
together
 
with
 
any
 
such
 
prepayment
 
and
 
subject
 
to
 
the
 
other
 
provisions
 
of
 
this
Agreement,
 
on any
 
other day
 
Provided that
 
no more
 
than four
 
such prepayments
 
may be
 
made in
any calendar year.
 
7.5
 
Right of cancellation and prepayment in relation to
 
a single Lender
(a)
 
If:
(i)
 
any sum payable to any
 
Lender by an Obligor
 
is required to be
 
increased under clause
(Tax
 
gross-up)
; or
(ii)
 
any Lender
 
claims indemnification from
 
the Borrowers
 
under clause
(Tax indemnity)
or clause
(Increased costs)
,
the Borrowers may,
 
whilst the circumstance
 
giving rise to the
 
requirement for that
 
increase or
indemnification
 
continues,
 
give
 
the
 
Agent
 
notice
 
of
 
cancellation
 
of
 
the
 
Commitment
 
of
 
that
Lender and their intention to procure the repayment of
 
that Lender's participation in the Loan.
 
(b)
 
On receipt of a notice referred to in paragraph
 
above, the Commitment of that Lender shall
immediately be reduced to zero, the Total
 
Commitments shall be reduced accordingly.
 
(c)
 
On the last
 
day of each
 
Interest Period which ends
 
after the Borrowers have
 
given notice under
paragraph
 
above in relation
 
to a Lender
 
(or, if
 
earlier,
 
the date specified
 
by the Borrowers
in that notice),
 
the Borrowers
 
shall repay that
 
Lender's participation
 
in the Loan
 
together with
all interest
 
and other amounts
 
accrued under
 
the Finance
 
Documents which
 
is then
 
owing to
it.
 
7.6
 
Replacement of Lender
(a)
 
If:
(i)
 
the
 
Borrowers
 
become
 
obliged
 
to
 
repay
 
any
 
amount
 
in
 
accordance
 
with
 
clause
(Illegality)
 
to any Lender; or
(ii)
 
any of
 
the circumstances
 
set out
 
in paragraph
 
of
 
clause
 
(
Right of
 
cancellation
and prepayment in relation to a single Lender)
apply to a Lender,
the Borrowers may,
 
on 10 Business
 
Days' prior notice
 
to the Agent and
 
such Lender,
 
replace
such
 
Lender
 
by
 
requiring
 
such
 
Lender
 
to
 
assign
 
(and,
 
to
 
the
 
extent
 
permitted
 
by
 
law,
 
such
Lender shall assign) pursuant to clause
(Changes to the Lenders)
 
all (and not part only) of
its rights under this Agreement
 
(and any Security Document
 
to which that Lender is
 
a party in
its capacity as a Lender) to
 
an Eligible Institution (a
Replacement Lender
) which confirms its
willingness
 
to
 
undertake
 
and
 
does
 
undertake
 
all
 
the
 
obligations
 
of
 
the
 
assigning
 
Lender
 
in
accordance with clause
(Changes to the
 
Lenders)
 
for a purchase
 
price in cash
 
payable at
the time of the assignment in an amount equal to the aggregate
 
of:
(A)
 
the outstanding principal amount of such Lender's participation
 
in the Loan;
(B)
 
all accrued interest owing to such Lender;
(C)
 
the
 
Break
 
Costs
 
which
 
would
 
have
 
been
 
payable
 
to
 
such
 
Lender
 
pursuant
 
to
clause
(Break
 
Costs)
 
had
 
the
 
Borrowers
 
prepaid
 
in
 
full
 
that
 
Lender's
participation in the Loan on the date of the assignment;
 
and
(D)
 
all other
 
amounts
 
payable
 
to that
 
Lender
 
under the
 
Finance
 
Documents
 
on the
date of the assignment.
 
(b)
 
The
 
replacement
 
of
 
a
 
Lender
 
pursuant
 
to
 
this
 
clause
 
shall
 
be
 
subject
 
to
 
the
 
following
conditions:
(i)
 
the Borrowers shall have no right to replace the Agent
 
or the Security Agent);
(ii)
 
neither
 
the
 
Agent
 
nor
 
any
 
Lender
 
shall
 
have
 
any
 
obligation
 
to
 
find
 
a
 
Replacement
Lender;
(iii)
 
in
 
no
 
event
 
shall
 
the
 
Lender
 
replaced
 
under
 
this
 
clause
 
be
 
required
 
to
 
pay
 
or
surrender any of the fees received by such Lender pursuant to the Finance Documents;
and
(iv)
 
the
 
Lender
 
shall
 
only
 
be
 
obliged
 
to
 
assign
 
its
 
rights
 
pursuant
 
to
 
paragraph
 
above
once it is satisfied that it has complied with all necessary “know your customer”
 
or other
similar checks under all applicable laws and regulations
 
in relation to that assignment.
 
(c)
 
A Lender shall perform
 
the checks described in
 
paragraph
 
above as soon as
 
reasonably
practicable following delivery of a notice referred to in paragraph
 
above and shall notify the
Agent and the Borrowers when it is satisfied that it has
 
complied with those checks.
 
7.7
 
Sale or Total Loss
(a)
 
On a
 
Mortgaged Ship's
 
Disposal Repayment
 
Date (and
 
without prejudice
 
to the
 
rights of
 
the
Finance Parties under clause
 
(
Sale or other disposal of Ship
) the Borrowers shall prepay
such part of the Loan as is equal to the Loan multiplied
 
by the Applicable Fraction.
 
(b)
 
For the purposes
 
of this clause,
Applicable Fraction
 
means, in relation
 
to a
 
Ship being sold
or which has become a Total
 
Loss, a fraction having:
(i)
 
a numerator equal to the market value of the Ship sold
 
or lost; and
(ii)
 
a denominator equal to
 
the aggregate of the
 
market value of all
 
Ships (including the Ship
lost or sold),
in each case as determined
 
by the Majority Lenders
 
pursuant to clause
 
(
Minimum security
value
) on or before the relevant Ship’s Disposal
 
Repayment Date.
(c)
 
Any cancellation
 
of part
 
of the
 
Available
 
Facility
 
pursuant to
 
this clause
 
shall reduce
 
the
Total
 
Commitments by the same amount.
7.8
 
Mandatory prepayment and cancellation following
 
non-compliance with Sanctions
If any Obligor
 
is at
 
any time
 
not in
 
compliance with
 
the provisions
 
of clause
 
(
Sanctions
) or
 
at
any time when a representation made or repeated
 
under clause
 
(
Sanctions
) is not true, correct
or accurate, then the
 
Agent may,
 
and shall if so
 
directed by any Lender,
 
by notice to the
 
Borrowers,
cancel the Total Commitments with immediate effect after the giving of the notice and declare that all
or part of
 
the Loan, together with
 
interest thereon and all
 
other amounts accrued or
 
outstanding under
the Finance Documents, be
 
payable on such date,
 
whereupon, with effect
 
from such date, the
 
Total
Commitments will be immediately cancelled, the Facility shall immediately
 
cease to be available and
the Loan, interest thereon and all such other accrued or outstanding
 
amounts shall become due and
payable on such date.
7.9
 
Automatic cancellation
Any part of
 
the Total Commitments
 
which has not become
 
available by the Last
 
Availability Date shall
be automatically cancelled at close of business in London
 
on the Last Availability Date.
7.10
 
Right of cancellation in relation to a Defaulting Lender
(a)
 
If any Lender becomes a Defaulting Lender,
 
the Borrowers may,
 
at any time whilst the Lender
continues to be a Defaulting Lender,
 
give the Agent 5 Business Days' notice of cancellation of
the Available Commitment of that Lender.
(b)
 
On such
 
notice becoming
 
effective, the
 
Available Commitment
 
of the Defaulting
 
Lender shall
immediately be reduced to zero, the Total
 
Commitments shall be reduced accordingly and the
Agent shall as soon as practicable after receipt of such notice,
 
notify all the Lenders.
7.11
 
Margin reset; mandatory prepayment
(a)
 
Not later than
 
120 days prior to
 
the Margin Reset Date,
 
the Borrowers and the
 
Agent (on behalf
of
 
all
 
Lenders)
 
shall
 
enter
 
into
 
discussions
 
with
 
a
 
view
 
to
 
agreeing
 
a
 
new
 
rate
 
for
 
Margin
(including, if
 
so agreed,
 
a continuation
 
of the
 
then current
 
Margin) to
 
be applied
 
to the
 
Loan
from
 
such
 
Margin
 
Reset
 
Date
 
and
 
at
 
all
 
times
 
thereafter
 
throughout
 
the
 
Facility
 
Period
 
(the
New Margin
).
(b)
 
Any New Margin
 
shall be that
 
which is agreed in
 
writing by the Borrowers
 
and the Agent (acting
on the instructions
 
of the Lenders)
 
no later than
 
30 days before the
 
Margin Reset Date.
 
If the
Lenders and the Borrowers
 
agree to a New Margin
 
by the end of
 
such period, then
 
subject to
the terms of paragraph (d) below,
 
the New Margin will constitute the Margin and
 
references in
this Agreement and the other
 
Finance Documents to “Margin”,
 
shall henceforth be references
to such New Margin. The New Margin shall take effect
 
from the Margin Reset Date.
(c)
 
If the Borrowers
 
and the Agent
 
(acting on the instructions
 
of the Lenders)
 
do not agree
 
the New
Margin (or, as the case
 
may be, a
 
continuation of the then
 
current Margin) by the
 
date specified
in paragraph (b) above (and it is hereby agreed and understood by the Parties that neither the
Agent nor the
 
Lenders are under any
 
obligation to agree or
 
propose a rate
 
(or, as the case may
be, a continuation of the then current rate) as the New Margin), the Agent shall promptly notify
the Lenders
 
of such
 
failure
 
to agree
 
and
 
the
 
Borrowers
 
shall prepay
 
the
 
Loan
 
in
 
full on
 
the
Margin Reset Date, together
 
with interest thereon,
 
and any and all
 
other amounts then due
 
and
payable
 
under
 
this
 
Agreement
 
and
 
the
 
other
 
Finance
 
Documents
 
together
 
with
 
such
prepayment.
(d)
 
For the avoidance of doubt,
 
no agreement between the
 
Lenders and the Borrowers
 
regarding
a New Margin shall be or become effective under this
 
clause
, unless and until:
(i)
 
the
 
Parties
 
have
 
executed
 
such
 
documents
 
(including
 
an
 
agreement
 
supplemental
 
to
this Agreement and an addendum
 
to each Mortgage) documenting such
 
agreement and
any other documents requested by the Agent in its absolute
 
discretion; and
 
(ii)
 
the Borrowers
 
have delivered
 
to the
 
Agent such
 
documents
 
and evidence
 
of the
 
type
referred to in
Conditions precedent
) in relation to the documents referred to
in paragraph (d)(i) above as requested by the Agent in
 
its absolute discretion,
in each case in a form and substance satisfactory to the
 
Agent.
8
 
Restrictions
8.1
 
Notices of cancellation and prepayment
Any notice of cancellation or prepayment given by any Party
 
under clause
 
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.
 
8.2
 
Interest and other amounts
Any prepayment under
 
this Agreement
 
shall be made
 
together with accrued
 
interest on the
 
amount
prepaid and, subject to any Break Costs, without premium
 
or penalty.
 
8.3
 
No reborrowing
The Borrowers may not re-borrow any part of the Facility
 
which is prepaid or repaid.
 
8.4
 
Prepayment in accordance with Agreement
The Borrowers
 
shall not
 
repay or
 
prepay all
 
or any
 
part of
 
the Loan
 
or cancel
 
all or
 
any part
 
of the
Commitments except at the times and in the manner expressly
 
provided for in this Agreement.
 
8.5
 
No reinstatement of Commitments
No
 
amount
 
of
 
the
 
Total
 
Commitments
 
cancelled
 
under
 
this
 
Agreement
 
may
 
be
 
subsequently
reinstated.
 
8.6
 
Agent's receipt of notices
If the Agent receives
 
a notice under
 
clause
 
it shall promptly
 
forward a copy
 
of that notice to
 
either
the Borrowers or the affected Lender,
 
as appropriate.
 
8.7
 
Effect of repayment and prepayment on Commitments
If all or part of any Lender's participation in the Loan is repaid or prepaid, an amount
 
of that Lender's
Commitment equal to the amount of the participation which is repaid or prepaid will be deemed to be
cancelled on the date of repayment or prepayment.
 
8.8
 
Application of cancellations
If the
 
Total Commitments are partially reduced and/or
 
the Loan partially
 
prepaid under this
 
Agreement
(other than under clause
(Illegality)
, clause
(Right of cancellation and
 
prepayment in relation
to
 
a
 
single
 
Lender)
and
 
clause
 
(
Right
 
of
 
cancellation
 
in
 
relation
 
to
 
a
 
Defaulting
 
Lender
),
 
the
Commitments of the Lenders shall be reduced rateably.
 
8.9
 
Application of prepayments
(a)
 
Any
 
prepayment
 
required
 
as
 
a
 
result
 
of
 
a
 
cancellation
 
in
 
full
 
of
 
an
 
individual
 
Lender's
Commitment under clause
(Illegality)
 
or clause
(Right of cancellation
 
and prepayment
in relation to a single
 
Lender)
 
shall be applied in
 
prepaying the relevant Lender's
 
participation
in the Loan.
 
(b)
 
Any other prepayment shall be applied pro rata to each
 
Lender's participation in the Loan.
8.10
 
Reduction in hedging exposure on prepayment
Any prepayment under this Agreement shall be made
 
together with payment to the Hedging Provider
of
 
any
 
amount
 
falling
 
due
 
to
 
the
 
Hedging
 
Provider
 
under
 
a
 
Hedging
 
Contract
 
as
 
a
 
result
 
of
 
the
termination or close out of that Hedging Contract or any
 
Hedging Transaction under it in accordance
with clause
 
(
Unwinding of Hedging Contracts
) in relation to that prepayment.
8.11
 
Removal of Lender from security
Upon
 
cancellation
 
and
 
prepayment
 
in
 
full
 
of
 
an
 
individual
 
Lender's
 
Commitment
 
under
 
clause
(Illegality)
 
or clause
(Right
 
of cancellation
 
and
 
prepayment
 
in relation
 
to a
 
single
 
Lender),
that
Lender
 
and
 
the
 
other
 
Parties
 
must
 
promptly
 
take
 
(and
 
the
 
Borrowers
 
shall
 
ensure
 
that
 
any
 
other
relevant
 
Obligor
 
promptly
 
takes)
 
whatever
 
action
 
the
 
Agent
 
may,
 
in
 
its
 
reasonable
 
opinion,
 
deem
necessary or desirable
 
for the purpose
 
of removing that
 
Lender as a
 
party to and
 
beneficiary of any
Security Documents granted in favour of (among others)
 
the Lenders.
Section 5 -
 
Costs of Utilisation
9
 
Interest
9.1
 
Calculation of interest
The rate of
 
interest on the Loan
 
(or any relevant part
 
of it for
 
which there is
 
a separate Interest Period)
for each Interest Period relating to it is the percentage
 
rate per annum which is the aggregate of:
(a)
 
the applicable Margin; and
(b)
 
the Reference Rate for the relevant Interest Period.
9.2
 
Payment of interest
The Borrowers
 
shall pay
 
accrued interest
 
on the
 
Loan (or
 
any relevant
 
part of
 
it) on
 
the last
 
day of
each Interest Period (or the relevant
 
part of it) and, if an Interest
 
Period is longer than three Months,
on the dates falling at three Monthly intervals after the
 
first day of that Interest Period.
 
9.3
 
Default interest
(a)
 
If an
 
Obligor fails
 
to pay
 
any amount
 
payable by
 
it under
 
a Finance
 
Document
 
(other than
 
a
Hedging
 
Contract)
 
to
 
a
 
Finance
 
Party
 
on
 
its
 
due
 
date,
 
interest
 
shall
 
accrue
 
on
 
the
 
overdue
amount from
 
the due date
 
up to the
 
date of actual
 
payment (both
 
before and
 
after judgment)
at a rate which,
 
subject to paragraph
 
below, is
 
2
per cent (2%) per
 
annum higher than
 
the
rate
 
which
 
would
 
have
 
been
 
payable
 
if
 
the
 
overdue
 
amount
 
had,
 
during
 
the
 
period
 
of
 
non-
payment, constituted the Loan for
 
successive Interest Periods, each
 
of a duration selected by
the Agent (acting reasonably).
 
(b)
 
Any interest
 
accruing under
 
this clause
 
shall be
 
immediately payable
 
by the
 
Obligors on
demand by the Agent.
 
(c)
 
If any
 
overdue amount
 
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 the relevant part of it:
(i)
 
the
 
first
 
Interest
 
Period
 
for
 
that
 
overdue
 
amount
 
shall
 
have
 
a
 
duration
 
equal
 
to
 
the
unexpired portion of the
 
current Interest Period
 
relating to the
 
Loan or the relevant
 
part
of it; and
(ii)
 
the rate of interest applying
 
to the overdue amount during that
 
first Interest Period shall
be 2 per
 
cent per
 
annum higher
 
than the rate
 
which would
 
have applied
 
if the overdue
amount had not become due.
 
(d)
 
Default interest payable under this clause
 
(if unpaid) arising on an overdue amount will
 
be
compounded
 
with
 
the
 
overdue
 
amount
 
at
 
the
 
end
 
of
 
each
 
Interest
 
Period
 
applicable
 
to
 
that
overdue amount but will remain immediately due and payable.
 
9.4
 
Notification of rates of interest
(a)
 
The Agent shall
 
promptly notify the
 
Lenders and
 
the Borrowers of
 
the determination
 
of a rate
of interest under this Agreement.
 
(b)
 
The Agent
 
shall promptly
 
notify the
 
Borrowers of
 
each Funding
 
Rate relating
 
to the
 
Loan (or
any relevant part of it).
 
9.5
 
Sustainability Margin Adjustment
(a)
 
Subject to the other provisions of this clause
, the Borrowers shall deliver to the Agent prior
to 30
 
June of
 
each calendar
 
year,
 
a Sustainability
 
Certificate for
 
the prior
 
calendar year
 
(but
starting
 
from
 
30
 
June
 
2024
 
for
 
the
 
calendar
 
year
 
ending
 
31
 
December
 
2023).
 
Margin
 
(as
specified
 
in
 
paragraph
 
(a)
 
of its
 
definition
 
in
 
clause
 
(
Definitions
))
 
for each
 
calendar
 
year
during the
 
Facility
 
Period (will
 
be determined
 
and adjusted
 
in accordance
 
with the
 
terms set
out below and references to ‘Margin’ in this Agreement
 
shall be construed accordingly.
 
(b)
 
Each calendar year, the Margin shall
 
increase or decrease subject to
 
achievement by the Fleet
(as defined in Schedule 8)
 
of the two Key Performance
 
Indicators (rounded up to two
 
decimal
places) as provided
 
in the Sustainability
 
Certificate for the
 
prior calendar year
 
(a
Sustainability
Margin Adjustment
). Each such
 
adjustment shall
 
take place
 
on the date
 
falling 15
 
Business
Days after
 
30 June
 
of each
 
relevant
 
calendar
 
year
 
(starting with
 
15
 
Business Days
 
after 30
June 2024) following the delivery of the relevant Sustainability Certificate
 
for the prior calendar
year
 
(starting
 
with
 
the
 
calendar
 
year
 
ending
 
31
 
December
 
2023).The
 
Sustainability
 
Margin
Adjustment for a calendar year shall be:
 
(i)
 
a 0.05%
 
decrease of
 
the Margin
 
to 2.15%
 
if both
 
Key Performance
 
Indicators are
 
met
for the prior calendar year;
(ii)
 
a 0.025%
 
decrease of
 
the Margin
 
to 2.175%
 
if Key
 
Performance Indicator
 
1 is
 
met for
the prior calendar year but Key Performance Indicator 2 is not met for the prior calendar
year;
(iii)
 
a 0.05% increase of the Margin to 2.25% if neither Key Performance Indicator is met for
the prior calendar year.
There
 
shall
 
be
 
no
 
Sustainability
 
Margin
 
Adjustment
 
for
 
a
 
calendar
 
year
 
if
 
Key
 
Performance
Indicator 2 is met for the prior calendar year
 
but Key Performance Indicator 1 is not met for the
prior calendar year.
(c)
 
The Sustainability Margin Adjustment
 
for any calendar year shall
 
at no time exceed 0.05%
 
as
a decrease or 0.05% as an increase from the Margin.
(d)
 
If the Borrowers fail at any time to furnish a Sustainability Certificate for any calendar year, the
Sustainability
 
Margin
 
Adjustment
 
shall
 
be
 
an
 
increase
 
of
 
the
 
Margin
 
by
 
0.05%.
 
For
 
the
avoidance of doubt,
 
the Borrowers may elect
 
not to furnish
 
a Sustainability Certificate and
 
such
election will not constitute a Default or an Event of Default.
(e)
 
The Borrowers shall
 
provide the Agent any
 
additional clarification regarding
 
the Sustainability
Certificate as the Agent shall from time to time reasonably require
(f)
 
The
 
Borrowers
 
undertake
 
to
 
execute
 
(or
 
procure
 
the
 
execution
 
of)
 
any
 
documentation
supplemental to this Agreement and any other Finance Document as the Agent may in
 
its sole
discretion require for the purposes of adjusting
 
this clause
 
and/or
Sustainability
Margin
 
Adjustment
)
 
consequent
 
to
 
an
 
agreement
 
with
 
the
 
Agent
 
in
 
accordance
 
with
 
clause
 
and/or reflecting an amendment to the rate of Margin.
 
(g)
 
Unless elsewhere or otherwise defined in this
 
Agreement, expressions used in this clause
shall have the meaning given to them in
Sustainability Margin Adjustment
).
10
 
Interest Periods
10.1
 
Selection of Interest Periods
(a)
 
A Borrower may select
 
the first Interest Period for
 
the Loan in the Utilisation
 
Request and (after
the Loan has been borrowed) may select an Interest Period for the Loan in a Selection Notice.
(b)
 
Each Selection Notice is irrevocable and
 
must be delivered to the Agent by
 
the Borrowers not
later than 11:00 a.
 
m. four
 
Business Days before
 
the last day
 
of the
 
then current Interest
 
Period.
(c)
 
If the Borrowers fail to
 
deliver a Selection Notice to
 
the Agent in accordance with
 
paragraph
above, the
 
relevant
 
Interest
 
Period will,
 
subject to
 
clause
 
(
Interest Periods
 
overrunning
Repayment Dates
), be three Months.
(d)
 
Subject to this clause
, the Borrowers may
 
select an Interest
 
Period of
one Month, three
 
or
six Months
 
or any
 
other period
 
agreed between
 
the Borrowers and
 
the Agent
 
on the
 
instructions
of all the Lenders.
 
(e)
 
No Interest Period shall extend beyond the Final Repayment
 
Date.
(f)
 
The first Interest Period shall start on the Utilisation
 
Date and each subsequent Interest Period
shall start on the last day of its preceding Interest
 
Period.
(g)
 
No Interest Period shall be longer than six Months.
10.2
 
Interest Periods overrunning Repayment Dates
If the Borrowers select
 
an Interest Period which
 
would overrun any later
 
Repayment Date, the
 
Loan
shall be divided into parts corresponding to the amounts by
 
which the Loan is scheduled to be repaid
under clause
(Scheduled repayment
 
of Facility)
 
on each
 
of the
 
Repayment Dates
 
falling during
such
 
Interest
 
Period
 
(each
 
of
 
which
 
shall
 
have
 
a
 
separate
 
Interest
 
Period
 
ending
 
on
 
the
 
relevant
Repayment Date)
 
and to
 
the balance
 
of the
 
Loan (which
 
shall have
 
the Interest
 
Period selected
 
by
the Borrowers).
10.3
 
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).
 
11
 
Changes to the calculation of interest
11.1
 
Unavailability of Term
 
SOFR
(a)
 
If no Term SOFR is available
 
for an Interest
 
Period, the applicable Reference
 
Rate for the
 
Loan
(or any relevant part of
 
it) shall be the
 
Interpolated Term
 
SOFR for a period
 
equal in length to
that Interest Period.
(b)
 
If
 
no
 
Term
 
SOFR
 
is
 
available
 
for
 
an
 
Interest
 
Period
 
and
 
it
 
is
 
not
 
possible
 
to
 
calculate
 
the
Interpolated Term
 
SOFR, that Interest Period
 
for the Loan (or
 
the relevant part of
 
it) shall (if it
is longer than the applicable Fallback
 
Interest Period) be shortened to
 
the applicable Fallback
Interest Period
 
and the applicable
 
Reference Rate
 
for that
 
shortened Interest
 
Period shall
 
be
determined pursuant to the definition of “
Reference Rate
”.
(c)
 
If an Interest
 
Period for the
 
Loan (or the
 
relevant part
 
of it) is,
 
after giving effect
 
to paragraph
(b) above, either the applicable
 
Fallback Interest Period or shorter than
 
the applicable Fallback
Interest Period and, in either case, no Term
 
SOFR is available for that Interest Period 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 the relevant part of it).
(d)
 
If paragraph (c) above applies but no Historic Term SOFR is available for an Interest Period of
the Loan
 
(or the
 
relevant
 
part of
 
it), the
 
applicable
 
Reference Rate
 
shall be
 
the Interpolated
Historic Term
 
SOFR for a period equal in length to that Interest Period.
(e)
 
If paragraph (d) above applies
 
but it is not possible to
 
calculate the Interpolated Historic Term
SOFR for the
 
Loan (or the
 
relevant part of
 
it), the relevant
 
Interest Period shall,
 
if it has
 
been
shortened pursuant to paragraph (b) above,
 
revert to its previous length and there
 
shall be no
Reference
 
Rate
 
for
 
that
 
Interest
 
Period
 
and
 
clause
 
(
Cost
 
of
 
funds
)
 
shall
 
apply
 
for
 
that
Interest Period.
11.2
 
Market disruption
If before
 
close of
 
business in
 
London on
 
the Quotation
 
Day for
 
an Interest
 
Period in
 
respect of
 
the
Loan
 
or
 
any
 
relevant
 
part
 
of
 
it,
 
the
 
Agent
 
receives
 
notifications
 
from
 
a
 
Lender
 
or
 
Lenders
 
(whose
participations
 
in
 
the
 
Loan
 
exceed
 
50
 
per
 
cent.
 
of
 
the
 
Loan)
 
that
 
its
 
cost
 
of
 
funds
 
relating
 
to
 
its
participation in the Loan (or the relevant part
 
of it) would be in excess of the Market
 
Disruption Rate,
then clause
 
(
Cost of
 
funds
) shall
 
apply to
 
the Loan
 
(or the
 
relevant
 
part of
 
it) for
 
the relevant
Interest Period.
11.3
 
Cost of funds
(a)
 
If
 
this
 
clause
 
applies,
 
the
 
rate
 
of
 
interest
 
on
 
each
 
Lender's
 
share
 
of
 
the
 
Loan
 
or
 
any
relevant part of it for the
 
relevant Interest Period shall be the percentage rate per
 
annum which
is the sum of:
(i)
 
the applicable Margin; and
(ii)
 
the rate
 
notified to
 
the Agent
 
by that
 
Lender
 
as soon
 
as practicable
 
and in
 
any event
within ten Business Days of the first day of that Interest Period (or, if earlier, on the date
falling ten Business Days
 
before the date on which
 
interest is due to
 
be paid in respect
of that Interest
 
Period), to be
 
that which expresses
 
as a percentage
 
rate per annum
 
its
cost of funds relating to its participation in the Loan (or
 
the relevant part of it).
(b)
 
If
 
this
 
clause
 
applies
 
and
 
the
 
Agent
 
or
 
the
 
Borrowers
 
so
 
require,
 
the
 
Agent
 
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.
(c)
 
Subject
 
to
 
clause
 
(
Changes
 
to
 
Reference
 
Rates
),
 
any
 
substitute
 
or
 
alternative
 
basis
agreed pursuant to paragraph (b) above shall, with the prior
 
consent of all the Lenders and the
Borrowers, be binding on all Parties.
(d)
 
If this clause
 
applies pursuant to clause
 
(
Market disruption
) and:
(i)
 
a Lender's Funding Rate is less than the Market Disruption
 
Rate; or
(ii)
 
a Lender does not notify a rate by the time specified in
 
paragraph (a)(ii) above,
that Lender's
 
cost of
 
funds
 
relating to
 
its participation
 
in that
 
Loan for
 
that
 
Interest
 
Period shall
 
be
deemed, for the purposes of paragraph (a) above, to be
 
the Market Disruption Rate.
11.4
 
Notification to Borrowers
 
If clause
 
(
Cost of funds
) applies, the Agent shall, as
 
soon as is practicable, notify the
 
Borrowers.
11.5
 
Break Costs
(a)
 
The Borrowers
 
shall, within
 
three Business
 
Days of
 
demand by
 
a Finance
 
Party,
 
pay to
 
that
Finance Party its Break Costs
 
attributable to all or any part
 
of the Loan or any relevant
 
part of
it or
 
Unpaid Sum being
 
paid by the
 
Borrowers on a
 
day prior to
 
the last day
 
of an Interest
 
Period
for the Loan or that relevant part of it or Unpaid Sum.
 
(b)
 
Each Lender shall, as soon as
 
reasonably practicable after a demand by
 
the Agent, provide a
certificate confirming the amount of its
 
Break Costs for any Interest Period
 
in respect of which
they become, or may become, payable.
 
12
 
Fees
12.1
 
Upfront fee
The Borrowers shall
 
pay to the Agent
 
(for further distribution
 
to the Arranger
 
and/or the Lenders)
 
an
up-front fee in the amount and at the times agreed in
 
a Fee Letter.
12.2
 
Commitment commission
(a)
 
The Borrowers
 
shall pay
 
to the
 
Agent (for
 
the account
 
of each
 
Lender) a
 
fee in
 
dollars computed
at the
 
rate
 
of 0.4
 
per cent.
 
per annum
 
on that
 
Lender’s
 
undrawn
 
and
 
uncancelled
 
Available
Commitment calculated on a daily basis from 24 May 2023 (the
start date
).
(b)
 
The Borrowers
 
shall pay
 
the accrued
 
commitment
 
fee referred
 
to in
 
paragraph (a)
 
above on
the day falling
 
three Months
 
after the start
 
date, on the
 
last day of
 
each successive
 
period of
three Months thereafter,
 
on the Last Availability Date and,
 
if cancelled in full, on the cancelled
amount of the relevant
 
Lender’s Available Commitment at the
 
time the cancellation is effective.
(c)
 
No
 
commitment
 
fee
 
is
 
payable
 
to
 
the
 
Agent
 
(for
 
the
 
account
 
of
 
a
 
Lender)
 
on
 
any
 
Available
Commitment of that Lender for any day on which the Lender
 
is a Defaulting Lender.
12.3
 
Agency fee
The Borrowers
 
shall pay
 
to the Agent
 
(for its
 
own account)
 
an agency
 
fee in the
 
amount and
 
at the
times agreed in a Fee Letter.
13
 
Tax gross-up and indemnities
13.1
 
Definitions
(a)
 
In this Agreement:
Protected Party
 
means a
 
Finance Party
 
or,
 
in relation
 
to clause
(Indemnity concerning
security)
 
and clause
 
(Interest)
 
insofar as
 
it relates
 
to interest
 
on any
 
amount demanded
by that Indemnified
 
Person under clause
 
(Indemnity concerning security)
, any Indemnified
Person, which is
 
or will be
 
subject to any
 
liability,
 
or required to
 
make any payment,
 
for or on
account of
 
Tax in relation to a
 
sum received or
 
receivable (or any
 
sum deemed for
 
the purposes
of Tax
 
to be received or receivable) under a Finance Document.
 
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 Hedging Contract)
 
other than a FATCA
 
Deduction.
 
Tax Payment
 
means either the increase in a payment made by an Obligor
 
to a Finance Party
under clause
(Tax
 
gross-up)
 
or a payment under clause
(Tax
 
indemnity)
.
(b)
 
Unless
 
a
 
contrary
 
indication
 
appears,
 
in
 
this
 
clause
 
a
 
reference
 
to
 
“
determines
”
 
or
“
determined
” means a
 
determination made in the
 
absolute discretion of
 
the person making the
determination.
 
13.2
 
Tax gross-up
(a)
 
Each Obligor shall
 
make all payments
 
to be made
 
by it under any
 
Finance Document without
any Tax
 
Deduction, unless a Tax
 
Deduction is required by law.
 
(b)
 
The Borrowers shall,
 
promptly upon any
 
of them 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
 
Agent
 
accordingly.
 
Similarly,
 
a
 
Lender
 
shall
 
notify
 
the
 
Agent
 
on
 
becoming
 
so
 
aware
 
in
respect of
 
a payment
 
payable to
 
that Lender.
 
If the
 
Agent receives
 
such notification
 
from a
Lender it shall notify the Borrowers and that Obligor.
 
(c)
 
If a
 
Tax
 
Deduction is
 
required by
 
law to
 
be made
 
by an
 
Obligor,
 
the amount
 
of the
 
payment
due from that
 
Obligor under
 
the relevant Finance
 
Document 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 Agent
 
for the
Finance Party
 
entitled to the
 
payment evidence
 
reasonably satisfactory
 
to that
 
Finance Party
that the Tax Deduction
 
has been made or (as applicable) any appropriate payment paid to the
relevant taxing authority.
 
(f)
 
This clause
 
shall not apply in
 
respect of any payments
 
under any Hedging Contract
 
where
the gross-up provisions of the Hedging Master Agreement
 
itself apply.
13.3
 
Tax indemnity
(a)
 
Each Obligor who is a Party shall (within three Business Days of demand by the Agent) pay to
a
 
Protected
 
Party
 
an
 
amount
 
equal
 
to
 
the
 
loss,
 
liability
 
or
 
cost
 
which
 
that
 
Protected
 
Party
determines will be or has
 
been (directly or indirectly)
 
suffered for or on
 
account of Tax
 
by that
Protected Party in respect of a Finance Document.
 
(b)
 
Paragraph
 
above shall not apply:
(i)
 
with respect to any Tax
 
assessed on a Finance Party:
(A)
 
under the law
 
of the jurisdiction
 
in which that
 
Finance Party
 
is incorporated
 
or,
 
if
different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
(B)
 
under
 
the
 
law
 
of
 
the
 
jurisdiction
 
in
 
which
 
that
 
Finance
 
Party'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
 
that Finance Party;
or
(ii)
 
to the extent a loss, liability or cost:
(A)
 
is compensated
 
for by
 
an increased
 
payment under
 
clause
 
(
Tax
 
gross-up
);
or
(B)
 
relates
 
to
 
a
 
FATCA
 
Deduction
 
required
 
to
 
be
 
made
 
by
 
a
 
Party
 
or
 
any
 
Obligor
which is not a Party.
 
(c)
 
A
 
Protected
 
Party
 
making,
 
or
 
intending
 
to
 
make
 
a
 
claim
 
under
 
paragraph
 
above
 
shall
promptly notify the Agent of
 
the event which will give, or
 
has given, rise to the claim, following
which the Agent shall notify the Borrowers.
 
(d)
 
A Protected Party shall, on receiving
 
a payment from an Obligor under
 
this clause
, notify
the Agent.
13.4
 
Tax Credit
If an Obligor makes a Tax
 
Payment and the relevant Finance Party determines that:
(a)
 
a Tax Credit is attributable (A) to an increased payment of which that Tax
 
Payment forms part,
(B) to that Tax
 
Payment or (C) to a Tax
 
Deduction in consequence of which that Tax
 
Payment
was required; and
(b)
 
that Finance Party has obtained and utilised that Tax
 
Credit,
the Finance Party shall pay an amount to the Obligor
 
which that Finance Party 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.
13.5
 
Indemnities on after Tax
 
basis
(a)
 
If and to
 
the extent that
 
any sum payable
 
to any Protected
 
Party by the
 
Borrowers under any
Finance Document by way of indemnity
 
or reimbursement proves to be insufficient,
 
by reason
of any Tax suffered
 
thereon, for that Protected Party to discharge the corresponding liability to
a third party,
 
or to reimburse that
 
Protected Party for the
 
cost incurred by it
 
in discharging the
corresponding
 
liability
 
to
 
a
 
third
 
party,
 
the
 
Borrowers
 
shall
 
pay
 
that
 
Protected
 
Party
 
such
additional sum as (after
 
taking into account
 
any Tax
 
suffered by that
 
Protected Party on
 
such
additional sum) shall be required to make up the relevant
 
deficit.
 
(b)
 
If and
 
to the
 
extent that
 
any sum
 
(the
Indemnity Sum
) constituting
 
(directly
 
or indirectly)
 
an
indemnity
 
to
 
any
 
Protected
 
Party
 
but
 
paid
 
by
 
the
 
Borrowers
 
to
 
any
 
person
 
other
 
than
 
that
Protected Party, shall be treated as taxable in the hands of the Protected Party, the Borrowers
shall
 
pay
 
to
 
that
 
Protected
 
Party
 
such
 
sum
 
(the
Compensating
 
Sum
)
 
as
 
(after
 
taking
 
into
account any Tax
 
suffered by that Protected
 
Party on the Compensating Sum)
 
shall reimburse
that Protected Party for any Tax
 
suffered by it in respect of the Indemnity Sum.
 
(c)
 
For the purposes of paragraphs
 
and
 
above, a sum shall be deemed to be taxable in the
hands of a
 
Protected Party if
 
it falls to
 
be taken into
 
account in computing
 
the profits or
 
gains
of that Protected Party for
 
the purposes of Tax and, if so, that Protected Party shall be
 
deemed
to have suffered Tax on the relevant sum at the rate of Tax applicable to that Protected Party's
profits or
 
gains for
 
the period
 
in which
 
the payment
 
of the
 
relevant sum
 
falls to
 
be taken
 
into
account for the purposes of such Tax.
 
13.6
 
Stamp taxes
The Borrowers shall pay and,
 
within three Business Days
 
of demand, indemnify each Finance
 
Party
against any
 
cost, loss
 
or liability
 
that Finance
 
Party incurs
 
in relation
 
to all
 
stamp duty,
 
registration
and other similar Taxes
 
payable in respect of any Finance Document.
 
13.7
 
Value added tax
(a)
 
All amounts expressed in
 
a Finance Document to
 
be payable by any
 
party to a Finance
 
Party
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,
subject to paragraph
 
below,
 
if VAT
 
is or becomes chargeable
 
on any supply
 
made by any
Finance Party to any party
 
under a Finance Document,
 
and such Finance Party
 
is required to
account to the relevant tax authority for the VAT,
 
that party must pay to such Finance Party (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 such Finance Party must promptly
 
provide an appropriate
VAT
 
invoice to that party).
 
(b)
 
If VAT
 
is or becomes chargeable
 
on any supply made by
 
any Finance Party (the
Supplier
) to
any
 
other
 
Finance
 
Party
 
(the
Recipient
)
 
under
 
a
 
Finance
 
Document,
 
and
 
any
 
party
 
to
 
a
Finance Document
 
other than
 
the Recipient
 
(the
Subject
 
Party
) is
 
required
 
by the
 
terms
 
of
any
 
Finance
 
Document
 
to
 
pay
 
an
 
amount
 
equal
 
to
 
the
 
consideration
 
for
 
that
 
supply
 
to
 
the
Supplier (rather than being
 
required to reimburse or indemnify
 
the Recipient in respect
 
of that
consideration):
(i)
 
(where the Supplier is the
 
person required to account to
 
the relevant tax authority for the
VAT)
 
the Subject
 
Party must
 
also pay to
 
the Supplier
 
(at the same
 
time as
 
paying that
amount)
 
an
 
additional
 
amount
 
equal
 
to
 
the
 
amount
 
of
 
the
 
VAT.
 
The
 
Recipient
 
must
(where this paragraph
 
applies) promptly pay to the Subject Party an amount equal
 
to
any credit or repayment the Recipient receives from the relevant tax authority which the
Recipient reasonably determines relates to the VAT
 
chargeable on that supply; and
(ii)
 
(where the
 
Recipient is
 
the person
 
required to
 
account to
 
the relevant
 
tax authority
 
for
the VAT)
 
the Subject Party must promptly,
 
following demand from the Recipient,
 
pay to
the
 
Recipient
 
an
 
amount
 
equal
 
to
 
the
 
VAT
 
chargeable
 
on
 
that
 
supply
 
but
 
only
 
to
 
the
extent
 
that
 
the
 
Recipient
 
reasonably
 
determines
 
that
 
it
 
is
 
not
 
entitled
 
to
 
credit
 
or
repayment from the relevant tax authority in respect of
 
that VAT.
 
(c)
 
Where a Finance Document requires any party to it to reimburse or indemnify a Finance Party
for any
 
cost
 
or expense,
 
that
 
party
 
shall reimburse
 
or indemnify
 
(as
 
the case
 
may be)
 
such
Finance
 
Party
 
for
 
the
 
full
 
amount
 
of
 
such
 
cost
 
or
 
expense,
 
including
 
such
 
part
 
thereof
 
as
represents
 
VAT
 
save
 
to
 
the
 
extent
 
that
 
such
 
Finance
 
Party reasonably
 
determines
 
that
 
it is
entitled to credit or repayment in respect of such VAT
 
from the relevant tax authority.
 
(d)
 
Any reference in this clause
 
to any party shall, at
 
any time when such
 
party is treated as
a member
 
of
 
a group
 
for
 
VAT
 
purposes,
 
include
 
(where
 
appropriate
 
and
 
unless
 
the context
otherwise requires) a reference to
 
the representative member of
 
such group at such time
 
(the
term “representative member” to
 
have the
 
same meaning as
 
in the Value Added
 
Tax Act 1994).
 
(e)
 
In relation to any
 
supply made by
 
a Finance Party
 
to any party
 
under a Finance
 
Document, if
reasonably requested
 
by such Finance
 
Party,
 
that party
 
must promptly
 
provide such
 
Finance
Party with details
 
of that party's
 
VAT
 
registration and such
 
other information
 
as is reasonably
requested in
 
connection with
 
such Finance
 
Party's VAT
 
reporting requirements
 
in relation
 
to
such supply.
 
13.8
 
FATCA
 
information
(a)
 
Subject to
 
paragraph
 
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;
(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
 
paragraph
 
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
 
above shall not
 
oblige any Finance
 
Party to do
 
anything, and paragraph
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
 
paragraphs
 
or
above (including,
 
for the
 
avoidance of
 
doubt, where
 
paragraph
 
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.
 
13.9
 
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 and,
 
in addition, shall notify
 
the Borrowers and the
 
Agent and
the Agent shall notify the other Finance Parties.
 
14
 
Increased Costs
14.1
 
Increased costs
(a)
 
Subject
 
to
 
clause
(Exceptions)
,
 
the
 
Borrowers
 
shall,
 
within
 
three
 
Business
 
Days
 
of
 
a
demand by
 
the
 
Agent, pay
 
for the
 
account
 
of a
 
Finance
 
Party the
 
amount of
 
any
 
Increased
Cost incurred by that Finance Party or any of its Affiliates
 
which:
(i)
 
arises
 
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 after the date of this Agreement; and/or
(ii)
 
is a Basel III Increased Cost; and/or
(iii)
 
is a Reformed Basel III Increased Cost.
(b)
 
In this Agreement
Increased Costs
 
means:
(i)
 
a reduction in the rate
 
of return from the
 
Facility or on a
 
Finance Party's (or its
 
Affiliate's)
overall capital;
(ii)
 
an additional or increased cost; or
(iii)
 
a reduction of any amount due and payable under any
 
Finance Document,
which is
 
incurred or
 
suffered
 
by a
 
Finance Party
 
or any
 
of its
 
Affiliates to
 
the extent
 
that it
 
is
attributable to that Finance Party having entered into its Commitment or funding or
 
performing
its obligations under any Finance Document.
 
14.2
 
Increased cost claims
(a)
 
A
 
Finance
 
Party
 
intending
 
to
 
make
 
a
 
claim
 
pursuant
 
to
 
clause
 
(Increased
 
costs)
 
shall
notify the Agent
 
of the event giving
 
rise to the
 
claim, following which
 
the Agent shall
 
promptly
notify the Borrowers.
 
(b)
 
Each
 
Finance
 
Party
 
shall,
 
as
 
soon
 
as
 
practicable
 
after
 
a
 
demand
 
by
 
the
 
Agent,
 
provide
 
a
certificate confirming the amount of its Increased Costs.
 
14.3
 
Exceptions
(a)
 
Clause
(Increased costs)
 
does not apply to the extent any Increased Cost is:
(i)
 
attributable to a Tax
 
Deduction required by law to be made by an Obligor;
(ii)
 
attributable to a FATCA
 
Deduction required to be made by a Party;
(iii)
 
compensated for by clause
(Tax
 
indemnity)
 
(or would have been compensated
 
for
under clause
(Tax indemnity)
 
but was not so compensated solely because any of
the exclusions in paragraph
 
of clause
(Tax
 
indemnity)
applied); or
(iv)
 
attributable to the
 
wilful breach by
 
the relevant Finance
 
Party or its Affiliates
 
of any law
or regulation.
(b)
 
In paragraph
 
above, a
 
reference to
 
a Tax
 
Deduction has
 
the same
 
meaning given
 
to the
term in clause
(Definitions)
.
 
15
 
Other indemnities
15.1
 
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; and/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, within
 
three Business
 
Days of
 
demand by
 
a
Finance
 
Party,
 
indemnify
 
each
 
Finance
 
Party to
 
whom
 
that
 
Sum
 
is due
 
against
 
any Losses
arising out of or as a result of the conversion including any discrepancy between (i)
 
the rate of
exchange used to convert
 
that Sum from the First
 
Currency into the Second
 
Currency and (ii)
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.
 
15.2
 
Other indemnities
The Borrowers
 
shall (or
 
shall procure that
 
another Obligor will),
 
within three Business
 
Days of
 
demand
by a
 
Finance Party, indemnify each
 
Finance Party against
 
any and
 
all Losses incurred
 
by that
 
Finance
Party as a result of:
(a)
 
the occurrence of any Event of Default;
(b)
 
a failure
 
by
 
an Obligor
 
to
 
pay any
 
amount
 
due
 
under
 
a Finance
 
Document
 
on
 
its
 
due
 
date,
including without limitation, any and all Losses arising as a
 
result of clause
(Sharing among
the Finance Parties)
;
(c)
 
funding, or
 
making arrangements
 
to fund,
 
its participation
 
in the
 
Utilisation
 
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 that
Finance Party alone); or
(d)
 
the Loan
 
(or
 
part of
 
the Loan)
 
not being
 
prepaid in
 
accordance with
 
a notice
 
of
 
prepayment
given by the Borrowers.
 
15.3
 
Indemnity to the Agent and the Security Agent
The Borrowers shall promptly indemnify the Agent and the Security
 
Agent against:
(a)
 
any and
 
all Losses
 
(together with
 
any applicable
 
VAT)
 
incurred by
 
the Agent
 
or the
 
Security
Agent
(acting reasonably) as a result of:
(i)
 
investigating any event which it reasonably believes is
 
a Default;
(ii)
 
acting or
 
relying on
 
any notice,
 
request or
 
instruction which
 
it reasonably
 
believes to
be genuine, correct and appropriately authorised;
(iii)
 
instructing lawyers, accountants, tax
 
advisers, insurance consultants,
 
ship managers,
valuers,
 
surveyors
 
or
 
other
 
professional
 
advisers
 
or
 
experts
 
as
 
permitted
 
under
 
the
Finance Documents; or
(iv)
 
any
 
action
 
taken
 
by
 
the
 
Agent
 
or
 
the
 
Security
 
Agent
 
or
 
any
 
of
 
its
 
or
 
their
representatives, agents or contractors in connection with
 
any powers conferred by any
Security
 
Document
 
to
 
remedy
 
any
 
breach
 
of
 
any
 
Obligor's
 
obligations
 
under
 
the
Finance Documents, and
(b)
 
any
 
and
 
all
 
Losses
 
(including,
 
without
 
limitation,
 
in
 
respect
 
of
 
liability
 
for
 
negligence
 
or
 
any
other category of liability
 
whatsoever) (together with any applicable
 
VAT)
 
incurred by the Agent
or the
 
Security Agent
 
(otherwise than
 
by reason
 
of the
 
Agent's
or the
 
Security Agent's
 
gross
negligence or wilful misconduct) (or,
 
in the case of any cost, loss or liability pursuant to clause
(Disruption to payment systems etc.)
 
notwithstanding the Agent's or
 
the Security Agent's
negligence, gross negligence or
 
any other category
 
of liability whatsoever but
 
not including any
claim
 
based
 
on
 
the
 
fraud
 
of
 
the
 
Agent)
 
in
 
acting
 
as
 
Agent
 
or
 
the
 
Security
 
Agent
 
under
 
the
Finance Documents.
 
15.4
 
Indemnity concerning security
(a)
 
The
 
Borrowers
 
shall
 
(or
 
shall
 
procure
 
that
 
another
 
Obligor
 
will)
 
promptly
 
indemnify
 
each
Indemnified Person against any and all Losses (together with any applicable VAT)
 
incurred by
it as a result of:
(i)
 
any failure by
 
the Borrowers
 
to comply with
 
its obligations
 
under clause
 
(Costs and
expenses) or any similar provision in any other Finance Document;
(ii)
 
acting or relying on any notice, request
 
or instruction which it reasonably believes
 
to be
genuine, correct and appropriately authorised;
(iii)
 
the taking, holding, protection or enforcement of the Transaction
 
Security;
(iv)
 
the exercise
 
or purported
 
exercise of
 
any of
 
the rights,
 
powers, discretions,
 
authorities
and
 
remedies
 
vested
 
in
 
the
 
Security
 
Agent
 
and/or
 
any
 
other
 
Finance
 
Party
 
in
 
whose
favour any Security Document has been granted and each Receiver and each Delegate
by the
 
Finance
 
Documents
 
or by
 
law (otherwise,
 
in each
 
case,
 
than
 
by reason
 
of the
relevant Security
 
Agent's and/or
 
other Finance
 
Party’s, Receiver's
 
or Delegate's
 
gross
negligence or wilful misconduct);
(v)
 
any default by any Obligor in the performance
 
of any of the obligations expressed to be
assumed by it in the Finance Documents;
(vi)
 
any claim (whether
 
relating to the
 
environment or
 
otherwise) made or
 
asserted against
the
 
Indemnified
 
Person
 
which
 
would
 
not
 
have
 
arisen
 
but
 
for
 
the
 
execution
 
or
enforcement of one
 
or more Finance
 
Documents (unless
 
and to the
 
extent it is
 
caused
by the gross negligence or wilful misconduct of that Indemnified
 
Person);
 
(vii)
 
instructing
 
lawyers,
 
accountants,
 
tax
 
advisers,
 
insurance
 
consultants,
 
ship
 
managers,
valuers,
 
surveyors
 
or
 
other
 
professional
 
advisers
 
or
 
experts
 
as
 
permitted
 
under
 
the
Finance Documents; or
(viii)
 
(in the case of
 
the Security Agent and/or any other
 
Finance Party, any Receiver and any
Delegate) acting as Security
 
Agent and/or as holder of
 
any of the Transaction
 
Security,
Receiver or
 
Delegate under
 
the Finance
 
Documents or
 
which otherwise
 
relates to
 
the
Charged
 
Property
 
(otherwise,
 
in
 
each
 
case,
 
than
 
by
 
reason
 
of
 
the
 
relevant
 
Security
Agent's and/or other Finance
 
Party’s, Receiver's or Delegate's
 
gross negligence or wilful
misconduct).
 
(b)
 
The Security Agent
 
may, in priority to any
 
payment to the
 
other Finance Parties,
 
indemnify itself
out of the Charged
 
Property in respect of, and
 
pay and retain, all sums
 
necessary to give effect
to the indemnity
 
in this clause
 
and shall have
 
a lien on
 
the Transaction
 
Security and the
proceeds of the enforcement of the Transaction
 
Security for all moneys payable to it.
 
15.5
 
Continuation of indemnities
The indemnities by the Borrowers
 
in favour of any Indemnified Persons
 
contained in this Agreement
shall
 
continue
 
in
 
full
 
force
 
and
 
effect
 
notwithstanding
 
any
 
breach
 
by
 
any
 
Finance
 
Party
 
or
 
the
Borrowers of the terms
 
of this Agreement, the repayment
 
or prepayment of the Loan,
 
the cancellation
of the
 
Total Commitments or the
 
repudiation by
 
any Finance
 
Party or
 
the Borrowers of
 
this Agreement.
 
15.6
 
Third Parties Act
(a)
 
Each Indemnified Person may rely on
 
the terms of clause
(Indemnity concerning security)
and
 
clauses
(Tax
 
gross-up
 
and
 
indemnities)
 
and
(Interest)
 
insofar
 
as
 
it
 
relates
 
to
interest
 
on,
 
or
 
the
 
calculation
 
of,
 
any
 
amount
 
demanded
 
by
 
that
 
Indemnified
 
Person
 
under
clause
(Indemnity concerning security)
, subject to
 
clause
(Third party rights)
and the
provisions of the Third Parties Act.
 
(b)
 
Where an Indemnified Person (other
 
than a Finance Party) (the
Relevant Beneficiary
) who is:
(i)
 
appointed by a Finance Party under the Finance Documents;
(ii)
 
an Affiliate of any such person or that Finance Party;
 
or
(iii)
 
an
 
officer,
 
director,
 
employee,
 
adviser,
 
representative
 
or
 
agent
 
of
 
any
 
of
 
the
 
above
persons or that Finance Party,
is entitled to receive any amount (a
Third Party Claim
) under any of the provisions referred to
in paragraph
 
above:
(A)
 
the Borrowers shall at
 
the same time as
 
the relevant Third Party
 
Claim is due to
the Relevant
 
Beneficiary
 
pay to
 
that Finance
 
Party a
 
sum in
 
the amount
 
of that
Third Party Claim;
(B)
 
payment of
 
such sum
 
to that
 
Finance Party
 
shall, to
 
the extent
 
of that
 
payment,
satisfy the
 
corresponding obligations of
 
the Borrowers to
 
pay the
 
Third Party
 
Claim
to the Relevant Beneficiary; and
(C)
 
if the Borrowers pay
 
the Third Party Claim
 
direct to the Relevant
 
Beneficiary, such
payment shall, to
 
the extent of that
 
payment, satisfy the corresponding obligations
of the Borrowers to that Finance Party under sub-paragraph
 
above.
 
15.7
 
Interest
Moneys becoming due by the Borrowers to any Indemnified Person under the indemnities
 
contained
in this clause
(Other indemnities)
or elsewhere in this Agreement
 
shall be paid on demand
 
made
by such Indemnified Person
 
and shall be paid
 
together with interest on
 
the sum demanded from
 
the
date of demand therefor to
 
the date of reimbursement
 
by the Borrowers to such
 
Indemnified Person
(both before and after judgment) at the rate referred to in clause
(Default interest)
.
 
15.8
 
Exclusion of liability
Without prejudice
 
to any
 
other provision
 
of the
 
Finance Documents
 
excluding or
 
limiting the
 
liability
of
 
any
 
Indemnified
 
Person,
 
no
 
Indemnified
 
Person
 
will
 
be
 
in
 
any
 
way
 
liable
 
or
 
responsible
 
to
 
any
Obligor (whether as mortgagee in possession
 
or otherwise) who is a Party
 
or is a party to a Finance
Document to which this
 
clause applies for any
 
loss or liability arising
 
from any act, default,
 
omission
or misconduct
 
of that Indemnified
 
Person, except
 
to the extent
 
caused by
 
its own
 
gross negligence
or wilful
 
misconduct.
 
Any Indemnified Person
 
may rely on
 
this clause
 
subject to clause
 
(Third
party rights)
 
and the provisions of the Third Parties Act.
 
16
 
Mitigation by the Lenders
16.1
 
Mitigation
(a)
 
Each
 
Finance
 
Party
 
shall,
 
in
 
consultation
 
with
 
the
 
Borrowers,
 
take
 
all
 
reasonable
 
steps
 
to
mitigate any
 
circumstances
 
which arise
 
and
 
which
 
would result
 
in the
 
Facility
 
ceasing
 
to
 
be
available or any amount becoming payable under or pursuant
 
to, or cancelled pursuant to, any
of
 
clause
(Illegality)
,
 
clause
(Tax
 
gross-up
 
and
 
indemnities)
 
or
 
clause
(Increased
costs)
 
including (but not
 
limited to) assigning
 
its rights under
 
the Finance Documents
 
to another
Affiliate or Facility Office.
 
(b)
 
Paragraph
 
above does not in
 
any way limit the
 
obligations of any Obligor
 
under the Finance
Documents.
 
16.2
 
Limitation of liability
(a)
 
The Borrowers
 
shall promptly indemnify
 
each Finance
 
Party for
 
all costs
 
and expenses incurred
by that Finance Party as a result of steps taken by it under
 
clause
(Mitigation)
.
 
(b)
 
A Finance Party is not
 
obliged to take any steps under
 
clause
(Mitigation)
 
if, in the opinion
of that Finance Party (acting reasonably), to do so might be
 
prejudicial to it.
 
17
 
Costs and expenses
17.1
 
Transaction expenses
The Borrowers shall,
 
promptly on demand,
 
pay the Agent,
 
the Security Agent
 
and the Arranger,
 
the
Sustainability Co-ordinator,
 
the Hedging Provider, the amount of all documented costs and
 
expenses
(including but not
 
limited to fees,
 
costs and expenses
 
of lawyers, accountants,
 
tax advisers, insurance
consultants, ship
 
managers, valuers,
 
surveyors or
 
other professional advisers
 
or experts
 
as well as
costs
 
related
 
to
 
operating
 
a
 
secure
 
website
 
for
 
communicating
 
with
 
Lenders)
 
(together
 
with
 
any
applicable VAT)
 
reasonably incurred by
 
any of them (and,
 
in the case
 
of the Security
 
Agent, by any
Receiver or
 
Delegate) in
 
connection with the
 
negotiation, preparation, printing,
 
execution, syndication,
registration and perfection and any release, discharge
 
or reassignment of:
(a)
 
this Agreement,
 
the Hedging
 
Master Agreement
 
and any
 
other documents
 
referred to
 
in this
Agreement and the Security Documents;
(b)
 
any
 
other
 
Finance
 
Documents
 
executed
 
or
 
proposed
 
to
 
be
 
executed
 
after
 
the
 
date
 
of
 
this
Agreement
 
including any
 
executed to
 
provide
 
additional
 
security
 
under
 
clause
(Minimum
security value)
 
or executed pursuant to
 
clause
 
(
Sustainability Margin Adjustment
) or clause
 
(
Changes to Reference Rates
);or
(c)
 
any Security Interest expressed or intended to be granted by
 
a Finance Document.
 
17.2
 
Amendment costs
If:
(a)
 
an Obligor requests an amendment, waiver or consent;
 
or
(b)
 
an amendment or waiver
 
is required pursuant to
 
clause
 
(
Sustainability Margin Adjustment
),
clause
 
(
Change of currency
) or clause
 
(
Changes to Reference Rates
),
the Borrowers
 
shall, within
 
three
 
Business Days
 
of
 
demand,
 
reimburse
 
each of
 
the Agent
 
and the
Security
 
Agent
 
for
 
the
 
amount
 
of
 
all documented
 
costs
 
and
 
expenses
 
(including
 
but
 
not
 
limited
 
to
fees,
 
costs
 
and
 
expenses
 
of
 
lawyers,
 
accountants,
 
tax
 
advisers,
 
insurance
 
consultants,
 
ship
managers, valuers,
 
surveyors
 
or other
 
professional
 
advisers
 
or experts
 
as well
 
as costs
 
related to
operating
 
a
 
secure
 
website
 
for
 
communicating
 
with
 
Lenders)
 
(together
 
with
 
any
 
applicable
 
VAT)
reasonably incurred
 
by the
 
Agent and
 
the Security
 
Agent (and
 
in the case
 
of the
 
Security Agent
 
by
any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or
requirement.
 
17.3
 
Agent’s and Security Agent’s
 
management time and additional remuneration
(a)
 
Any amount
 
payable to
 
the Agent
 
or the
 
Security Agent
 
under clause
(Indemnity to
 
the
Agent and the Security Agent)
, clause
(Indemnity concerning security),
clause
(Costs
and expenses)
 
or clause
(Lenders’ indemnity to the
 
Agent and others)
shall include the
cost of utilising the Agent’s
 
or (as the case may be) the
 
Security Agent’s management time
 
or
other resources and will be calculated on the basis of such reasonable daily or hourly rates as
the Agent or
 
(as the case may
 
be) the Security
 
Agent may notify
 
to the Borrowers and
 
the other
Finance Parties, and is in addition to any
 
other fee paid or payable to the Agent
 
or the Security
Agent.
(b)
 
Any
 
cost
 
of
 
utilising
 
the
 
Agent’s
 
management
 
time
 
or
 
other
 
resources
 
shall
 
include,
 
without
limitation,
 
any
 
such
 
costs
 
in
 
connection
 
with
 
clause
 
(
Disenfranchisement
 
of
 
Guarantor
Affiliates
).
(c)
 
Without prejudice to paragraph
 
above, in the event of:
(i)
 
a Default;
(ii)
 
the
 
Agent
 
or
 
the
 
Security
 
Agent
 
being
 
requested
 
by
 
an
 
Obligor
 
or
 
the
 
other
 
Finance
Parties to undertake duties which the Agent or (as the case
 
may be) the Security Agent
and
 
the
 
Borrowers
 
agree
 
to
 
be
 
of
 
an
 
exceptional
 
nature
 
or
 
outside
 
the
 
scope
 
of
 
the
normal duties of
 
the Agent or
 
(as the case
 
may be) the
 
Security Agent under the
 
Finance
Documents; or
(iii)
 
the Agent or
 
(as the case
 
may be) the
 
Security Agent and
 
the Borrowers agreeing
 
that
it is otherwise appropriate in the circumstances,
the Borrowers shall pay to the
 
Agent or (as the case may
 
be) the Security Agent any additional
remuneration
 
that
 
may
 
be
 
agreed
 
between
 
them
 
or
 
determined
 
pursuant
 
to
 
paragraph
below.
(d)
 
If the Agent
 
or (as the
 
case may be)
 
the Security Agent
 
and the Borrowers
 
fail to agree
 
upon
the nature of the
 
duties, or upon the
 
additional remuneration referred to in paragraph
 
above
or whether
 
additional remuneration
 
is appropriate
 
in the
 
circumstances,
 
any dispute
 
shall be
determined by
 
an investment
 
bank (acting
 
as an
 
expert and
 
not as
 
an arbitrator)
 
selected by
the Agent or
 
(as the case may
 
be) the Security
 
Agent and approved by
 
the Borrowers or, failing
approval,
 
nominated
 
(on
 
the
 
application
 
of
 
the
 
Agent
 
or
 
(as
 
the
 
case
 
may
 
be)
 
the
 
Security
Agent) by the President for the time being of the Law Society of England and Wales (the costs
of
 
the
 
nomination
 
and
 
of
 
the
 
investment
 
bank
 
being
 
payable
 
by
 
the
 
Borrowers)
 
and
 
the
determination of any investment bank shall be final and binding
 
upon the Parties.
17.4
 
Enforcement, preservation and other costs
The Borrowers
 
shall, on
 
demand by
 
a Finance
 
Party,
 
pay to
 
each Finance
 
Party the
 
amount of
 
all
documented costs
 
and expenses
 
(including but
 
not limited
 
to fees,
 
costs and
 
expenses of
 
lawyers,
accountants,
 
tax
 
advisers,
 
insurance
 
consultants,
 
ship
 
managers,
 
valuers,
 
surveyors
 
or
 
other
professional
 
advisers
 
or
 
experts
 
as
 
well
 
as
 
costs
 
related
 
to
 
operating
 
a
 
secure
 
website
 
for
communicating with
 
Lenders)
 
(together with
 
any applicable
 
VAT)
 
incurred by
 
that Finance
 
Party in
connection with:
(a)
 
the enforcement
 
of, or
 
the preservation
 
of any
 
rights under,
 
any Finance
 
Document and
 
the
Transaction Security
 
and any proceedings
 
instituted by or against
 
any Indemnified Person
 
as
a consequence of taking or holding the Security Documents
 
or enforcing those rights;
(b)
 
subject
 
to
 
clause
 
(
Expenses
 
of
 
valuation
),
 
any
 
valuation
 
carried
 
out
 
under
 
clause
(Minimum security value)
; or
(c)
 
any
 
inspection
 
carried
 
out
 
under
 
clause
(Inspection
 
and
 
notice
 
of
 
dry-docking)
 
or
 
any
survey carried out under clause
(Survey report)
.
Section 6 -
 
Guarantee
18
 
Guarantee and indemnity
18.1
 
Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
(a)
 
guarantees to
 
the Security
 
Agent (as
 
trustee for
 
the Finance
 
Parties)
 
and the
 
other
 
Finance
Parties punctual performance by each other Obligor of all such Obligor's obligations under the
Finance Documents;
(b)
 
undertakes with the Security
 
Agent (as trustee for the
 
Finance Parties) and the
 
other Finance
Parties
 
that
 
whenever
 
another
 
Obligor
 
does
 
not
 
pay
 
any
 
amount
 
when
 
due
 
under
 
or
 
in
connection with any Finance Document, it shall
 
immediately on demand pay that amount as if
it was the principal obligor; and
(c)
 
agrees
 
with
 
the
 
Security
 
Agent
 
(as
 
trustee
 
for
 
the
 
Finance
 
Parties)
 
and
 
the
 
other
 
Finance
Parties that if any obligation guaranteed by
 
it is or becomes unenforceable, invalid or
 
illegal, it
will, as
 
an
 
independent
 
and
 
primary
 
obligation
 
indemnify
 
that
 
Finance
 
Party
 
immediately
 
on
demand against any cost, loss or liability it incurs as a result of another Obligor not paying any
amount which
 
would, but
 
for such
 
unenforceability,
 
invalidity or
 
illegality,
 
have been
 
payable
by such Obligor under any
 
Finance Document on the
 
date when it would have
 
been due. The
amount
 
payable
 
by
 
the
 
Guarantor
 
under
 
this
 
indemnity
 
will not
 
exceed
 
the
 
amount
 
it
 
would
have had
 
to pay
 
under
 
this clause
 
if the
 
amount
 
claimed had
 
been recoverable
 
on the
basis of a guarantee.
 
18.2
 
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of
 
sums payable by
any Obligor under
 
the Finance Documents,
 
regardless of any
 
intermediate payment
 
or discharge in
whole or in part.
 
18.3
 
Reinstatement
If any discharge, release or arrangement (whether in respect
 
of the obligations of any Obligor or any
security for those obligations
 
or otherwise) is
 
made by a Finance
 
Party 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
 
Guarantor under this
clause
 
will continue or be reinstated as
 
if the discharge, release or arrangement had
 
not occurred.
 
18.4
 
Waiver of defences
The obligations of the Guarantor under this clause
 
will not be affected by an act, omission, matter
or thing (whether or not known to
 
it or any Finance Party) which,
 
but for this clause
, would reduce,
release or prejudice any of its obligations under this clause
 
including (without limitation):
(a)
 
any time, waiver or consent granted to, or composition
 
with, any Obligor or other person;
(b)
 
the release
 
of any
 
other Obligor
 
or any
 
other person
 
under the
 
terms
 
of any
 
composition
 
or
arrangement with any creditor of any other Obligor;
(c)
 
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 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 an 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.
 
18.5
 
Guarantor intent
Without
 
prejudice
 
to
 
the
 
generality
 
of
 
clause
(Waiver
 
of
 
defences)
,
 
the
 
Guarantor
 
expressly
confirms
 
that
 
it
 
intends
 
that
 
this
 
guarantee
 
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.
 
18.6
 
Immediate recourse
The Guarantor
 
waives
 
any right
 
it may
 
have of
 
first requiring
 
any Finance
 
Party
 
(or any
 
trustee or
agent on its behalf) to proceed
 
against or enforce any other
 
rights or security or claim
 
payment from
any person before claiming from the Guarantor under this clause
. This waiver applies irrespective
of any law or any provision of a Finance Document to the
 
contrary.
 
18.7
 
Appropriations
Until all amounts
 
which may
 
be or become
 
payable by
 
the Obligors
 
under or
 
in connection with
 
the
Finance Documents
 
have been irrevocably
 
paid in full,
 
each Finance
 
Party (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 that
Finance Party (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 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
 
Guarantor or on
account of the Guarantor’s liability under this clause
.
 
18.8
 
Deferral of the Guarantor’s
 
rights
(a)
 
Until all amounts which may be
 
or become payable by the Obligors under
 
or in connection with
the
 
Finance
 
Documents
 
have
 
been
 
irrevocably
 
paid
 
in
 
full
 
and
 
unless
 
the
 
Agent
 
otherwise
directs, the Guarantor will not exercise any rights which it may have 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
(i)
 
to be indemnified by another Obligor;
(ii)
 
to claim any contribution from any other guarantor
 
of any Obligor's obligations under the
Finance Documents;
(iii)
 
to take the benefit (in whole
 
or in part and whether
 
by way of subrogation or
 
otherwise)
of
 
any
 
rights
 
of
 
the
 
Finance
 
Parties
 
under
 
the
 
Finance
 
Documents
 
or
 
of
 
any
 
other
guarantee or security
 
taken pursuant to,
 
or in connection with,
 
the Finance Documents
by any Finance Party;
(iv)
 
to
 
bring
 
legal
 
or
 
other
 
proceedings
 
for
 
an
 
order
 
requiring
 
any
 
Obligor
 
to
 
make
 
any
payment,
 
or
 
perform
 
any
 
obligation,
 
in
 
respect
 
of
 
which
 
the
 
Guarantor
 
has
 
given
 
a
guarantee, undertaking or indemnity under clause
 
(Guarantee and indemnity);
(v)
 
to exercise any right of set-off against any
 
other Obligor; and/or
(vi)
 
to claim or
 
prove as a
 
creditor of any
 
other Obligor in
 
competition with any
 
Finance Party.
 
(b)
 
If the
 
Guarantor
 
receives
 
any benefit,
 
payment or
 
distribution
 
in relation
 
to such
 
rights it
 
will
promptly
 
pay
 
an
 
equal
 
amount
 
to
 
the
 
Agent
 
for
 
application
 
in
 
accordance
 
with
 
clause
(Payment mechanics)
.
 
This only
 
applies until
 
all amounts
 
which may
 
be or
 
become payable
by the Obligors
 
under or in
 
connection with the
 
Finance Documents have been
 
irrevocably paid
in full.
 
18.9
 
Additional security
This guarantee is
 
in addition to
 
and is not
 
in any way
 
prejudiced by any
 
other guarantee or
 
security
now or subsequently held by any Finance Party.
18.10
 
Amendments and waivers in writing
No
 
waivers,
 
consents,
 
discharges
 
or
 
releases
 
by
 
the
 
Finance
 
Parties
 
or
 
amendments
 
to,
 
of,
 
or
 
in
connection with,
 
the provisions
 
of the
 
Guarantee
 
may be
 
made or
 
given, unless
 
they are
 
made or
given in writing by the Parties and with the prior written
 
consent of the Finance Parties.
Section 7 -
 
Representations, Undertakings and Events of Default
19
 
Representations
19.1
 
Representations
Each Obligor
 
who is
 
a Party
 
makes and
 
repeats the
 
representations
 
and warranties
 
set out
 
in this
clause 19 to each Finance Party at the times
 
specified in clause
 
(
Times when representations
are made
).
19.2
 
Status
(a)
 
Each
 
Obligor
 
is
 
a
 
corporation
 
duly
 
incorporated
 
and
 
validly
 
existing
 
under
 
the
 
laws
 
of
 
its
Original Jurisdiction.
 
(b)
 
Each Obligor has power
 
and authority to own
 
its assets and
 
to carry on its
 
business as it is
 
now
being conducted.
 
19.3
 
Binding obligations
Subject to the Legal Reservations:
(a)
 
the obligations
 
expressed to
 
be assumed
 
by each
 
Obligor in
 
each Transaction
 
Document to
which it is,
 
or is to
 
be, a party
 
are or,
 
when entered into
 
by it, will
 
be legal, valid,
 
binding and
enforceable obligations; and
(b)
 
(without limiting
 
the generality
 
of paragraph
 
(a) above)
 
each Security
 
Document to
 
which an
Obligor is,
 
or will
 
be, a
 
party,
 
creates or
 
will create
 
the Security
 
Interests which
 
that Security
Document purports to create and those Security Interests
 
are or will be valid and effective.
 
19.4
 
Non-conflict
The
 
entry
 
into
 
and
 
performance
 
by
 
each
 
Obligor
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by
 
the
Transaction Documents and the granting of the Transaction
 
Security do not and will not conflict with:
(a)
 
any law or regulation applicable to any Obligor;
(b)
 
the Constitutional Documents of any Obligor; or
(c)
 
any agreement or other instrument binding upon any Obligor or
 
its assets,
or
 
constitute
 
a
 
default
 
or
 
termination
 
event
 
(however
 
described)
 
under
 
any
 
such
 
agreement
 
or
instrument
 
or result
 
in
 
the
 
creation
 
of
 
any
 
Security
 
Interest
 
(save
 
for a
 
Permitted
 
Maritime
 
Lien
 
or
under a Security Document) on any Obligor's assets, rights
 
or revenues.
 
19.5
 
Power and authority
(a)
 
Each Obligor has
 
the power
 
to enter into,
 
perform and deliver
 
and comply with
 
its obligations
under, and has taken all necessary action to authorise its entry into, performance
 
and delivery
of, and compliance
 
with, each Transaction Document to
 
which it is,
 
or is to
 
be, a party and
 
each
of the transactions contemplated by those documents.
 
(b)
 
No
 
limitation
 
on
 
any
 
Obligor's
 
powers
 
to
 
borrow,
 
create
 
security
 
or
 
give
 
guarantees
 
will
 
be
exceeded as a result of any transaction under,
 
or the entry into of, any Transaction
 
Document
to which such Obligor is, or is to be, a party.
 
19.6
 
Validity and admissibility
 
in evidence
(a)
 
All Authorisations required or considered by the Agent to be
 
desirable:
(i)
 
to
 
enable
 
each
 
Obligor
 
lawfully
 
to
 
enter
 
into,
 
exercise
 
its
 
rights
 
and
 
comply
 
with
 
its
obligations under each Transaction
 
Document to which it is a party;
(ii)
 
to make each
 
Transaction
 
Document to which
 
it is a party
 
admissible in evidence
 
in its
Relevant Jurisdictions; and
(iii)
 
to ensure that the Transaction Security has the priority and ranking contemplated by the
Security Documents,
have been obtained or
 
effected and are in
 
full force and effect
 
except any Authorisation or
 
filing
referred
 
to
 
in
 
clause
(No
 
filing
 
or
 
stamp
 
taxes)
,
 
which
 
Authorisation
 
or
 
filing
 
will
 
be
promptly obtained or effected within any applicable
 
period.
 
(b)
 
All Authorisations
 
necessary
 
for the
 
conduct of
 
the business,
 
trade and
 
ordinary
 
activities of
each Obligor have been obtained or effected
 
and are in full force and effect.
 
19.7
 
Governing law and enforcement
(a)
 
The choice of governing law
 
of any Transaction Document
 
will be recognised and enforced
 
in
each Obligor's Relevant Jurisdictions.
 
(b)
 
Any
 
judgment
 
obtained
 
in
 
relation
 
to
 
any
 
Transaction
 
Document
 
in
 
the
 
jurisdiction
 
of
 
the
governing law
 
of that
 
Transaction
 
Document will
 
be recognised
 
and enforced
 
in its
 
Relevant
Jurisdictions.
 
19.8
 
No misleading information
(a)
 
Any factual
 
information contained in
 
the Information Package
 
is true
 
and accurate in
 
all material
respects as at the date of the
 
relevant report or document containing the information or (as the
case may be) as at the date the information is expressed to
 
be given.
 
(b)
 
Any financial
 
projection or
 
forecast contained
 
in the
 
Information Package
 
has been
 
prepared
on the basis
 
of recent historical
 
information and
 
on the basis
 
of reasonable assumptions
 
and
was fair (as at
 
the date of the
 
relevant report or document containing
 
the projection or forecast)
and arrived at after careful consideration.
 
(c)
 
The expressions of opinion or intention provided by or on
 
behalf of an Obligor for the purposes
of the
 
Information Package
 
were made
 
after careful
 
consideration and
 
(as at
 
the date
 
of the
relevant report
 
or document
 
containing
 
the expression
 
of opinion
 
or
 
intention)
 
were fair
 
and
based on reasonable grounds.
 
(d)
 
No event
 
or circumstance
 
has occurred
 
or arisen
 
and no
 
information
 
has been
 
omitted from
the
 
Information
 
Package
 
and
 
no
 
information
 
has
 
been
 
given
 
or
 
withheld
 
that
 
results
 
in
 
the
information, opinions, intentions, forecasts or
 
projections contained in the
 
Information Package
being untrue or misleading in any material respect.
 
(e)
 
All other written information provided by any Obligor (including its advisers) to a Finance Party
was true, complete
 
and accurate in
 
all material respects
 
as at the date
 
it was provided
 
and is
not misleading in any respect.
 
(f)
 
For the purposes
 
of this
 
clause
,
Information Package
 
means any
 
information provided
by any Obligor to any of the Finance Parties in connection
 
with the Transaction Documents or
the transactions referred to in them.
 
19.9
 
Original Financial Statements
(a)
 
The
 
Original
 
Financial
 
Statements
 
were
 
prepared
 
in
 
accordance
 
with
 
GAAP
 
consistently
applied.
 
(b)
 
The Original Financial Statements fairly present the (consolidated) financial condition as
 
at the
end
 
of
 
the
 
relevant
 
Financial
 
Year
 
and
 
the
 
(consolidated)
 
results
 
of
 
operations
 
during
 
the
relevant Financial Year
 
of the Guarantor.
 
(c)
 
There has
 
been no
 
material adverse
 
change in
 
the assets,
 
business or
 
financial condition
 
of
any Obligor
 
(or
 
the assets,
 
business
 
or consolidated
 
financial
 
condition
 
of the
 
Group, in
 
the
case of the Guarantor)
 
since the date of the Original Financial Statements.
 
19.10
 
Pari passu ranking
Each Obligor's payment
 
obligations under
 
the Finance Documents
 
to which it
 
is, or is
 
to be, a
 
party
rank at least pari passu with all its
 
other present and future unsecured
 
and unsubordinated payment
obligations, except for obligations mandatorily preferred by
 
law applying to companies generally.
 
19.11
 
Ranking and effectiveness of security
Subject to the Legal Reservations and any filing, registration or notice
 
requirements which is referred
to in any Legal Opinion:
(a)
 
the Transaction
 
Security has
 
(or will
 
have when
 
the relevant
 
Security Documents
 
have been
executed) the priority which it is expressed to have in the Security
 
Documents;
(b)
 
the
 
Charged
 
Property
 
is
 
not
 
subject
 
to
 
any
 
Security
 
Interest
 
other
 
than
 
Permitted
 
Security
Interests; and
(c)
 
the
 
Transaction
 
Security
 
will
 
constitute
 
perfected
 
security
 
on
 
the
 
assets
 
described
 
in
 
the
Security Documents.
 
19.12
 
Centre of main interests and establishments
Its centre of main interest
 
(as that term is
 
used in Article 3(1)
 
of the Regulation (EU)
 
2015/848 of 20
May 2015
 
on insolvency
 
proceedings (recast)
 
(the
Regulation
)) of
 
each Borrower
 
is situated
 
in its
Original Jurisdiction and no
 
Borrower has an “establishment”
 
(as that term is used
 
in Article 2(10) of
the Regulation) in any other jurisdiction.
 
19.13
 
Ownership of Charged Property
Each Obligor is the sole legal and beneficial owner of the Charged Property over
 
which it purports to
grant a Security Interest under the Security Documents.
 
19.14
 
No insolvency
No
 
corporate
 
action,
 
legal
 
proceeding
 
or
 
other
 
procedure
 
or
 
step
 
described
 
in
 
clause
 
31.10
(Insolvency
 
proceedings)
 
or
 
creditors'
 
process
 
described
 
in
 
clause
 
31.11
(Creditors'
 
process)
 
has
been taken or, to
 
the knowledge of any Obligor,
 
threatened in relation to a Group
 
Member and none
of the circumstances described in clause 31.9
(Insolvency)
 
applies to any Group Member.
 
19.15
 
No filing or stamp taxes
Under
 
the
 
laws
 
of
 
each
 
Obligor's
 
Relevant
 
Jurisdictions
 
it
 
is
 
not
 
necessary
 
that
 
any
 
Transaction
Document to which
 
it is,
 
or is to
 
be, party be
 
filed, recorded 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
 
any
 
such
 
Transaction
 
Document
 
or
 
the
 
transactions
 
contemplated
 
by
 
the
 
Transaction
Documents except any
 
filing, recording or
 
enrolling or any
 
tax or
 
fee payable in
 
relation to any
 
Finance
Document which is referred to in
 
any Legal Opinion and which will be
 
made or paid promptly after the
date of the relevant Transaction Document
 
.
 
19.16
 
Deduction of Tax
No Obligor is required to
 
make any Tax
 
Deduction (as defined in clause
(Definitions)
) from any
payment it
 
may make
 
under any
 
Finance Document
 
to which
 
it is,
 
or is
 
to be,
 
a party
 
and no
 
other
party
 
is
 
required
 
to
 
make
 
any
 
such
 
deduction
 
from
 
any
 
payment
 
it
 
may
 
make
 
under
 
any
 
other
Transaction Document.
 
19.17
 
Tax compliance
(a)
 
No Obligor is overdue in the filing of any Tax returns or 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
any
 
Obligor
 
or
 
other
 
Group
 
Member
 
with
 
respect
 
to
 
Taxes
 
such
 
that
 
a
 
liability
 
of,
 
or
 
claim
against,
 
any
 
Obligor
 
or
 
other
 
Group
 
Member
 
is
 
reasonably
 
likely
 
to
 
arise
 
for
 
an
 
amount
 
for
which
 
adequate
 
reserves
 
have
 
not
 
been
 
provided
 
in
 
the
 
Original
 
Financial
 
Statements
 
and
which might have a Material Adverse Effect.
 
(c)
 
Each Obligor is resident for Tax
 
purposes only in its Original Jurisdiction.
 
19.18
 
Other Tax matters
The execution
 
or delivery
 
or performance
 
by any
 
Party of
 
the Finance
 
Documents will
 
not result
 
in
any Finance Party:
(a)
 
having any liability in respect of Tax
 
in any Flag State; or
(b)
 
having
 
or
 
being
 
deemed
 
to
 
have
 
a
 
place
 
of
 
business
 
in
 
any
 
Flag
 
State
 
or
 
any
 
Relevant
Jurisdiction of any Obligor.
 
19.19
 
Pension exposure
No Group Member is, or
 
may be, liable to contribute
 
funds to any form of
 
pension scheme or similar
arrangement (other than a
 
scheme or arrangement where the benefits
 
conferred by it on
 
its members
are calculated solely by reference to
 
a payment or payments made by
 
the relevant member or by any
other person in respect of that member).
 
19.20
 
No Default
(a)
 
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 (or,
 
with the expiry of a grace
period, the giving of
 
notice, the making
 
of any determination
 
or any combination
 
of any of the
foregoing, would constitute)
 
a default
 
or termination event
 
(however described) under
 
any other
agreement or instrument which
 
is binding on any Obligor
 
or to which any Obligor's
 
assets are
subject which might have a Material Adverse Effect.
 
19.21
 
No proceedings
(a)
 
No litigation, arbitration or administrative proceedings or investigations of,
 
or before, any court,
arbitral body or agency which, if adversely determined,
 
might reasonably be expected to have
a Material
 
Adverse Effect has
 
or have
 
(to the
 
best of
 
any Obligor's
 
knowledge and
 
belief (having
made due
 
and careful
 
enquiry)) been
 
started or
 
threatened against
 
any Obligor
 
or any
 
other
Group Member.
(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
 
is
 
reasonably
 
likely
 
to
 
have
 
a
 
Material
Adverse Effect
 
has (to the
 
best of any
 
Obligor's knowledge
 
and belief (having
 
made due and
careful enquiry)) been made against any Obligor or any
 
other Group Member.
19.22
 
No breach of laws
(a)
 
No Obligor
 
has breached
 
any law
 
or regulation
 
which breach
 
might have
 
a Material
 
Adverse
Effect.
 
(b)
 
No labour dispute is current or, to the
 
best of any Obligor's knowledge and
 
belief (having made
due and careful enquiry), threatened against any Obligor which might
 
have a Material Adverse
Effect.
 
19.23
 
Environmental matters
(a)
 
No Environmental Law applicable to any Fleet
 
Vessel and/or any Obligor
 
has been violated in
a manner or to an extent which might have, a Material Adverse
 
Effect.
 
(b)
 
All
 
consents,
 
licences
 
and
 
approvals
 
required
 
under
 
such
 
Environmental
 
Laws
 
have
 
been
obtained and are currently in force.
 
(c)
 
No Environmental Claim has been
 
made or, to
 
the best of any Obligor's
 
knowledge and belief
(having made
 
due and
 
careful enquiry),
 
is threatened
 
or pending
 
against any
 
Obligor or
 
any
Ship
 
where
 
that
 
claim
 
might
 
have
 
a
 
Material
 
Adverse
 
Effect
 
and
 
there
 
has
 
been
 
no
Environmental Incident which has given, or might give, rise to such
 
a claim.
 
19.24
 
Anti-corruption law
Each Group Member
 
has conducted its
 
businesses in compliance with
 
applicable anti-corruption laws
and
 
has
 
instituted
 
and
 
maintained
 
policies
 
and
 
procedures
 
designed
 
to
 
promote
 
and
 
achieve
compliance with such laws.
19.25
 
Security and Financial Indebtedness
(a)
 
No
 
Security
 
Interest
 
exists
 
over
 
all
 
or
 
any
 
of
 
the
 
present
 
or
 
future
 
assets
 
of
 
any
 
Obligor
 
in
breach of this Agreement.
 
(b)
 
No Obligor has any Financial Indebtedness outstanding in
 
breach of this Agreement.
19.26
 
Ownership of Obligors
(a)
 
Each Borrower is a wholly owned direct Subsidiary of
 
the Guarantor.
(b)
 
No less than (i) 12.5 per cent of the issued and outstanding common stock of the Guarantor is
legally and beneficially,
 
either directly or indirectly, owned by the Disclosed Persons and (ii) 25
per cent of the votes in respect of any
 
matter submitted to a vote of the common
 
stockholders
of the Guarantor is controlled by the Disclosed Persons.
19.27
 
No Change of Control
There has not been a Change of Control.
19.28
 
Accounting Reference Date
The Financial Year-end
 
of each Obligor and each Group Member is the Accounting Reference Date.
 
19.29
 
No adverse consequences
(a)
 
It is not necessary under the laws of the Relevant Jurisdictions
 
of any Obligor:
(i)
 
in order to enable
 
any Finance Party to
 
enforce its rights
 
under any Finance Document
to which it is, or is to be, a party; or
(ii)
 
by reason of the execution of any
 
Finance Document or the performance by any Obligor
of its obligations under any Finance Document,
that any Finance Party should be licensed,
 
qualified or otherwise entitled to carry on business
in any of such Relevant Jurisdictions.
 
(b)
 
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any
Relevant
 
Jurisdiction
 
of
 
any
 
Obligor
 
by
 
reason
 
only
 
of
 
the
 
execution,
 
performance
 
and/or
enforcement of any Finance Document.
 
19.30
 
Copies of documents
The copies of
 
those Transaction Documents which
 
are not
 
Finance Documents and
 
the Constitutional
Documents of
 
the Obligors
 
delivered to
 
the Agent
 
under clause
(Conditions of
 
Utilisation)
will be
true, complete and
 
accurate copies of
 
such documents and
 
include all amendments and
 
supplements
to them as at the time of such delivery and no other agreements
 
or arrangements exist between any
of
 
the
 
parties
 
to
 
those
 
Transaction
 
Documents
 
which
 
would
 
materially
 
affect
 
the
 
transactions
 
or
arrangements contemplated by them or modify or release the
 
obligations of any party under them.
19.31
 
No breach of any Charter Document
 
No
 
Obligor
 
nor
 
(so
 
far
 
as
 
the
 
Obligors
 
are
 
aware)
 
any
 
other
 
person
 
is
 
in
 
breach
 
of
 
any
 
Charter
Document to which
 
it is a
 
party nor has
 
anything occurred
 
which entitles
 
or may entitle
 
any party to
rescind or terminate it or decline to perform its obligations
 
under it.
19.32
 
No immunity
No Obligor or any of its assets is immune to any legal
 
action or proceeding.
 
19.33
 
Ship status
Each Ship will on the first day of the relevant Mortgage
 
Period be:
(a)
 
permanently registered
 
in the name
 
of the relevant
 
Owner through the
 
relevant Registry
 
as a
ship under the laws and flag of the relevant Flag State;
(b)
 
operationally seaworthy and in every way fit for service;
(c)
 
classed with the relevant Classification free
 
of all requirements and overdue
 
recommendations
of the relevant Classification Society; and
(d)
 
insured in the manner required by the Finance Documents.
 
19.34
 
Ship's employment
(a)
 
Each
 
Ship
 
shall
 
on
 
the
 
first
 
day
 
of
 
the
 
relevant
 
Mortgage
 
Period
 
be
 
free
 
of
 
any
 
charter
commitment which,
 
if entered
 
into after
 
that date,
 
would require
 
approval under
 
the Finance
Documents.
(b)
 
There are
 
no rebates,
 
commissions or
 
other payments
 
in connection
 
with any
 
Charter other
than those referred to in it.
19.35
 
Sanctions
No Relevant Person is:
(a)
 
a Restricted Party;
(b)
 
in breach of Sanctions; or
(c)
 
to
 
its
 
knowledge
 
subject
 
to
 
or
 
involved
 
in
 
any
 
complaint,
 
claim,
 
proceeding,
 
formal
 
notice,
investigation
 
or
 
other
 
action
 
by
 
any
 
regulatory
 
or
 
enforcement
 
authority
 
or
 
third
 
party
concerning any Sanctions.
19.36
 
Shares
The shares of each Obligor
 
are fully paid and not
 
subject to any option
 
to purchase or similar
 
rights.
The Constitutional Documents
 
of each Obligor do
 
not and could
 
not restrict or
 
inhibit any transfer of
those shares
 
on
 
creation
 
or
 
enforcement
 
of
 
the
 
Security
 
Documents.
 
There
 
are
 
no agreements
 
in
force which provide for the
 
issue or allotment of, or
 
grant any person the
 
right to call for the
 
issue or
allotment of, any share or loan capital of each Obligor (including any option or right of pre-emption or
conversion).
19.37
 
No Money Laundering
In
 
relation
 
to
 
the
 
borrowing
 
by
 
the
 
Borrowers
 
of
 
the
 
Loan,
 
the
 
performance
 
and
 
discharge
 
of
 
the
Obligors’
 
obligations
 
and
 
liabilities
 
under
 
the
 
Finance
 
Documents
 
and
 
the
 
transactions
 
and
 
other
arrangements effected or contemplated
 
by this Agreement and the Finance
 
Documents, each of the
Obligors is acting
 
for its own account
 
and the foregoing
 
will not involve or
 
lead to a contravention
 
of
any law, official requirement
 
or other regulatory measure or procedure which has
 
been implemented
by any relevant regulatory authority or otherwise to combat
 
money laundering.
19.38
 
Use of proceeds
The proceeds of the Utilisation
 
have been or (as the
 
case may be) on the
 
Utilisation Date will be used
exclusively for the purposes specified in clause
 
(
Purpose
).
19.39
 
Maintenance of properties
 
Each Obligor has maintained in good working order and condition (ordinary wear
 
and tear excepted)
all of its assets necessary or desirable in the conduct of
 
its business.
19.40
 
Anti-bribery, anti-corruption
 
and anti-money laundering
No Obligor
 
nor
 
any
 
of
 
their
 
Subsidiaries
 
nor
 
any
 
of
 
their
 
respective
 
directors,
 
officers,
 
employees,
affiliates, agents
 
or representatives
 
has engaged
 
in any
 
activity or
 
conduct which
 
would violate
 
any
applicable anti-bribery, anti-corruption or anti-money laundering laws or regulations in any applicable
jurisdiction and
 
each such
 
person has
 
instituted and
 
maintains policies
 
and procedures
 
designated
to prevent violation of such laws, regulations and rul
 
es.
19.41
 
Times when representations are made
(a)
 
All
 
of
 
the
 
representations
 
and
 
warranties
 
set
 
out
 
in
 
this
 
clause
 
(other
 
than
 
Ship
Representations) are deemed to be made on the dates
 
of:
(i)
 
this Agreement;
(ii)
 
the Utilisation Request; and
(iii)
 
the Utilisation.
(b)
 
The
 
Repeating
 
Representations
 
are
 
deemed
 
to
 
be
 
made
 
on
the
 
first
 
day
 
of
 
each
 
Interest
Period.
 
(c)
 
All of the Ship Representations in relation to a Ship are deemed to be made on the
 
first day of
the Mortgage Period for the relevant Ship.
 
(d)
 
Each representation or warranty deemed to be made after the date of this Agreement shall be
deemed
 
to
 
be
 
made
 
by
 
reference
 
to
 
the
 
facts
 
and
 
circumstances
 
existing
 
at
 
the
 
date
 
the
representation or warranty is deemed to be made.
 
20
 
Information undertakings
20.1
 
Undertaking to comply
Each Obligor undertakes that this clause
 
will be complied with throughout the Facility Period.
 
20.2
 
Definitions
In this clause
Annual
 
Financial
 
Statements
 
means
 
each
 
of
 
the
 
audited
 
consolidated
 
financial
 
statements
 
for
 
a
Financial
 
Year
 
of
 
the
 
Guarantor
 
delivered
 
pursuant
 
to
 
paragraph
 
(a)
 
of
 
clause
(Financial
statements)
.
 
Semi-Annual Financial Statements
 
means each of the
 
unaudited consolidated financial statements
for a financial half-year
 
of the Guarantor delivered
 
pursuant to paragraph (b) of
 
clause
(Financial
statements)
.
 
20.3
 
Financial statements
(a)
 
The Borrowers
 
shall supply
 
to the
 
Agent as
 
soon as
 
the same
 
become available,
 
but in
 
any
event within 180 days
 
after the end of
 
each Financial Year,
 
the audited consolidated financial
statements of the Guarantor for that Financial Year.
(b)
 
The Borrowers
 
shall supply
 
to the
 
Agent as
 
soon as
 
the same
 
become available,
 
but in
 
any
event within
 
90 days
 
after
 
the end
 
of the
 
first
 
financial
 
half-year of
 
each Financial
 
Year,
 
the
unaudited consolidated financial statement
 
s
 
of the Guarantor for that
 
financial half-year in the
form in which they were published in the relevant press
 
release.
20.4
 
Provision and contents of Compliance Certificate
(a)
 
The
 
Obligors
 
shall
 
supply
 
a
 
Compliance
 
Certificate
 
to
 
the
 
Agent,
 
with
 
each
 
set
 
of
 
Annual
Financial Statements and each set of Semi-Annual Financial
 
Statements.
 
(b)
 
Each
 
Compliance
 
Certificate
 
delivered
 
to
 
the
 
Agent
 
with
 
each
 
set
 
of
 
Annual
 
Financial
Statements
 
shall
 
include
 
the
 
Guarantor’s
 
assessment
 
of
 
the
 
aggregate
 
market
 
value
 
of
 
the
Fleet
 
Vessels
 
at
 
the
 
date
 
of
 
the
 
relevant
 
Compliance
 
Certificate
 
on
 
the
 
basis
 
described
 
in
clause
.7 (
Basis of valuation
).
 
(c)
 
Each Compliance Certificate
 
shall be signed
 
by the chief
 
financial officer
 
of the Guarantor
 
or,
in his or her absence, by two directors of the Guarantor.
20.5
 
Requirements as to financial statements
(a)
 
The Obligors
 
shall procure
 
that each
 
set of
 
financial statements
 
delivered pursuant
 
to clause
 
(
Financial statements
) includes a profit and loss account, a balance sheet and, in respect
of the annual financial statements only,
 
a cashflow statement and that, in addition,
 
each set of
Annual Financial Statements shall be audited by the Auditors.
(b)
 
Each set of
 
financial statements delivered pursuant
 
to clause
(Financial statements)
shall:
(i)
 
be prepared in accordance with GAAP;
(ii)
 
give a true and fair view of
 
(in the case of Annual Financial Statements for any
 
Financial
Year),
 
or fairly
 
present (in
 
other cases)
 
its financial
 
condition and
 
operations as
 
at the
date as at which those financial statements were drawn
 
up; and
(iii)
 
in the case of Annual Financial Statements, not be the subject of any qualification in the
Auditors' opinion.
 
(c)
 
The Obligors
 
shall procure
 
that each
 
set of
 
financial statements
 
delivered pursuant
 
to clause
 
(Financial statements)
 
shall be prepared using GAAP,
 
accounting practices and financial
reference
 
periods
 
consistent
 
with
 
those
 
applied
 
in
 
the
 
preparation
 
of
 
the
 
Original
 
Financial
Statements.
 
20.6
 
Year-end
The Obligors
 
shall procure
 
that each
 
Financial Year
 
-end of
 
each Obligor
 
and each
 
Group Member
falls on the Accounting Reference Date.
 
20.7
 
Information: miscellaneous
The Obligors
shall supply to the Agent:
(a)
 
at the same time as they are dispatched, copies of all
 
documents dispatched by the Guarantor
or any Obligors to its creditors generally (or any class
 
of them);
(b)
 
promptly upon
 
becoming aware
 
of them,
 
the details
 
of any
 
litigation, arbitration or
 
administrative
proceedings which are current, threatened or pending against any Group Member, and which,
if adversely determined, might have a Material Adverse Effect;
(c)
 
promptly upon becoming aware of
 
them, the details of
 
any judgment or order
 
of a court, arbitral
tribunal or other tribunal or any order or sanction of
 
any governmental or other regulatory body
which is
 
made against
 
any Group
 
Member and
 
which is
 
reasonably likely
 
to have
 
a Material
Adverse Effect;
 
(d)
 
promptly,
 
such information as
 
the Agent or the
 
Security Agent or
 
any Lender may
 
reasonably
require about
 
(i) the
 
Charged Property
 
and compliance
 
of the
 
Obligors with
 
the terms
 
of any
Security Documents and/or (ii) the contents
 
of any Compliance Certificate, including the
 
basis
or manner
 
of calculation
 
of any
 
values contained
 
therein, including
 
the market
 
values of
 
the
Fleet Vessels;
(e)
 
promptly
 
on
 
request,
 
such
 
further
 
information
 
regarding
 
the
 
financial
 
condition,
 
assets
 
and
operations of the Group and/or any Group Member as any Finance Party through the Agent or
any Lender
 
may reasonably
 
request (including,
 
but not
 
limited to,
 
a consolidated
 
budget and
cashflow
 
forecast
 
for
 
the
 
Group,
 
fleet
 
employment
 
lists,
 
information
 
about
 
the
 
Group’s
newbuilding
 
program
 
and
 
related
 
obligations,
 
financing
 
offers
 
and
 
agreements
 
in
 
respect
 
of
such newbuildings etc.);
(f)
 
if requested by
 
the Agent, by
 
not later than
 
31 December of
 
each calendar year, a sustainability
report in respect of the Group for
 
the prior calendar year substantially
 
in the form of the report
published
 
by
 
the
 
Guarantor
 
in
 
respect
 
of
 
the
 
year
 
2022
 
and
 
otherwise
 
in
 
all
 
respects
satisfactory to the Majority Lenders.
20.8
 
Notification of Default
(a)
 
The Obligors shall notify the Agent of any
 
Default (and the steps, if any, being taken to remedy
it) promptly upon any
 
Obligor 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
 
Agent,
 
the
 
Obligors
 
shall
 
supply
 
to
 
the
 
Agent
 
a
 
certificate
signed by two of the directors or senior officers of the Guarantor 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).
 
20.9
 
Sufficient copies
The Obligors,
 
if
 
so requested
 
by the
 
Agent, shall
 
deliver
 
sufficient
 
copies
 
of each
 
document
 
to
 
be
supplied
 
under
 
the
 
Finance
 
Documents
 
to
 
the
 
Agent
 
to
 
distribute
 
to
 
each
 
of
 
the
 
Lenders
 
and
 
the
Hedging Provider.
 
20.10
 
Use of websites
(a)
 
The Borrowers may
 
satisfy their obligation
 
under this Agreement
 
to deliver any
 
information in
relation to
 
those Lenders
 
(the
Website Lenders
) who
 
accept this
 
method of
 
communication
by posting
 
this
 
information
 
onto
 
an
 
electronic
 
website
 
designated
 
by the
 
Borrowers
 
and
 
the
Agent (the
Designated Website
) if:
(i)
 
the Agent
 
expressly agrees
 
(after consultation
 
with each
 
of the
 
Lenders) that
 
it will
 
accept
communication of the information by this method;
(ii)
 
both
 
the
 
Borrowers
 
and
 
the
 
Agent
 
are
 
aware
 
of
 
the
 
address
 
of
 
and
 
any
 
relevant
password specifications for the Designated Website;
 
and
(iii)
 
the information is in a format previously agreed between the
 
Borrowers and the Agent.
 
(b)
 
If
 
any
 
Lender
 
(a
Paper
 
Form
 
Lender
)
 
does
 
not
 
agree
 
to
 
the
 
delivery
 
of
 
information
electronically
 
then
 
the
 
Agent
 
shall
 
notify
 
the
 
Borrowers
 
accordingly
 
and
 
the
 
Borrowers
 
shall
supply the information to the Agent (in sufficient
 
copies for each Paper Form Lender) in
 
paper
form.
 
In any event
 
the Borrowers shall
 
supply the Agent
 
with at least one
 
copy in paper
 
form
of any information required to be provided by it.
 
(c)
 
The Agent shall
 
supply each
 
Website Lender
 
with the
 
address of
 
and any
 
relevant password
specifications
 
for
 
the
 
Designated
 
Website
 
following
 
designation
 
of
 
that
 
website
 
by
 
the
Borrowers and the Agent.
 
(d)
 
The Borrowers
 
shall promptly
 
upon any
 
of them
 
becoming aware
 
of its
 
occurrence notify
 
the
Agent if:
(i)
 
the Designated Website cannot be accessed due
 
to technical failure;
(ii)
 
the password specifications for the Designated Website
 
change;
(iii)
 
any new
 
information which
 
is required
 
to be
 
provided
 
under this
 
Agreement
 
is posted
onto the Designated Website;
(iv)
 
any existing information
 
which has been
 
provided under this
 
Agreement and posted
 
onto
the Designated Website is amended; or
(v)
 
any Borrower
 
becomes aware
 
that the
 
Designated Website
 
or any
 
information posted
onto the
 
Designated Website
 
is or
 
has been
 
infected by
 
any electronic
 
virus or
 
similar
software.
 
(e)
 
If
 
the
 
Borrowers
 
notify
 
the
 
Agent
 
under
 
paragraphs
 
to
 
above,
 
all
 
information
 
to
 
be
provided by the Borrowers under this Agreement after the date of that notice shall be supplied
in
 
paper
 
form
 
unless
 
and
 
until
 
the
 
Agent
 
and
 
each
 
Website
 
Lender
 
is
 
satisfied
 
that
 
the
circumstances giving rise to the notification
 
are no longer continuing.
 
(f)
 
Any
 
Website
 
Lender
 
may
 
request,
 
through
 
the
 
Agent,
 
one
 
paper
 
copy
 
of
 
any
 
information
required to
 
be provided
 
under this
 
Agreement which
 
is posted
 
onto the
 
Designated Website.
 
The Borrowers shall comply with any such request within
 
ten Business Days.
20.11
 
“Know your customer” checks
(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 an
 
Obligor (or
 
of a
 
Holding Company
 
of an
 
Obligor) or
 
the
composition of the shareholders
 
of an Obligor (or
 
of a Holding Company
 
of an Obligor)
after the date of this Agreement; or
(iii)
 
a proposed
 
assignment by
 
a Lender
 
or the
 
Hedging Provider
 
of any
 
of its
 
rights under
this Agreement
 
or any
 
Hedging Contract
 
to a
 
party that
 
is not
 
already a
 
Lender or
 
the
Hedging Provider
 
prior to
 
such assignment
 
provided the
 
Borrowers’ consent
 
has been
obtained where required pursuant to clause
 
(
Assignment by the Lenders
),
obliges the Agent, the
 
Hedging Provider or any Lender
 
(or, in the case of paragraph
 
above,
any
 
prospective
 
new
 
Lender
 
or
 
Hedging
 
Provider)
 
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 Agent or any
 
Lender
or
 
the
 
Hedging
 
Provider
 
supply,
 
or
 
procure
 
the
 
supply
 
of,
 
such
 
documentation
 
and
 
other
evidence as
 
is requested
 
by the
 
Agent (for
 
itself or
 
on behalf
 
of any
 
Lender
 
or the
 
Hedging
Provider (for itself
 
or,
 
in the case
 
of the event
 
described in paragraph
 
above, on behalf
 
of
any prospective
 
new Lender
 
or Hedging
 
Provider in
 
order for
 
the Agent,
 
such Lender
 
or the
Hedging
 
Provider
 
or,
 
in
 
the
 
case
 
of
 
the
 
event
 
described
 
in
 
paragraph
 
above,
 
any
prospective new Lender or Hedging Provider to carry
 
out and be satisfied it has complied with
all
 
necessary
 
“know
 
your
 
customer”
 
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
regulations pursuant to the transactions contemplated
 
in the Finance Documents.
 
(b)
 
Each Finance
 
Party shall, promptly
 
upon the
 
request of the
 
Agent or
 
the Security Agent,
 
supply,
or procure the supply of, such
 
documentation and other evidence as is requested by
 
the Agent
or the Security Agent (for itself) in
 
order for it to carry out and be
 
satisfied it has complied with
all
 
necessary
 
“know
 
your
 
customer”
 
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
regulations pursuant to
 
the transactions contemplated
 
in the Finance
 
Documents, including
 
a
statement
 
from
 
the
 
Borrowers,
 
the
 
Guarantor
 
and/or
 
any
 
other
 
Obligor
 
confirming
 
that
 
the
documents,
 
data
 
or information
 
previously
 
provided
 
to
 
the
 
Agent and/or
 
the
 
Lenders
 
for the
purposes
 
of
 
their
 
“know
 
your
 
customer”
 
checks
 
is
 
up
 
to
 
date,
 
alternatively,
 
such
 
updated
documents, data or information as requested by the Finance
 
Parties.
20.12
 
Money Laundering
 
The Borrowers will:
(a)
 
provide the Agent (and the Agent shall provide
 
each Lender) with information, certificates and
any documents
 
required by
 
the Agent
 
or any
 
other Finance
 
Party to
 
ensure compliance
 
with
any law official requirement or other regulatory
 
measure or procedure implemented to combat
Money Laundering (as defined in
 
clause
 
(
Bribery and corruption
)) throughout the Facility
Period; and
 
(b)
 
notify the Agent (and the Agent
 
shall notify each Lender)
 
as soon as it becomes aware of
 
any
matters evidencing
 
that a
 
breach of
 
any law
 
official requirement
 
or other
 
regulatory measure
or procedure implemented
 
to combat Money
 
Laundering (as defined
 
in clause
 
(
Bribery
and
 
corruption
)
 
may
 
or
 
is
 
about
 
to
 
occur
 
or
 
that
 
the
 
person(s)
 
who
 
have
 
or
 
will
 
receive
 
the
commercial benefit of this Agreement have changed from
 
the date hereof.
20.13
 
Minimum liquidity
The Borrowers undertake that each Owner of a Mortgaged Ship will maintain in its Earnings Account
at all
 
times throughout
 
the Mortgage
 
Period for
 
that Ship,
 
minimum cash
 
balances
 
of no
 
less than
$200,000 (namely,
 
$200,000 per Mortgaged Ship).
21
 
Financial covenants
21.1
 
Undertaking to comply
Each
 
Obligor
 
who
 
is
 
a
 
Party
 
undertakes
 
that
 
this
 
clause
 
will
 
be
 
complied
 
with
 
throughout
 
the
Facility Period.
 
21.2
 
Financial definitions
In this clause
Annual Financial Statements
 
means the Annual Financial
 
Statements of the Guarantor, referred to,
and defined as such in Clause
 
(
Information Undertakings
).
Cash
means cash in hand which
 
is not subject to any
 
charge back or Security Interest
 
and to which
the Borrowers or the Guarantor (as the context requires)
 
have free, immediate and direct access.
Current
 
Assets
 
means,
 
in
 
respect
 
of
 
each
 
Measurement
 
Period,
 
the
 
aggregate
 
of
 
the
 
cash
 
and
marketable
 
securities,
 
trade
 
and
 
other
 
receivables
 
of
 
the
 
Group
 
from
 
persons
 
other
 
than
 
a
 
Group
Member
 
realisable
 
within
 
one
 
year,
 
inventories
 
and
 
prepaid
 
expenses
 
which
 
are
 
to be
 
charged
 
to
income within one year
 
less any doubtful debts
 
and any discounts
 
or allowances given,
 
as stated in
the then most recent Financial Statements for such Measurement
 
Period.
Financial Statements
means any of the Annual
 
Financial Statements or the
 
Semi-Annual Financial
Statements.
Fleet Market Value
 
means, as of the date of calculation, the aggregate
 
value of:
(a)
 
the Mortgaged Ships as most recently determined pursuant to valuations made in accordance
with the provisions of clause
 
(
Minimum security value
); and
(b)
 
all other Fleet Vessels
 
(other than the Mortgaged
 
Ships), as most
 
recently stated in the
 
latest
Compliance Certificate pursuant to clause
 
(but if such market values are an aggregate
amount of all Fleet
 
Vessels, after deducting from the same the
 
market values of the
 
Mortgaged
Ships under paragraph (a) above) .
 
Fleet
 
Vessel
 
means
 
each
 
Mortgaged
 
Ship
 
and
 
any
 
other
 
Fleet
 
Vessel
 
as
 
defined
 
in
 
clause
(
Definitions
) (excluding vessels under construction) but only to
 
the extent owned by Group Members,
and
Fleet Vessels
 
means any or all of them.
Market Value
 
Adjusted Net
 
Worth
 
means, in respect
 
of a Measurement
 
Period, the
 
Market Value
Adjusted Total
 
Assets less Total
 
Debt for such Measurement Period.
Market Value Adjusted Total
 
Assets
 
means, in respect of a Measurement Period, the Total
 
Assets
adjusted to reflect the difference between the book
 
values of all Fleet Vessels stated in the then
 
most
recent Financial Statements and the aggregate Fleet Market
 
Value of all Fleet
 
Vessels.
Measurement
 
Period
means
 
(a)
 
each
 
financial
 
year
 
and
 
(b)
 
the
 
first
 
financial
 
half-year
 
of
 
each
financial year of the Guarantor.
Semi-Annual Financial Statements
 
means the Semi-Annual Financial Statements of
 
the Guarantor
referred to and defined as such in Clause
Tangible
 
Fixed Assets
means,
 
in
 
respect
 
of a
 
Measurement
 
Period,
 
the value
 
(less
 
depreciation
computed in
 
accordance with
 
GAAP) on
 
a consolidated
 
basis of
 
all the
 
assets of
 
the Group
 
which
would, in
 
accordance with GAAP, be classified
 
as tangible
 
fixed assets, namely
 
items held
 
for ongoing
use to the business of
 
the Group including, without limitation, any land,
 
plant, machinery and vessels,
as such
 
value is stated
 
in the
 
then most
 
recent Financial
 
Statements for
 
such Measurement
 
Period
Provided that, for
 
the purposes
 
of determining compliance
 
with the covenants
 
set forth in
 
clause
(
Financial covenants
), the
 
value of such
 
tangible fixed
 
assets attributable
 
to the
 
Fleet Vessels
 
shall
be equal to the aggregate Fleet Market
 
Value of all
 
Fleet Vessels
 
rather than the book value of such
Fleet Vessels as stated in the
 
then most recent Financial Statements for such Measurement
 
Period.
 
Total
 
Assets
means,
 
in
 
respect
 
of
 
a
 
Measurement
 
Period,
 
the
 
aggregate
 
of
 
Current
 
Assets
 
and
Tangible
 
Fixed Assets for such Measurement Period.
Total
 
Debt
 
means,
 
in
 
respect
 
of
 
a
 
Measurement
 
Period,
 
in
 
relation
 
to
 
any
 
Group
 
Member
 
(the
debtor
):
(a)
 
any Financial Indebtedness of the debtor;
(b)
 
liability of any credit to the debtor from a supplier of goods or services or under any instalment
purchase or payment plan or other similar arrangement;
(c)
 
contingent
 
liabilities
 
of
 
the
 
debtor
 
(including
 
without
 
limitation
 
any
 
taxes
 
or
 
other
 
payments
under
 
dispute)
 
which
 
have
 
been
 
or,
 
under
 
GAAP,
 
should
 
be
 
recorded
 
in
 
the
 
notes
 
to
 
the
Financial Statements;
(d)
 
any deferred tax of the debtor; and
(e)
 
liability under a guarantee, indemnity or similar obligation entered into by the debtor in respect
of a
 
liability of
 
another
 
person who
 
is not
 
a Group
 
Member which
 
would fall
 
within (a)
 
to (d)
above if the references to the debtor referred to the other
 
person,
as stated in the most recent Financial Statements or such
 
Measurement Period.
21.3
 
Financial condition
Each Obligor which is a Party shall ensure that throughout
 
the Facility Period:
(a)
Cash
:
 
on
 
each
 
day
 
during
 
the
 
Facility
 
Period
 
the
 
Group’s
 
Cash
 
shall
 
be
 
not
 
lower
 
than
 
the
higher of:
 
(i)
 
$500,000 multiplied by the number of the Fleet Vessels;
 
and
 
(ii)
 
$10,000,000.
(b)
Market Value
 
Adjusted Net
 
Worth
: the
 
Market Value
 
Adjusted Net
 
Worth shall
 
,
 
at all
 
times
during each Measurement Period, be greater than or equal to
 
$150,000,000.
(c)
Equity
: the ratio of Market
 
Value Adjusted
 
Net Worth to Total
 
Assets shall, at all
 
times during
each Measurement Period, be greater than 25%.
21.4
 
Financial testing
The financial covenants set out in clause
(Financial condition)
 
shall be calculated in accordance
with
 
GAAP
 
on
 
a
 
consolidated
 
basis
 
and
 
tested
 
by
 
reference
 
to
 
each
 
of
 
the
 
Financial
 
Statements
and/or
 
each
 
Compliance
 
Certificate
 
delivered
 
pursuant
 
to
 
clause
(Provision
 
and
 
contents
 
of
Compliance Certificate)
.
22
 
General undertakings
22.1
 
Undertaking to comply
Each Obligor who is a Party undertakes that this clause
 
will be complied with by and in respect of
each Obligor throughout the Facility Period.
 
22.2
 
Use of proceeds
The
 
proceeds
 
of
 
the
 
Utilisation
 
shall
 
be
 
used
 
exclusively
 
for
 
the
 
purposes
 
specified
 
in
 
clause
(Purpose)
.
 
22.3
 
Authorisations
Each Obligor shall promptly:
(a)
 
obtain, comply with and do all that is necessary to maintain
 
in full force and effect; and
(b)
 
supply certified copies to the Agent of,
any Authorisation required under any law or regulation of a
 
Relevant Jurisdiction to:
(i)
 
enable it to perform its obligations under the Transaction
 
Documents;
(ii)
 
ensure the legality,
 
validity,
 
enforceability or admissibility
 
in evidence of
 
any Transaction
Document; and
(iii)
 
carry on its business where failure to do so has, or is reasonably likely to have, a Material
Adverse Effect.
 
22.4
 
Compliance with laws
Each Obligor shall
 
comply in all
 
respects with all
 
laws and regulations
 
(including Environmental Laws)
to which it may be subject if failure to comply has, or is reasonably likely to
 
have, a Material Adverse
Effect.
 
22.5
 
Tax compliance
(a)
 
Each Obligor shall (and shall ensure
 
that each other Group Member 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
 
being maintained for
 
those Taxes and the costs required
 
to contest
them which
 
have been
 
disclosed in
 
its latest
 
financial statements
 
delivered to
 
the Agent
under clause
 
(
Financial statements
); and
(iii)
 
such payment can be lawfully withheld.
 
(b)
 
Except
 
as
 
approved
 
by
 
the
 
Majority
 
Lenders,
 
no
 
Obligor
 
shall
 
change
 
its
 
residence
 
for
 
Tax
purposes.
(c)
 
Except as approved
 
by the Majority
 
Lenders, no Obligor shall
 
change its centre of
 
main interest
(as that term
 
is used in
 
Article 3(1) of
 
the Regulation)
 
from that
 
applicable on
 
the date of
 
this
Agreement or have an “establishment” (as
 
that term is used in Article 2(10) of
 
the Regulation)
in any
 
jurisdiction other
 
than where
 
the centre
 
of main
 
interest is
 
located on
 
the date
 
of this
Agreement.
22.6
 
Change of business or Constitutional Documents
 
or domicile
(a)
 
Except as approved by the Majority Lenders, no material
 
change will be made to the corporate
structure or the general nature of the business of the Guarantor
or any of the other Obligors or
the Group taken as a whole from that carried on at the
 
date of this Agreement.
 
(b)
 
Except
 
as
 
approved
 
by
 
the
 
Majority
 
Lenders,
 
no
 
change
 
will
 
be
 
made
 
to
 
the
 
Constitutional
Documents of
 
any Obligor
 
which will
 
affect such Obligor’s
 
ability to
 
perform its obligations
 
under
the
 
Finance
 
Documents
 
or
 
will
 
affect
 
the
 
validity
 
or
 
enforceability
 
of
 
or
 
the
 
effectiveness
 
or
ranking of
 
any Transaction
 
Security granted
 
by such
 
Obligor pursuant
 
to any
 
of the
 
Finance
Documents or
 
the rights
 
or remedies
 
or any
 
Finance Party
 
under any
 
Finance Documents
 
to
which such Obligor is a party.
 
(c)
 
No change will be made to the domicile of any Obligor.
22.7
 
Merger
Except as approved by
 
the Majority Lenders, no
 
Obligor shall (and shall
 
ensure that no other
 
Group
Member
 
will)
 
enter
 
into
 
any
 
amalgamation,
 
demerger,
 
merger,
 
consolidation,
 
redomiciliation,
 
legal
migration or corporate reconstruction (other than the solvent
 
liquidation of any Group Member which
is
 
not
 
an
 
Obligor
 
so
 
long
 
as
 
any
 
payments
 
or
 
assets
 
distributed
 
as
 
a
 
result
 
of
 
such
 
liquidation
 
or
reorganisation
 
are
 
distributed
 
to
 
other
 
Group
 
Members)
 
unless,
 
in
 
respect
 
of
 
the
 
Guarantor,
 
after
such amalgamation,
 
demerger,
 
merger,
 
consolidation or
 
corporate reconstruction
 
(a) the Guarantor
remains the surviving
 
entity,
 
(b) the financial
 
covenants set
 
out in Clause
 
21.3 (
Financial Condition
)
are complied with (including
 
if tested on a
 
proforma basis) and (c)
 
no Event of Default
 
has occurred
which is continuing at the relevant time.
22.8
 
Pension exposure
The Borrowers shall ensure
 
that no Group Member
 
is, or any time
 
becomes, liable to contribute
 
funds
to any form of pension scheme or similar arrangement (other than
 
as required by law and other than
a scheme or arrangement where the benefits conferred by it on its members are calculated solely by
reference to a payment or payments made by the relevant member or
 
by any other person in respect
of that member).
 
22.9
 
Further assurance
(a)
 
Each
 
Obligor
 
shall
 
promptly
 
do
 
all
 
such
 
acts
 
or
 
execute
 
all
 
such
 
documents
 
(including
assignments,
 
transfers,
 
mortgages,
 
charges,
 
notices
 
and
 
instructions)
 
as
 
the
 
Agent
 
may
reasonably
 
specify
 
(and
 
in
 
such
 
form
 
as
 
the
 
Agent
 
or
 
the
 
Security
 
Agent
 
may
 
reasonably
require in favour of the Security Agent or its nominee(s)):
(i)
 
to perfect the
 
Security Interests
 
created or intended
 
to be created
 
by that Obligor
 
under,
or evidenced by, the
 
Security 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 Security
 
Documents) or
 
for the
 
exercise of
 
any rights,
powers and remedies of the Security Agent and/or any other Finance Parties provided by
or pursuant to the Finance Documents or by law;
(ii)
 
to confer on
 
the Security Agent
 
and/or any other
 
Finance Parties
 
Security Interests
 
over
any property and assets
 
of that Obligor located
 
in any jurisdiction equivalent
 
or similar to
the Security Interest intended to be conferred by or pursuant
 
to the Security Documents;
(iii)
 
to facilitate the realisation of
 
the assets which are, or
 
are intended to be, the
 
subject of the
Security Documents; and/or
(iv)
 
to
 
facilitate
 
the
 
accession
 
by
 
a
 
New
 
Lender
 
to
 
any
 
Security
 
Document
 
following
 
an
assignment in accordance with clause
(
A
ssignments
by the Lenders)
.
 
(b)
 
Each
 
Obligor
 
shall
 
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
 
Interest
 
conferred
 
or
 
intended
 
to
 
be
 
conferred
 
on
 
the
 
Security
Agent and/or any other Finance Parties by or pursuant
 
to the Finance Documents.
 
22.10
 
Negative pledge in respect of Charged Property and
 
Obligor shares
(a)
 
Except as approved by
 
the Majority Lenders and
 
for Permitted Maritime Liens,
 
no Obligor will
grant
 
or
 
allow
 
to
 
exist
 
any
 
Security
 
Interest
 
(except
 
for
 
the
 
Transaction
 
Security)
 
over
 
any
Charged Property or the shares
 
in any of the Borrowers
 
or any rights deriving from, or
 
related
to, such shares.
(b)
 
Each Obligor will
 
procure that all
 
of the shares
 
of all of
 
the Obligors will
 
be in registered
 
form
(and not in bearer form)
 
at all times.
 
22.11
 
Environmental matters
(a)
 
The Agent will be
 
notified as soon as reasonably
 
practicable of any Environmental Claim being
made against any Group Member or any Fleet Vessel which, if successful to any extent, might
have a Material Adverse Effect and of any Environmental Incident which may give rise to such
a claim and will
 
be kept regularly
 
and promptly informed
 
in reasonable detail
 
of the nature
 
of,
and response to, any such Environmental Incident and
 
the defence to any such claim.
 
(b)
 
Environmental Laws (and
 
any consents, licences
 
or approvals
 
obtained under them)
 
applicable
to Fleet Vessels will not be
 
violated in a way which might have a Material Adverse
 
Effect.
 
22.12
 
Syndication
The Guarantor
will provide
 
reasonable assistance
 
to the
 
Arranger in
 
the primary
 
syndication of
 
the
Facility and will
 
comply with all
 
reasonable requests for information
 
from potential syndicate members
prior to completion of syndication.
22.13
 
Sanctions
(a)
 
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other Relevant
 
Person will)
 
take any
action, make any omission or use (directly
 
or indirectly) any proceeds of the Loan,
 
in a manner
that:
(i)
 
is a breach of Sanctions; and/or
(ii)
 
causes (or will cause) a breach of Sanctions by any Finance
 
Party.
(b)
 
No Obligor
 
shall (and
 
the Obligors
 
shall ensure
 
that no
 
other Relevant
 
Person will)
 
take any
action or make
 
any omission
 
that results, or
 
is reasonably likely
 
to result, in
 
it or any
 
Finance
Party becoming a Restricted Party.
22.14
 
Pari Passu
Each Obligor will ensure that
 
(a) its obligations under the
 
Finance Documents shall, without prejudice
to the Security Interests intended
 
to be created by the Security
 
Documents, at all times rank
 
at least
pari passu with all its other present and future unsecured and unsubordinated Indebtedness
 
with the
exception of any obligations
 
which are mandatorily preferred
 
by law and not by
 
contract and (b) any
Financial Indebtedness of any Obligor to any
 
other Group Member or any of its
 
shareholders or other
Affiliates shall be in all respects subordinated in ranking and priority of payment to all amounts owing
to the Lender under the Finance Documents.
22.15
 
Borrowers’ own account
Each Obligor will ensure that any borrowing by it and/or the performance of its obligations hereunder
and under the other Finance
 
Documents to which it is
 
a party will be for its
 
own account and will not
involve any breach by it of any law, or regulatory measure relating to money laundering as defined in
the provisions
 
of the directive
 
(2005/60/EC) of
 
the European
 
Parliament and
 
of the
 
Council (as
 
this
may be
 
repealed or
 
replaced by
 
transposition
 
of directive
 
(EU) 2015/849)
 
or any
 
equivalent law
 
or
regulatory measure in any other jurisdiction.
22.16
 
Inspection
Each Obligor undertakes with
 
the Finance Parties that,
 
from the date of this
 
Agreement and so long
as any
 
moneys are
 
owing under
 
any of
 
the Finance
 
Documents, upon
 
the request
 
of the
 
Agent, it
shall
 
provide
 
the
 
Agent
 
or
 
any
 
of
 
its
 
representatives,
 
professional
 
advisors
 
and
 
contractors
 
with
access to, and permit inspection of, books and records
 
of any Obligor at reasonable times and
 
upon
reasonable notice.
22.17
 
Bribery and corruption
(a)
 
No Obligor shall engage in:
(i)
 
Corrupt
 
Practices,
 
Fraudulent
 
Practices,
 
Collusive
 
Practices
 
or
 
Coercive
 
Practices,
including the
 
procurement or
 
the execution
 
of any
 
contract for
 
goods or
 
works relating
to its functions in breach of any applicable law;
(ii)
 
Money Laundering or act in breach of any applicable law relating
 
to Money Laundering;
or
(iii)
 
the Financing of Terrorism.
(b)
 
Without prejudice to the
 
generality of paragraph (a)
 
above, no Obligor shall
 
directly or indirectly
use the proceeds
 
of any Facility
 
for any purpose
 
which would breach
 
the Bribery Act
 
2010 or
the United
 
States Foreign
 
Corrupt Practices
 
Act of
 
1977 or
 
any other
 
applicable anti
 
bribery
law.
(c)
 
For
 
the
 
purposes
 
of
 
this
 
clause
 
and
 
clause
 
(
Money
 
Laundering
),
 
the
 
following
definitions shall apply:
Collusive
 
Practice
 
means
 
an
 
arrangement
 
between
 
two
 
or
 
more
 
parties
 
without
 
the
knowledge, but designed to improperly influence the actions,
 
of another party.
Corrupt
 
Practice
 
means
 
the
 
offering,
 
giving,
 
receiving,
 
or
 
soliciting,
 
directly
 
or
 
indirectly,
anything of value to improperly influence the actions of
 
another party.
Coercive Practice
 
means
 
impairing or
 
harming or
 
threatening
 
to impair
 
or harm,
 
directly or
indirectly, any party or
 
its property or to improperly influence the actions of that
 
party.
Financing of Terrorism
 
means the act
 
of providing or
 
collecting funds with
 
the intention that
they be used, or in the knowledge that they are to be used,
 
in order to carry out terrorist acts.
Fraudulent Practice
means any
 
action, including
 
misrepresentation,
 
to obtain
 
a financial
 
or
other benefit or avoid an obligation, by deception.
Money Laundering
 
means:
(a)
 
the conversion or
 
transfer of property,
 
knowing it is
 
derived from a
 
criminal offence,
 
for
the purpose of
 
concealing or
 
disguising its
 
illegal origin or
 
of assisting any
 
person who
is involved
 
in the
 
commission of the
 
crime to evade
 
the legal
 
consequences of its
 
actions;
(b)
 
the concealment or disguise of the true nature, source, location, disposition, movement,
rights with respect to, or ownership of, property
 
knowing that it is derived from a criminal
offence; or
(c)
 
the acquisition, possession or use
 
of property knowing at the time
 
of its receipt that it is
derived from a criminal offence.
23
 
Dealings with Ship
23.1
 
Undertaking to comply
Each Obligor who
 
is a Party
 
undertakes that
 
this clause
 
will be complied
 
with in relation
 
to each
Mortgaged Ship throughout the relevant Ship’s Mortgage
 
Period.
 
23.2
 
Ship’s name and registration
(a)
 
The Ship’s name shall only be changed
 
after prior notice to the Agent and the relevant
 
Owner
shall promptly
 
take all
 
necessary
 
steps to
 
update all
 
applicable insurance,
 
classification
 
and
registration documents with such change of name.
 
(b)
 
The Ship shall be permanently
 
registered in the name
 
of the relevant Owner with
 
the relevant
Registry under
 
the laws
 
of its
 
Flag State.
 
Except with
 
approval of
 
the Majority
 
Lenders, the
Ship shall not be registered under any other flag or at
 
any other port or fly any other flag (other
than that of its Flag State). If that registration is for a limited period, it
 
shall be renewed at least
45 days
 
before the
 
date it
 
is due
 
to expire
 
and the
 
Agent shall
 
be notified
 
of that
 
renewal at
least 30 days before that date.
 
(c)
 
Nothing will be done and no action will be omitted if that might result in such registration being
forfeited
 
or imperilled
 
or the
 
Ship
 
being required
 
to be
 
registered
 
under
 
the
 
laws
 
of another
state of registry.
 
23.3
 
Sale or other disposal of Ship
Except
 
with
 
approval
 
the
 
relevant
 
Owner
 
will
 
not
 
sell,
 
or
 
agree
 
to,
 
transfer,
 
abandon
 
or
 
otherwise
dispose of the relevant Ship or any share or interest in the
 
Ship.
23.4
 
Manager
A manager
 
of the
 
Ship shall
 
not be
 
appointed unless
 
that manager
 
is approved
 
(other than
 
Diana
Shipping Services
 
S.A. of
 
Edificio Universal,
 
Piso 12,
 
Avenida
 
Federico
 
Boyd, Panama
 
and Diana
Wilhelmsen Management Limited
 
of 21
 
Vasili Michailidi street, 3026
 
Limassol, Cyprus who
 
are hereby
approved) and
 
the terms
 
of its
 
appointment are
 
approved and
 
such
 
manager has
 
delivered a
 
duly
executed
 
Manager’s Undertaking
 
to the
 
Security
 
Agent.
 
There
 
shall
 
be no
 
change
 
to
 
the
 
terms
 
of
appointment
 
of
 
a
 
manager
 
whose
 
appointment
 
has
 
been
 
approved
 
unless
 
such
 
change
 
is
 
also
approved.
 
23.5
 
Copy of Mortgage on board
A properly certified copy of the relevant Mortgage shall be kept on
 
board the Ship with its papers and
shown
 
to
 
anyone
 
having
 
business
 
with
 
the
 
Ship
 
which
 
might
 
create
 
or
 
imply
 
any
 
commitment
 
or
Security Interest over
 
or in respect of
 
the Ship (other
 
than a lien for
 
crew’s wages and
 
salvage) and
to any representative of the Agent or the Security Agent.
 
23.6
 
Notice of Mortgage
A framed printed notice of the Ship’s Mortgage shall be prominently displayed in the navigation room
and in the Master’s cabin of the Ship.
 
The notice must be in plain type and read as follows:
“NOTICE OF MORTGAGE
This Ship is subject to a first mortgage in favour of [
here insert name of mortgagee
] of [
here insert
address
 
of
 
mortgagee
].
 
Under the
 
said
 
mortgage
 
and
 
related
 
documents,
 
neither
 
the Owner
 
nor
any charterer nor
 
the Master
 
of this Ship
 
has any right,
 
power or authority
 
to create, incur
 
or permit
to be imposed
 
upon this Ship
 
any commitments
 
or encumbrances whatsoever
 
other than for
 
crew’s
wages and salvage”.
 
No-one will have any right, power or authority to create, incur or
 
permit to be imposed upon the Ship
any lien whatsoever other than for crew’s wages and
 
salvage.
 
23.7
 
Conveyance on default
Where the Ship
 
is (or
 
is to be)
 
sold in exercise
 
of any
 
power conferred
 
by the
 
Security Documents,
the relevant Owner shall, upon the Agent’s request, immediately execute such form
 
of transfer of title
to the Ship as the Agent may require.
 
23.8
 
Chartering
(a)
 
Except with approval,
 
the relevant Owner
 
shall not
 
enter into any
 
charter commitment
 
for the
Ship, which is:
(i)
 
a bareboat or demise charter or passes possession and operational control of the Ship to
another person;
(ii)
 
capable of lasting more than 12 calendar months;
(iii)
 
on terms as to
 
payment or amount of hire
 
which are materially less beneficial to
 
it than the
terms which at that time
 
could reasonably be expected to be
 
obtained on the open market
for vessels of the same age and type as the
 
Ship under charter commitments of a similar
type and period; or
(iv)
 
to another Group Member.
 
(b)
 
Further,
 
without
 
prejudice to
 
the rights
 
of the
 
Finance
 
Parties
 
under paragraph
 
(a)
 
above or
any other Finance Documents,
 
the relevant Owner shall:
 
(i)
 
advise the Agent promptly of any proposed Charter in
 
respect of its Ship;
(ii)
 
deliver a certified copy of the relevant Charter Documents
 
to the Agent forthwith after
their execution;
 
(iii)
 
forthwith after the Agent’s request, procure that
 
the relevant Owner:
 
(A)
 
executes a
 
Charter Assignment
 
in respect
 
of the relevant
 
Charter Documents
 
in
favour of the Security Agent;
 
(B)
 
executes a notice of assignment of such Charter Documents in the form provided
in the relevant Charter Assignment, and
 
(C)
 
ensures that
 
such notice
 
of assignment
 
is served
 
on the
 
relevant charterer
 
and
procures that the relevant charterer signs an acknowledgement of such notice (in
such form as the Agent may reasonably require);
 
(iv)
 
forthwith after
 
the Agent’s
 
request, deliver
 
to the
 
Agent such
 
documents and
 
evidence
of the type referred to in Part 2 of
Conditions precedent
) in relation to such
Charter Documents, the relevant Charter Assignment, the relevant
 
notice of assignment
and its
 
acknowledgment
 
(including,
 
but without
 
limitation, legal
 
opinions regarding
 
the
valid execution and binding effect thereof) as the Agent
 
may require; and
 
(v)
 
pay
 
on
 
the
 
Agent’s
 
demand
 
all
 
legal
 
and
 
other
 
costs
 
and
 
expenses
 
incurred
 
by
 
any
Finance
 
Party
 
in
 
connection
 
with
 
or
 
in
 
relation
 
to
 
any
 
such
 
assignment,
 
notice
 
of
assignment and the acknowledgement thereof.
23.9
 
Merchant use
 
The relevant Owner shall use the Ship only as a civil
 
merchant trading ship.
23.10
 
Lay up
Except with approval, the Ship shall not be laid up or deactivated.
 
23.11
 
Sharing of Earnings
Except
 
with
 
approval,
 
the
 
relevant
 
Owner
 
shall
 
not
 
enter
 
into
 
any
 
arrangement
 
under
 
which
 
its
Earnings from the Ship may be shared with anyone else.
 
23.12
 
Payment of Earnings
(a)
 
The relevant
 
Owner’s Earnings
 
from the
 
Ship shall
 
be paid
 
in the
 
way required
 
by the
 
Ship’s
General Assignment or Deed of Covenant.
 
(b)
 
If any Earnings are held by brokers or other agents, they shall be paid to the Security Agent, if
it
 
requires
 
this
 
after
 
the
 
Earnings
 
have
 
become
 
payable
 
to
 
it
 
under
 
the
 
Ship’s
 
General
Assignment or Deed of Covenant.
 
24
 
Condition and operation of Ships
24.1
 
Undertaking to comply
Each Obligor who
 
is a Party
 
undertakes that
 
this clause
 
will be complied
 
with in relation
 
to each
Mortgaged Ship throughout the relevant Ship’s Mortgage
 
Period.
 
24.2
 
Defined terms
In this clause
 
and in
(Conditions precedent)
:
applicable code
 
means any code
 
or prescribed procedures
 
required to be
 
observed by the
 
Ship or
the persons responsible for
 
its operation under any applicable
 
law (including but not
 
limited to those
currently known as the ISM Code and the ISPS Code).
 
applicable
 
law
 
means
 
all laws
 
and regulations
 
applicable
 
to vessels
 
registered
 
in
 
the Ship’s
 
Flag
State or which
 
for any other
 
reason apply to
 
the Ship or
 
to its condition
 
or operation at
 
any relevant
time.
 
applicable operating certificate
 
means any certificates, vessel response
 
plans, or other document
relating to
 
the Ship
 
or its
 
condition or
 
operation required
 
to be
 
in force
 
under any
 
applicable law
 
or
any applicable code.
 
24.3
 
Repair
The Ship shall be
 
kept in a good,
 
safe and efficient
 
state of repair.
 
The quality of
 
workmanship and
materials used to
 
repair the
 
Ship or replace
 
any damaged,
 
worn or lost
 
parts or equipment
 
shall be
sufficient to ensure that the Ship’s value
 
is not materially reduced.
 
24.4
 
Modification
Except
 
with
 
approval,
 
the
 
structure,
 
type
 
or
 
performance
 
characteristics
 
of
 
the
 
Ship
 
shall
 
not
 
be
modified in a way which could or might materially alter the Ship or
 
materially reduce its value.
 
24.5
 
Removal of parts
Except with approval, no
 
material part of the Ship
 
or any equipment shall be
 
removed from the Ship
if to
 
do so
 
would materially
 
reduce its
 
value (unless
 
at the
 
same time
 
it is
 
replaced with
 
equivalent
parts
 
or
 
equipment
 
owned
 
by
 
the
 
relevant
 
Owner
 
free
 
of
 
any
 
Security
 
Interest
 
except
 
under
 
the
Security Documents).
 
24.6
 
Third party owned equipment
Except with approval, equipment owned by
 
a third party shall not be installed
 
on the Ship if it cannot
be removed
 
without risk of
 
causing damage to
 
the structure or
 
fabric of the
 
Ship or incurring
 
significant
expense.
 
24.7
 
Maintenance of class; compliance with laws and codes
 
and Inventory of Hazardous Material
(a)
 
The Ship’s class shall
 
be the relevant Classification
 
with the relevant
 
Classification Society and
it
 
shall
 
be
 
maintained
 
free
 
of
 
all
 
overdue
 
recommendations,
 
requirements
 
and
 
conditions
affecting class or
 
adverse notations and neither
 
the Classification nor
 
the Classification Society
of
 
such
 
Ship
 
shall
 
be
 
changed
 
without
 
approval.
 
The
 
Ship
 
and
 
every
 
person
 
who
 
owns,
operates or manages the Ship shall comply with
 
all applicable laws and the requirements of all
applicable
 
codes.
 
There
 
shall
 
be
 
kept
 
in
 
force
 
and
 
on
 
board
 
the
 
Ship
 
or
 
in
 
such
 
person’s
custody
 
any
 
applicable
 
operating
 
certificates
 
which
 
are
 
required
 
by
 
applicable
 
laws
 
or
applicable codes to
 
be carried on
 
board the Ship
 
or to be
 
in such person’s
 
custody (including
but
 
not
 
limited
 
to
 
the
 
Inventory
 
of
 
Hazardous
 
Material
 
or
 
any
 
other
 
applicable
 
equivalent
document required by applicable law).
(b)
 
Promptly upon the issuance of
 
the Inventory of Hazardous
 
Material in respect of the Ship,
 
the
relevant Owner shall provide to the Agent a copy of the
 
same.
24.8
 
Surveys
The Ship shall be submitted to continuous surveys and any other surveys
 
which are required for it to
maintain the Classification as its class. Copies of reports of those surveys shall
 
be provided promptly
to the Agent if it so requests.
 
24.9
 
Inspection and notice of dry-docking
The Agent
 
and/or surveyors
 
or other
 
persons appointed
 
by it
 
for such
 
purpose shall
 
be allowed
 
to
board
 
the
 
Ship
 
at
 
all
 
reasonable
 
times
 
to
 
inspect
 
it
 
and
 
given
 
all
 
proper
 
facilities
 
needed
 
for
 
that
purpose.
 
The Agent
 
shall be
 
given reasonable
 
advance notice
 
of any
 
intended
 
dry-docking of
 
the
Ship (whatever the purpose of that dry-docking).
24.10
 
Prevention of arrest
All debts, damages,
 
liabilities and outgoings which
 
have given, or
 
may give, rise
 
to maritime, statutory
or possessory liens
 
on, or
 
claims enforceable
 
against, the
 
Ship, its
 
Earnings or Insurances
 
shall be
promptly paid and discharged.
 
24.11
 
Release from arrest
The
 
Ship,
 
its
 
Earnings
 
and
 
Insurances
 
shall
 
promptly
 
be
 
released
 
from
 
any
 
arrest,
 
detention,
attachment or levy, and any
 
legal process against
 
the Ship shall
 
be promptly discharged, by
 
whatever
action is required to achieve that release or discharge.
 
24.12
 
Information about Ship
The Agent shall promptly be given any information which it may reasonably require about the
 
Ship or
its employment, position, use or operation, including details
 
of towages and salvages and reports on
fuel oil consumption data as per Marpol
 
Annex VI, and copies of all its charter commitments
 
entered
into by or on behalf of any Obligor and copies of any applicable
 
operating certificates.
 
24.13
 
Notification of certain events
The Agent shall promptly be notified of:
(a)
 
any damage to the Ship
 
where the cost of
 
the resulting repairs may
 
exceed the Major Casualty
Amount for such Ship;
(b)
 
any occurrence which may result in the Ship becoming
 
a Total
 
Loss;
(c)
 
any requisition of the Ship for hire;
(d)
 
any Environmental Incident
 
involving the Ship
 
and Environmental Claim
 
being made in
 
relation
to such an incident;
(e)
 
any withdrawal or threat to withdraw any applicable operating
 
certificate in respect of the Ship;
 
(f)
 
the issue of any operating certificate required under any
 
applicable code in respect of the Ship;
 
(g)
 
the receipt of
 
notification that
 
any application for
 
such a certificate
 
has been refused
 
in respect
of the Ship;
(h)
 
any requirement
 
or recommendation
 
made in
 
relation to
 
the Ship
 
by any
 
insurer or
 
the Ship’s
Classification Society or by any competent authority which is not, or cannot be, complied with in
the manner or time required or recommended; and
(i)
 
any arrest,
 
hijacking or
 
detention of
 
the Ship
 
or any
 
exercise or
 
purported exercise
 
of a
 
lien or
other claim on the Ship or its Earnings or Insurances.
 
24.14
 
Payment of outgoings
All tolls, dues and other
 
outgoings whatsoever in respect of the Ship
 
and its Earnings and Insurances
shall be paid promptly.
 
Proper accounting records shall be kept of the Ship and its
 
Earnings.
 
24.15
 
Evidence of payments
The
 
Agent
 
shall
 
be
 
allowed
 
proper
 
and
 
reasonable
 
access
 
to
 
those
 
accounting
 
records
 
when
 
it
requests it and, when it requires it, shall be given satisfactory
 
evidence that:
(a)
 
the wages and allotments
 
and the insurance and
 
pension contributions of the
 
Ship’s crew are
being promptly and regularly paid;
(b)
 
all deductions from its
 
crew’s wages in respect of
 
any applicable Tax liability are being properly
accounted for; and
(c)
 
the
 
Ship’s
 
master
 
has
 
no
 
claim
 
for
 
disbursements
 
other
 
than
 
those
 
incurred
 
by
 
him
 
in
 
the
ordinary course of trading on the voyage then in progress.
 
24.16
 
Repairers’ liens
Except with approval,
 
the Ship shall
 
not be put
 
into any other
 
person’s possession for work
 
to be done
on the Ship
 
if the cost
 
of that
 
work will
 
exceed or
 
is likely
 
to exceed the
 
Major Casualty
 
Amount for
such Ship unless that person gives the Security Agent a
 
written undertaking in approved terms not to
exercise any lien on the Ship or its Earnings for any of the cost
 
of such work.
24.17
 
Survey report
As soon
 
as reasonably
 
practicable after
 
the Agent
 
requests it,
 
the Agent
 
shall be
 
given a
 
report on
the seaworthiness and/or
 
safe operation of
 
the Ship, from
 
approved surveyors or
 
inspectors.
 
If any
recommendations are made
 
in such a report
 
they shall be
 
complied with in
 
the way and
 
by the time
recommended in the report.
24.18
 
Lawful use
The Ship shall not be employed:
(a)
 
in any way
 
or in any
 
activity which is
 
unlawful under international
 
law or the
 
domestic laws of
any relevant country;
(b)
 
in carrying illicit or prohibited goods;
(c)
 
in a
 
way which
 
may make
 
it liable
 
to be
 
condemned by
 
a prize
 
court or
 
destroyed, seized
 
or
confiscated; or
(d)
 
if there
 
are hostilities
 
in any
 
part of
 
the world
 
(whether war has
 
been declared or
 
not), in
 
carrying
contraband goods
and
 
the
 
persons
 
responsible
 
for
 
the
 
operation
 
of
 
the
 
Ship
 
shall
 
take
 
all
 
necessary
 
and
 
proper
precautions to ensure that this does not happen, including
 
participation in industry or other voluntary
schemes available to the Ship and in which leading operators of ships operating under the same flag
or engaged in similar trades generally participate at the
 
relevant time.
 
24.19
 
War zones
Except with approval, the Ship
 
shall not enter or remain
 
in any zone which has been
 
declared a war
zone by any
 
government entity or
 
the Ship’s
 
war risk insurers.
 
If approval is
 
granted for it
 
to do so,
any requirements of the Agent and/or
 
the Ship’s insurers
 
necessary to ensure that the
 
Ship remains
properly
 
insured
 
in
 
accordance
 
with
 
the
 
Finance
 
Documents
 
(including
 
any
 
requirement
 
for
 
the
payment of extra insurance premiums) shall be complied with.
 
24.20
 
Sustainable and socially responsible dismantling of
 
Ships
(a)
 
The Obligors
 
shall
 
ensure
 
that each
 
Ship
 
or any
 
other
 
Fleet
 
Vessel
 
taken
 
out
 
of
 
service
 
for
dismantling, scrapping or
 
recycling or sold to
 
an intermediary with
 
an intention that such
 
Ship
or (as the case may be) that Fleet Vessel will be dismantled, scrapped or recycled, is recycled
at
 
a
 
recycling
 
yard
 
which
 
conducts
 
its
 
recycling
 
business
 
in
 
a
 
socially
 
and
 
environmentally
responsible
 
manner
 
in
 
accordance
 
with
 
the
 
provisions
 
of
 
The
 
Hong
 
Kong
 
International
Convention
 
for
 
the
 
Safe
 
and
 
Environmentally
 
Sound
 
Recycling
 
of
 
Ships
 
2009
 
and/or,
 
if
applicable, the EU Ship Recycling Regulation.
(b)
 
The Obligors
 
shall maintain
 
(and procure
 
that it
 
shall be
 
maintained)
 
a safe
 
sustainable
 
and
socially responsible policy with respect to dismantling of the Ships and any other Fleet Vessel.
24.21
 
Poseidon principles
(a)
 
The Borrowers
 
shall, upon
 
the request
 
of any Lender
 
and at the
 
cost of
 
the Borrowers,
 
on or
before 31 July
 
in each calendar
 
year,
 
supply or
 
procure the supply
 
to the Agent
 
of (i)
 
all ship
fuel oil consumption
 
data required to
 
be collected and
 
reported by the
 
Borrowers in accordance
with Regulation 22A of
 
Annex VI and any Statement
 
of Compliance in each case
 
relating to the
Ships
 
for
 
the
 
preceding
 
calendar
 
year
 
and
 
(ii)
 
any
 
such
 
other
 
information
 
agreed
 
by
 
the
Borrowers as any
 
Lender may
 
request in order
 
for such Lender
 
to comply with
 
its obligations
under
 
the
 
Poseidon
 
Principles.
 
For
 
the
 
avoidance
 
of
 
doubt,
 
such
 
information
 
shall
 
be
Confidential
 
Information
 
for
 
the
 
purposes
 
of
 
clause
 
(
Confidential
 
Information
)
 
but
 
the
Borrowers
 
acknowledge
 
that,
 
such
 
information
 
will
 
form
 
part
 
of
 
the
 
information
 
published
regarding
 
the
 
relevant
 
Lender’s portfolio
 
climate
 
alignment;
 
provided
 
always
 
that
 
no
 
Lender
shall publicly disclose such information with the identity of the Ship and /or the relevant Owner
without the Borrowers’ prior consent.
 
(b)
 
For the purposes of this clause
 
the following words shall have the following meanings:
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.
Poseidon Principles
 
means the financial industry framework for assessing and disclosing
 
the
climate alignment
 
of ship
 
finance portfolios
 
published on
 
18 June
 
2019 as
 
the same
 
may be
amended or replaced from time to time.
Statement of Compliance
 
means a Statement of Compliance
 
related to fuel oil consumption
pursuant to regulations 6.6 and 6.7 of Annex VI.
24.22
 
Inventory of Hazardous Materials
An Inventory of
 
Hazardous Materials shall be
 
maintained at all
 
times in relation to
 
each Ship and
 
each
other Fleet Vessel.
25
 
Insurance
25.1
 
Undertaking to comply
Each Obligor who is a Party undertakes that this
 
clause
 
shall be complied with in relation to each
Mortgaged Ship and its Insurances throughout the relevant Ship’s
 
Mortgage Period.
 
25.2
 
Insurance terms
In this clause
excess
 
risks
 
means
 
the
 
proportion
 
(if
 
any)
 
of
 
claims
 
for
 
general
 
average,
 
salvage
 
and
 
salvage
charges not recoverable under the hull and machinery
 
insurances of a vessel in consequence of the
value at which the vessel is assessed for the purpose
 
of such claims exceeding its insured value.
 
excess war risk P&I cover
 
means cover for claims only in
 
excess of amounts recoverable under the
usual
 
war
 
risk
 
cover
 
including
 
(but
 
not
 
limited
 
to)
 
hull
 
and
 
machinery,
 
crew
 
and
 
protection
 
and
indemnity risks.
 
hull
 
cover
 
means
 
insurance
 
cover
 
against
 
the
 
risks
 
identified
 
in
 
paragraph
 
of
 
clause
(Coverage required)
.
 
minimum hull
 
cover
 
means, in
 
relation to
 
a Mortgaged
 
Ship, an
 
amount equal
 
to 120
 
per cent
 
of
such proportion of the Loan at such time as is equal to the proportion which the market value
 
of such
Mortgaged
 
Ship
 
bears
 
to
 
the
 
aggregate
 
of
 
the
 
market
 
values
 
of
 
all
 
the
 
Mortgaged
 
Ships
 
at
 
that
relevant time.
P&I risks
 
means the usual
 
risks (including liability for
 
oil pollution, excess
 
war risk P&I
 
cover) covered
by a protection and indemnity association which is a member of the International Group of protection
and indemnity associations (or, if
 
the International Group ceases
 
to exist, any
 
other leading protection
and indemnity association or
 
other leading provider of
 
protection and indemnity insurance)
 
(including,
without limitation,
 
the proportion
 
(if any)
 
of any
 
collision liability
 
not covered
 
under the
 
terms of
 
the
hull cover).
 
25.3
 
Coverage required
The Ship (including its
 
hull and machinery, hull interest,
 
freight interest, disbursements and
 
increased
value) shall at all times be insured:
(a)
 
against
 
fire
 
and
 
usual
 
marine
 
risks
 
(including
 
excess
 
risks)
 
and
 
war
 
risks
 
(including
 
war
protection
 
and
 
indemnity
 
risks
 
(including
 
crew)
 
and
 
terrorism
 
risks,
 
piracy
 
and
 
confiscation
risks)
 
on an agreed value basis, for at least its minimum hull cover and no less than its market
value (and provided
 
always that the
 
hull and machinery
 
component shall at
 
all times cover
 
at
least 80 per cent of such Ship’s market value);
(b)
 
against P&I risks
 
for the highest
 
amount then available
 
in the insurance
 
market for vessels
 
of
similar age, size and type as the Ship
 
(but, in relation to liability for oil pollution, for a
 
maximum
amount of not less $1,000,000,000) and a freight, demurrage
 
and defence cover;
(c)
 
against such other risks and matters which
 
(i) are required by the
 
Ship’s Classification Society,
insurers
 
and/or
 
associations
 
or
 
any
 
public
 
body
 
from
 
time
 
to
 
time
 
in
 
order
 
to
 
maintain
 
the
Classification
 
or insurance
 
cover of
 
the Ship
 
and/or
 
(ii)
 
the Agent
 
notifies
 
it that
 
it considers
reasonable
 
for
 
a
 
prudent
 
shipowner
 
or
 
operator
 
to
 
insure
 
against
 
in
 
the
 
ordinary
 
course
 
of
business at the time of that notice; and
(d)
 
on terms which comply with the other provisions of this
 
clause
.
 
25.4
 
Placing of cover
The insurance coverage required by clause
(Coverage required)
 
shall be:
(a)
 
in the
 
name of
 
the relevant
 
Owner and
 
(in the
 
case of
 
the Ship’s
 
hull cover)
 
no other
 
person
(other than the Security Agent (and any other Finance Party required
 
by the Agent) if required
by the Agent
 
as loss payee in
 
accordance with the relevant
 
Loss Payable Clause) (unless such
other person is approved
 
and, if so required
 
by the Agent, has
 
duly executed and
 
delivered a
first priority assignment
 
of its interest
 
in the Ship’s
 
Insurances to the
 
Security Agent (and
 
any
other Finance Party required by the Agent) in an approved form and provided such supporting
documents and opinions in relation to that assignment
 
as the Agent requires);
(b)
 
if the Agent so requests, in the joint names of the relevant Owner and the Security
 
Agent (and
any other
 
Finance Party
 
required by
 
the Agent)
 
(and, to
 
the extent
 
reasonably practicable
 
in
the insurance market,
 
without liability on
 
the part of the
 
Security Agent or such
 
Finance Party
for premiums or calls);
(c)
 
in dollars or another approved currency;
(d)
 
arranged
 
through
 
approved
 
brokers
 
or
 
direct
 
with
 
approved
 
insurers
 
or
 
protection
 
and
indemnity or war risks associations;
 
(e)
 
in full force and effect; and
(f)
 
on approved terms and with approved insurers or associations.
 
25.5
 
Deductibles
The aggregate
 
amount of
 
any excess
 
or deductible under
 
the Ship’s
 
hull cover
 
shall not exceed
 
an
approved amount.
 
25.6
 
Mortgagee’s insurance
The Borrowers shall promptly reimburse to the Agent the
 
cost (as conclusively certified by the Agent)
of taking out and keeping in force in respect of the Ship and the other Mortgaged Ships
 
on approved
terms, or in considering or making claims under:
(a)
 
a mortgagee’s interest
 
insurance and a mortgagee’s
 
additional perils (pollution)
 
cover) for the
benefit of the Finance Parties for an aggregate amount up to
 
one hundred and twenty per cent
(120%) of the Loan; and
(b)
 
any
 
other
 
insurance
 
cover
 
which
 
the
 
Agent
 
reasonably
 
requires
 
in
 
respect
 
of
 
any
 
Finance
Party’s interests and potential liabilities
 
(whether as mortgagee of the
 
Ship or beneficiary of
 
the
Security Documents)
 
and, shall
 
provide any
 
information required
 
by the
 
Agent in
 
connection
with the placing
 
of such
 
insurance including,
 
but not limited
 
to, the name
 
of the Ship,
 
its IMO
number and information concerning the Loan.
25.7
 
Fleet liens, set off and cancellations
If
 
the
 
Ship’s
 
hull
 
cover
 
also
 
insures
 
other
 
vessels,
 
the
 
Security
 
Agent
 
shall
 
either
 
be
 
given
 
an
undertaking in
 
approved terms
 
by the brokers
 
or (if such
 
cover is not
 
placed through
 
brokers or the
brokers
 
do
 
not,
 
under
 
any
 
applicable
 
laws
 
or
 
insurance
 
terms,
 
have
 
such
 
rights
 
of
 
set
 
off
 
and
cancellation) the relevant insurers that the brokers or (if
 
relevant) the insurers will not:
(a)
 
set off
 
against any
 
claims in
 
respect of
 
the Ship
 
any premiums
 
due in respect
 
of any
 
of such
other vessels insured (other than other Mortgaged Ships);
 
or
(b)
 
cancel that cover because of non-payment of premiums
 
in respect of such other vessels,
or the Borrowers shall ensure that hull cover for the Ship and any other Mortgaged Ships is provided
under a separate policy from any other vessels.
 
25.8
 
Payment of premiums
All premiums,
 
calls, contributions
 
or other
 
sums payable
 
in respect
 
of the
 
Insurances shall
 
be paid
punctually and
 
the Agent
 
shall be
 
provided with
 
all relevant
 
receipts or
 
other evidence
 
of payment
upon request.
 
25.9
 
Details of proposed renewal of Insurances
At least 15 days before any of
 
the Ship’s Insurances are due to
 
expire, the Agent shall be notified
 
of
the names
 
of the
 
brokers,
 
insurers
 
and
 
associations
 
proposed
 
to be
 
used for
 
the
 
renewal of
 
such
Insurances and the amounts,
 
risks and terms in, against
 
and on which the Insurances
 
are proposed
to be renewed.
 
25.10
 
Instructions for renewal
At least 7
 
days before any
 
of the Ship’s
 
Insurances are
 
due to expire,
 
instructions shall
 
be given to
brokers, insurers and associations for them to be renewed
 
or replaced on or before their expiry.
 
25.11
 
Confirmation of renewal
The Ship’s
 
Insurances shall
 
be renewed
 
upon their
 
expiry in
 
a manner
 
and on
 
terms which
 
comply
with this
 
clause
 
and confirmation
 
of such
 
renewal given
 
by approved
 
brokers or
 
insurers to
 
the
Agent at least seven days (or such shorter period as may
 
be approved) before such expiry.
 
25.12
 
P&I guarantees
Any guarantee
 
or undertaking
 
required by
 
any protection
 
and indemnity
 
or war
 
risks
 
association in
relation to the Ship shall be provided when required by the
 
association.
 
25.13
 
Insurance documents
The Agent shall be provided with pro forma copies of all insurance
 
policies and other documentation
issued by
 
brokers,
 
insurers
 
and
 
associations
 
in
 
connection
 
with
 
the
 
Ship’s
 
Insurances
 
as soon
 
as
they
 
are
 
available
 
after
 
they
 
have
 
been
 
placed
 
or
 
renewed
 
and
 
all
 
insurance
 
policies
 
and
 
other
documents relating to
 
the Ship’s
 
Insurances shall be
 
deposited with any
 
approved brokers
 
or (if not
deposited with approved brokers) the Agent or some other
 
approved person.
 
25.14
 
Letters of undertaking
Unless otherwise approved where
 
the Agent is satisfied that
 
equivalent protection is afforded
 
by the
terms of the relevant Insurances and/or any applicable law and/or a letter of undertaking provided by
another person, on each placing
 
or renewal of the Insurances,
 
the Agent shall be
 
provided promptly
with letters of
 
undertaking in
 
an approved form
 
(having regard to
 
general insurance
 
market practice
and
 
law
 
at
 
the
 
time
 
of
 
issue of
 
such
 
letter
 
of
 
undertaking)
 
from
 
the
 
relevant
 
brokers,
 
insurers
 
and
associations.
 
25.15
 
Insurance Notices and Loss Payable Clauses
The interest of
 
the Security
 
Agent or any
 
other Finance
 
Parties as assignee
 
of the Insurances
 
shall
be endorsed
 
on all
 
insurance policies
 
and other
 
documents by
 
the incorporation
 
of a
 
Loss Payable
Clause
 
and
 
an
 
Insurance
 
Notice
 
in
 
respect
 
of
 
the
 
Ship
 
and
 
its
 
Insurances
 
signed
 
by
 
the
 
relevant
Owner and, unless
 
otherwise approved,
 
each other person
 
assured under the
 
relevant cover (other
than the Security Agent or any other Finance Party if it is
 
itself an assured).
 
25.16
 
Insurance correspondence
If
 
so
 
required
 
by
 
the
 
Agent,
 
the
 
Agent
 
shall
 
promptly
 
be
 
provided
 
with
 
copies
 
of
 
all
 
written
communications between the assureds
 
and brokers, insurers and associations
 
relating to any of the
Ship’s Insurances as soon as they are available.
 
25.17
 
Qualifications and exclusions
All requirements applicable to
 
the Ship’s Insurances shall
 
be complied with and
 
the Ship’s Insurances
shall only be subject to approved exclusions or qualifications.
 
25.18
 
Independent report
If the
 
Agent asks
 
the Borrowers
 
for a
 
detailed report
 
from an
 
approved independent
 
firm of
 
marine
insurance brokers giving their opinion on the adequacy of the Ship’s Insurances then the Agent shall
be provided
 
promptly
 
by the
 
Borrowers
 
with
 
such
 
a report
 
at no
 
cost
 
to the
 
Agent
 
or (if
 
the Agent
obtains such
 
a report
 
itself (which
 
it is
 
entitled to
 
do)), the
 
Borrowers shall
 
reimburse the
 
Agent for
the cost of obtaining that report.
25.19
 
Collection of claims
All documents and
 
other information
 
and all assistance
 
required by the
 
Agent to assist
 
it and/or the
Security Agent in trying
 
to collect or recover
 
any claims under the
 
Ship’s Insurances shall be provided
promptly.
 
25.20
 
Employment of Ship
The Ship
 
shall only
 
be employed
 
or operated
 
in conformity
 
with the
 
terms of
 
the Ship’s
 
Insurances
(including any
 
express or
 
implied warranties)
 
and not
 
in any other
 
way (unless
 
the insurers
 
have, if
required pursuant to
 
the terms of
 
the relevant Insurances,
 
consented and any
 
additional requirements
of the insurers have been satisfied).
 
25.21
 
Declarations and returns
If any of the Ship’s
 
Insurances are on terms
 
that require a declaration,
 
certificate or other document
to be made
 
or filed before the
 
Ship sails to, or
 
operates within, an area,
 
those terms shall be
 
complied
with within the time and in the manner required by those
 
Insurances.
 
25.22
 
Application of recoveries
All sums paid
 
under the Ship’s
 
Insurances to anyone
 
other than the
 
Security Agent shall
 
be applied
in repairing
 
the
 
damage and/or
 
in discharging
 
the liability
 
in respect
 
of which
 
they
 
have been
 
paid
except to the
 
extent that the repairs
 
have already been paid
 
for and/or the liability
 
already discharged.
 
25.23
 
Settlement of claims
Any
 
claim
 
under
 
the
 
Ship’s
 
Insurances
 
for
 
a
 
Total
 
Loss
 
or
 
Major
 
Casualty
 
shall
 
only
 
be
 
settled,
compromised or abandoned with prior approval.
 
25.24
 
Change in insurance requirements
If the
 
Agent gives
 
notice to
 
the Borrowers
 
to change
 
the terms
 
and requirements
 
of this
 
clause
(which the Agent may only
 
do, in such manner as
 
it considers appropriate, as
 
a result in changes of
circumstances or
 
practice after
 
the date
 
of this
 
Agreement), this
 
clause
 
shall be
 
modified in
 
the
manner so notified by the Agent on the date 14 days after
 
such notice from the Agent is received.
 
26
 
Minimum security value
26.1
 
Undertaking to comply
Each
 
Obligor
 
who
 
is
 
a
 
Party
 
undertakes
 
that
 
this
 
clause
 
will
 
be
 
complied
 
with
 
throughout
 
the
Facility Period.
 
26.2
 
Valuation of assets
For the purpose
 
of the Finance
 
Documents, the value
 
at any time
 
of any Mortgaged
 
Ship, any
 
Ship
before the Utilisation
 
or any other
 
asset over which
 
additional security
 
is provided under
 
this clause
 
will be its value as most recently determined in accordance
 
with this clause
.
 
26.3
 
Valuation frequency
Valuation
 
of
 
each
 
Mortgaged
 
Ship,
 
any
 
Ship
 
before
 
the
 
Utilisation
 
and
 
each
 
such
 
other
 
asset
 
in
accordance with this clause
 
may be required by the Majority Lenders at
 
any time (but in any event
not less frequently than once per calendar year).
 
26.4
 
Expenses of valuation
The Borrowers
 
shall bear,
 
and reimburse
 
to the
 
Agent
 
where
 
incurred by
 
the
 
Agent,
 
all costs
 
and
expenses of
 
providing any
 
and all
 
such valuations
 
at any
 
time, provided
 
that, in
 
the absence
 
of an
Event of
 
Default, the
 
Borrowers
 
shall bear
 
the cost
 
of the
 
valuations
 
of a
 
Ship obtained
 
under this
clause
 
only once
 
per calendar
 
year (but
 
without taking
 
into account
 
valuations under,
 
or for
 
the
purposes of, clause
 
(
Conditions of
 
Utilisation
) and
Conditions precedent
), clause
(
Sale or
 
Total
 
Loss
) or
 
clause
 
(
Security shortfall
) the
 
cost of
 
which shall
 
always be
 
borne by
the Borrowers).
26.5
 
Valuations procedure
The value of
 
any Mortgaged Ship
 
or any Ship
 
before the Utilisation
 
shall be determined in
 
accordance
with, and by valuers approved and
 
appointed in accordance with, this
 
clause
.
 
Additional security
provided under
 
this clause
 
shall be valued
 
in such
 
a way,
 
on such a
 
basis and
 
by such
 
persons
(including the Agent
 
itself) as may
 
be approved by
 
the Majority Lenders
 
or as
 
may be agreed
 
in writing
by the Borrowers and the Agent (on the instructions of
 
the Majority Lenders).
 
26.6
 
Currency of valuation
Valuations shall be provided by valuers in dollars or, if a valuer is of the view that the relevant type of
vessel
 
is
 
generally
 
bought
 
and
 
sold
 
in
 
another
 
currency,
 
in
 
that
 
other
 
currency.
 
If
 
a
 
valuation
 
is
provided in another currency,
 
for the purposes of this
 
Agreement it shall be converted
 
into dollars at
the Agent’s spot
 
rate of exchange
 
for the purchase
 
of dollars with that
 
other currency as
 
at the date
to which the valuation relates.
 
26.7
 
Basis of valuation
Each valuation will be addressed to
 
the Agent in its capacity as
 
such it will be no more than 30
 
days
old (except if a valuation is delivered pursuant to clause
 
(
Provision and contents of Compliance
Certificate
) together
 
with
 
a Compliance
 
Certificate
 
in which
 
case
 
it must
 
be no
 
more than
 
14 days
older than the date of delivery of the relevant Compliance
 
Certificate)
 
and made:
(a)
 
without physical inspection (unless required by the Agent);
(b)
 
on the basis of a sale for prompt delivery for a price payable in full in cash on delivery at arm’s
length on normal commercial terms between a willing buyer
 
and a willing seller; and
(c)
 
without taking into account the benefit or burden of any charter
 
commitment.
26.8
 
Information required for valuation
The Borrowers shall
 
promptly provide
 
to the Agent
 
and any such
 
valuer any
 
information which
 
they
reasonably require for the purposes of providing such a valuation.
 
26.9
 
Approval of valuers
All
 
valuers
 
must
 
have
 
been
 
approved.
 
The
 
Agent
 
may
 
from
 
time
 
to
 
time
 
notify
 
the
 
Borrowers
 
of
approval of
 
one or
 
more independent
 
ship brokers
 
or other
 
persons as
 
valuers for
 
the purposes
 
of
this clause
. The Agent
 
shall respond promptly
 
to any request
 
by the Borrowers
 
for approval of
 
a
broker nominated by the Borrowers. The Agent may at any time by notice to the
 
Borrowers withdraw
any previous approval of a
 
valuer for the purposes of future
 
valuations if such valuer
 
is no longer on
the
 
Agent’s
 
or
 
a
 
Lender’s
 
approved
 
panel
 
of
 
valuers.
 
That
 
valuer
 
may
 
not
 
then
 
be
 
appointed
 
to
provide
 
valuations
 
unless
 
it
 
is
 
once
 
more
 
approved.
 
If the
 
Agent
 
has
 
not
 
approved
 
at
 
least
 
three
brokers
 
as
 
valuers
 
at
 
a
 
time
 
when
 
a
 
valuation
 
is
 
required
 
under
 
this
 
clause
,
 
the
 
Agent
 
shall
promptly notify the Borrowers of the names of at
 
least three valuers which are approved. On the date
of this Agreement, the
 
following valuers are approved: Clarksons
 
Valuations Ltd., Braemar Seascope
Ltd.,
 
Arrow
 
Shipbroking
 
Group
 
Limited,
 
Simpson
 
Spence
 
Young
 
,
 
Fearnleys
 
A/S,
 
Galbraiths,
VesselsValue
 
,
 
Howe Robinson & Co. Ltd. and Maersk Broker.
 
26.10
 
Appointment of valuers
When a valuation
 
is required for
 
the purposes of
 
this clause
, the Agent
 
or, if
 
so approved at
 
that
time,
 
the
 
Borrowers
 
shall
 
promptly
 
appoint
 
approved
 
valuers
 
to
 
provide
 
such
 
a
 
valuation.
 
If
 
the
Borrowers are approved
 
to appoint valuers
 
but fail to
 
do so
 
promptly, the Agent may
 
appoint approved
valuers to provide that valuation.
 
26.11
 
Number of valuers
(a)
 
Each valuation may be carried out by two (2)
 
approved valuers nominated by the Borrowers. If
the Borrowers fail promptly to nominate a valuer then the Agent
 
may nominate such valuer.
 
(b)
 
If the two
 
valuations of
 
a Ship
 
made by
 
two approved
 
valuers vary
 
by more than
 
10 per cent
(by
 
reference
 
to
 
the
 
lower
 
of
 
such
 
two
 
valuations),
 
then
 
the
 
value
 
of
 
that
 
Ship
 
shall
 
be
determined
 
by
 
reference
 
to
 
those
 
two
 
valuations
 
and
 
a
 
third
 
valuation
 
provided
 
by
 
a
 
third
approved valuer nominated and appointed by the Agent to provide
 
a valuation of such Ship.
26.12
 
Differences in valuations
(a)
 
If
 
an
 
approved
 
valuer
 
provides
 
a
 
range
 
of
 
values
 
for
 
a
 
Ship,
 
the
 
value
 
of
 
such
 
Ship
 
for
 
the
purposes of the valuation shall be the mean average of
 
the values comprising such range.
(b)
 
If valuations
 
of a
 
Ship provided
 
by different
 
approved valuers
 
differ,
 
the value
 
of the
 
relevant
Ship for the purposes of the
 
Finance Documents will be the mean average
 
of those valuations.
 
26.13
 
Security shortfall
If
 
at
 
any
 
time
 
the
 
Security
 
Value
 
is
 
less
 
than
 
the
 
Minimum
 
Value,
 
the
 
Agent
 
may,
 
and
 
shall,
 
if
 
so
directed by the
 
Majority Lenders, by
 
notice to the
 
Borrowers require that
 
such deficiency be
 
remedied.
The
 
Borrowers
 
shall
 
then
 
within
 
30
 
days
 
of
 
receipt
 
of
 
such
 
notice
 
ensure
 
that
 
the
 
Security
 
Value
equals or exceeds the Minimum Value.
 
For this purpose, the Borrowers may:
(a)
 
provide additional security over
 
other assets approved by
 
the Majority Lenders in
 
accordance
with this clause
; and/or
(b)
 
cancel part of the Total
 
Commitments and prepay under
 
clause
(Voluntary prepayment)
 
a
corresponding amount of the Loan.
26.14
 
Creation of additional security
The value
 
of any
 
additional security
 
which the
 
Borrowers offer
 
to provide
 
to remedy
 
all or
 
part of
 
a
shortfall
 
in
 
the
 
amount
 
of
 
the
 
Security
 
Value
 
will
 
only
 
be
 
taken
 
into
 
account
 
for
 
the
 
purposes
 
of
determining the Security Value
 
if and when:
(a)
 
that additional
 
security,
 
its value
 
and the
 
method of
 
its valuation
 
have been
 
approved by
 
the
Majority Lenders;
(b)
 
a Security Interest over that security has been constituted in favour of the Security
 
Agent or (if
required or appropriate) any other Finance Parties in an approved
 
form and manner;
(c)
 
this Agreement
 
has been
 
unconditionally
 
amended in
 
such manner
 
as the
 
Agent requires
 
in
consequence of that additional security being provided;
 
and
(d)
 
the Agent, or its duly authorised representative, has received such documents and evidence it
may
 
require
 
in
 
relation
 
to
 
that
 
amendment
 
and
 
additional
 
security
 
including
 
documents
 
and
evidence
 
of
 
the
 
type
 
referred
 
to
 
in
(Conditions
 
precedent)
 
in
 
relation
 
to
 
that
amendment and additional security and its execution and (if applicable)
 
registration.
 
27
 
Chartering undertakings
27.1
 
Undertaking to comply
Each Obligor who
 
is a Party
 
undertakes that
 
this clause
 
will be complied
 
with in relation
 
to each
Mortgaged Ship
 
(which is
 
subject to
 
a Charter)
 
and its
 
Charter Documents
 
throughout the
 
relevant
Ship’s Mortgage Period.
 
27.2
 
Variations
Except with approval any Charter Documents shall not
 
be varied.
 
27.3
 
Releases and waivers
Except with approval, there
 
shall be no release by
 
the relevant Owner of
 
any obligation of any
 
other
person under the relevant Charter Documents
 
(including by way of novation,
 
assignment or transfer),
no waiver of any breach of any such obligation and
 
no consent to anything which would otherwise be
such a breach.
 
27.4
 
Termination by the
 
relevant Owner
Except
 
with
 
approval,
 
the
 
relevant
 
Owner
 
shall
 
not
 
terminate
 
or
 
rescind
 
any
 
relevant
 
Charter
Document or withdraw the Ship from service under the relevant
 
Charter or take any similar action.
 
27.5
 
Charter performance
The
 
relevant
 
Owner
 
shall
 
perform
 
its
 
obligations
 
under
 
the
 
relevant
 
Charter
 
Documents
 
for
 
the
relevant Ship, and
 
use its reasonable
 
endeavours to ensure
 
that each other
 
party to them
 
performs
their obligations under the relevant Charter Documents.
 
27.6
 
Notice of assignment
 
The relevant Owner
 
shall give notice
 
of assignment
 
of the relevant
 
Charter Documents
 
to the other
parties
 
to
 
them
 
in
 
the
 
form
 
specified
 
by
 
the
 
Charter
 
Assignment
 
for
 
that
 
Ship
 
and
 
shall
 
use
 
its
commercially
 
reasonable
 
endeavours
 
to
 
ensure,
 
that
 
the
 
Agent
 
receives
 
a
 
copy
 
of
 
that
 
notice
acknowledged by
 
each addressee
 
in the
 
form specified
 
therein on
 
or before
 
the date
 
of the
 
Ship’s
Mortgage.
 
27.7
 
Payment of Charter Earnings
All Earnings
 
which the
 
relevant Owner
 
is entitled
 
to receive
 
under the
 
relevant Charter
 
Documents
shall be paid in the manner required by the Finance Documents.
 
28
 
Bank accounts
28.1
 
Undertaking to comply
Each
 
Obligor
 
who
 
is
 
a
 
Party
 
undertakes
 
that
 
this
 
clause
 
will
 
be
 
complied
 
with
 
throughout
 
the
Facility Period.
 
28.2
 
Earnings Account
(a)
 
An Owner
 
or all
 
of the
 
Owners jointly
 
shall be
 
the holder(s)
 
of one or
 
more Accounts
 
with an
Account Bank which
 
is designated
 
as an “Earnings
 
Account” for the
 
purposes of the
 
Finance
Documents.
 
(b)
 
The Earnings
 
of the
 
Mortgaged Ships
 
and all
 
moneys payable
 
to the
 
relevant Owners
 
under
the Ships’ Insurances and any net amount payable to any Owner under any Hedging Contract
shall be paid by the persons
 
from whom they are due to an Earnings
 
Account unless required
to be paid to the Security Agent under the relevant Finance
 
Documents.
 
(c)
 
The
 
relevant
 
Account
 
Holder(s)
 
shall
 
not
 
withdraw
 
amounts
 
standing
 
to
 
the
 
credit
 
of
 
an
Earnings Account except as permitted by paragraph (d) below.
 
(d)
 
If there
 
is no
 
Event of
 
Default which is
 
continuing, amounts standing
 
to the
 
credit of
 
the Earnings
Accounts
 
shall
 
be
 
at
 
the
 
free
 
disposal
 
of
 
the
 
relevant
 
Account
 
Holder(s)
 
and
 
the
 
relevant
Account
 
Holder(s)
 
may
 
withdraw
 
moneys
 
from
 
an
 
Earnings
 
Account
 
for
 
any
 
purpose
whatsoever
 
which
 
is
 
permitted
 
(or
 
not
 
prohibited)
 
by
 
the
 
terms
 
of
 
this
 
Agreement
 
and
 
the
Finance Documents, including (without limitation) for:
(i)
 
payments then due to the Finance Parties under the Finance
 
Documents;
(ii)
 
payments to another Earnings Account;
(iii)
 
payments
 
of
 
the
 
proper
 
costs
 
and
 
expenses
 
of
 
insuring,
 
repairing,
 
operating
 
and
maintaining any Mortgaged Ship;
 
(iv)
 
payments
 
to
 
purchase
 
other
 
currencies
 
in
 
amounts
 
and
 
at
 
times
 
required
 
to
 
make
payments referred to above in the currency in which they
 
are due;
(i)
 
payments of dividends
 
to the extent
 
permitted by clause
 
(
Distributions and
 
other
payments
).
28.3
 
Other provisions
(a)
 
An Account may only be designated for the purposes described
 
in this clause
 
if:
(i)
 
such designation is made
 
in writing by the
 
Agent and acknowledged by
 
the Borrowers and
specifies the name
 
and address of
 
the Account Bank
 
and the number
 
and any designation
or other reference attributed to the Account;
(ii)
 
an
 
Account
 
Security
 
has
 
been
 
duly
 
executed
 
and
 
delivered
 
by
 
the
 
relevant
 
Account
Holder(s)
 
in favour
 
of
 
the
 
Security
 
Agent (and
 
any other
 
Finance
 
Party
 
required
 
by the
Agent);
(iii)
 
any notice
 
required
 
by the
 
Account
 
Security
 
to be
 
given
 
to
 
an
 
Account
 
Bank
 
has
 
been
given to,
 
and
 
acknowledged
 
by,
 
the
 
Account
 
Bank
 
in
 
the form
 
required
 
by the
 
relevant
Account Security; and
(iv)
 
the
 
Agent,
 
or
 
its
 
duly
 
authorised
 
representative,
 
has
 
received
 
such
 
documents
 
and
evidence
 
it
 
may
 
require
 
in
 
relation
 
to
 
the
 
Account
 
and
 
the
 
Account
 
Security
 
including
documents and
 
evidence of
 
the type referred
 
to in
(Conditions precedent)
 
in
relation to the Account and the relevant Account Security.
 
(b)
 
The rates
 
of payment
 
of interest
 
and
 
other terms
 
regulating
 
any Account
 
will
 
be a
 
matter of
separate agreement between the relevant Account Holder(s)
 
and an Account Bank.
 
(c)
 
If an
 
Account is
 
a fixed
 
term deposit
 
account, the
 
relevant Account
 
Holder(s) may
 
select the
terms of deposits
 
until the relevant
 
Account Security
 
has become
 
enforceable and
 
the Agent
directs otherwise.
 
(d)
 
The
relevant Account Holder(s)
 
shall not close any
 
Account or alter the
 
terms of any
 
Account
from those in force at the
 
time it is designated
 
for the purposes of this
 
clause
 
or waive any
of its rights in relation to an Account except with approval.
 
(e)
 
The
relevant
 
Account
 
Holder(s)
 
shall
 
notify
 
the
 
Agent
 
of
 
any
 
claim
 
or
 
notice
 
relating
 
to
 
an
Account
 
from
 
any
 
other
 
party
 
and
 
provide
 
the
 
Agent
 
with
 
any
 
other
 
information
 
it
 
may
reasonably request concerning any Account.
 
(f)
 
Each of the Agent and the
 
Security Agent agrees that if it
 
is an Account Bank in respect
 
of an
Account then there
 
will be no
 
restrictions on creating
 
a Security Interest
 
over that Account
 
as
contemplated
 
by
 
this
 
Agreement
 
and
 
it
 
shall
 
not
 
(except
 
with
 
the
 
approval
 
of
 
the
 
Majority
Lenders) exercise (in its capacity
 
as Account Bank) any
 
right of combination, consolidation
 
or
set-off which
 
it may
 
have in
 
respect of
 
that Account
 
in a
 
manner adverse
 
to the
 
rights of
 
the
other Finance Parties.
29
 
Business restrictions
29.1
 
Undertaking to comply
Except as otherwise approved by
 
the Majority Lenders, each Obligor
 
who is a Party undertakes that
this clause
 
will be complied with by
 
and in respect of each
 
person to which each relevant
 
provision
of this clause is expressed to apply throughout the Facility
 
Period.
 
29.2
 
General negative pledge
(a)
 
In
 
this
 
clause
,
Quasi-Security
 
means
 
an
 
arrangement
 
or
 
transaction
 
described
 
in
paragraph
 
below.
 
(b)
 
No Owner shall
create or permit to subsist any Security Interest over any
 
of its assets.
 
(c)
 
(Without prejudice to
 
clauses
(Financial Indebtedness)
and
 
(
Disposals
)), no Owner
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,
 
an
 
Obligor
 
or
 
any
 
other
 
Group
 
Member
 
(other
 
than
pursuant to disposals permitted under clause
 
(
Disposals
));
(ii)
 
sell, transfer, factor 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.
 
(d)
 
Paragraphs
 
and
 
above do
 
not apply
 
to any
 
Security Interest
 
or (as
 
the case
 
may be)
Quasi-Security, listed
 
below:
(i)
 
those granted or expressed to be granted by any of the
 
Security Documents;
(ii)
 
in relation to a Mortgaged Ship, Permitted Maritime Liens for
 
that Ship;
29.3
 
Financial Indebtedness
No Owner shall incur
 
or permit to exist, any
 
Financial Indebtedness owed by it to
 
anyone else except:
(a)
 
Financial
 
Indebtedness
 
incurred
 
under
 
the
 
Finance
 
Documents
 
and
 
Hedging
 
Contracts
 
for
Hedging Transactions entered into pursuant
 
to clause
 
(
Hedging
).
 
(b)
 
Financial Indebtedness incurred
 
in connection with
 
the Existing Facility
 
Agreements
 
and then
only until the latter is refinanced by the Utilisation;
(c)
 
Financial
 
Indebtedness
 
owed
 
to
 
another
 
Group
 
Member,
 
provided
 
that
 
such
 
Financial
Indebtedness is unsecured and subordinated to
 
all Financial Indebtedness incurred under
 
the
Finance
 
Documents
 
on
 
terms
 
that
 
no
 
payments
 
of
 
principal
 
or
 
interest
 
shall
 
be
 
made
thereunder during the Facility Period and otherwise on
 
approved terms;
(d)
 
trade credit granted to it by its suppliers on normal commercial
 
terms in the ordinary course of
its trading activities;
(e)
 
Financial Indebtedness permitted under clause
(Guarantees)
; and
(f)
 
Financial Indebtedness permitted under clause
(Loans and credit)
.
 
29.4
 
Guarantees
No Owner shall give or
 
permit to exist, any guarantee
 
by it in respect of indebtedness
 
of any person
or allow any of its indebtedness to be guaranteed by anyone
 
else except:
(a)
 
guarantees
 
by any
 
other
 
person
 
of such
 
Owner’s own
 
trade indebtedness
 
to trade
 
creditors
given in the ordinary course of its business;
 
(b)
 
guarantees
 
issued
 
by
 
any
 
protection
 
and
 
indemnity
 
or
 
war
 
risks
 
association
 
in
 
the
 
ordinary
course of such Owner’s business;
 
and
(c)
 
guarantees
 
which
 
are
 
Financial
 
Indebtedness
 
permitted
 
under
 
clause
(Financial
Indebtedness)
.
 
29.5
 
Loans and credit
No Owner shall be
 
a creditor in respect of
 
Financial Indebtedness other than in respect
 
of trade credit
granted
 
by
 
it
 
to
 
its
 
customers
 
on
 
normal
 
commercial
 
terms
 
in
 
the
 
ordinary
 
course
 
of
 
its
 
trading
activities.
29.6
 
Bank accounts, operating leases and other financial
 
transactions
No Owner shall:
(a)
 
maintain
 
any
 
current
 
or
 
deposit
 
account
 
with
 
a
 
bank
 
or
 
financial
 
institution
 
except
 
for
 
the
Accounts and
 
the deposit of
 
money, operation of current
 
accounts and
 
the conduct of
 
electronic
banking operations through the Accounts;
(b)
 
hold cash in any account (other than the Accounts);
(c)
 
enter into any
 
obligations under
 
operating leases relating
 
to assets
 
other than in
 
the ordinary
course of business; or
(d)
 
be party
 
to any
 
banking or
 
financial transaction,
 
whether on
 
or off
 
balance sheet,
 
that is
 
not
expressly permitted under this clause
(Business restrictions)
.
29.7
 
Disposals
No Owner shall enter into a single transaction
 
or a series of transactions, whether related
 
or not and
whether voluntarily
 
or involuntarily,
 
to sell,
 
lease, transfer
 
or otherwise
 
dispose of
 
any asset
 
except
for any
 
of the
 
following
 
disposals (so
 
long as
 
they are
 
not prohibited
 
by any
 
other
 
provision of
 
the
Finance Documents):
(a)
 
disposals
 
of
 
assets
 
made
 
in
 
(and
 
on
 
terms
 
reflecting)
 
the
 
ordinary
 
course
 
of
 
trading
 
of
 
the
disposing entity;
(b)
 
disposals
 
of
 
obsolete
 
assets,
 
or assets
 
which
 
are
 
no
 
longer required
 
for
 
the
 
purpose
 
of the
business of such Owner,
 
in each case for
 
cash on normal commercial
 
terms and on an
 
arm’s
length basis;
(c)
 
disposals
 
permitted
 
by
 
clause
(General
 
negative
 
pledge)
,
 
clause
(Financial
Indebtedness
)
or clause
 
(
Sale or other disposal of Ship
);
(d)
 
dealings with
 
its trade
 
creditors with
 
respect to
 
book debts
 
in the
 
ordinary course
 
of trading;
and
(e)
 
the
 
application
 
of
 
cash
 
or
 
cash
 
equivalents
 
in
 
the
 
acquisition
 
of
 
assets
 
or
 
services
 
in
 
the
ordinary course of its business.
29.8
 
Contracts and arrangements with Affiliates
No
 
Obligor
 
shall
 
be
 
party
 
to
 
any
 
arrangement
 
or
 
contract
 
with
 
any
 
of
 
its
 
Affiliates
 
unless
 
such
arrangement or contract is on an arm’s length basis.
 
29.9
 
Subsidiaries
No Owner shall establish or acquire a company or other
 
entity.
 
29.10
 
Acquisitions and investments
No
 
Owner
 
shall
 
acquire
 
any
 
person,
 
business,
 
assets
 
or
 
liabilities
 
or
 
make
 
any
 
investment
 
in
 
any
person or business or undertaking or enter into any joint-venture
 
arrangement except:
(a)
 
capital expenditure or
 
investments related to
 
maintenance of
 
a Ship in
 
the ordinary
 
course of
its business;
(b)
 
acquisitions of
 
assets in
 
the ordinary course
 
of business
 
(not being
 
new businesses or
 
vessels);
(c)
 
the incurrence of liabilities in the ordinary course of its
 
business;
(d)
 
any loan or credit not otherwise prohibited under this Agreement;
 
(e)
 
any
 
material
 
contracts
 
or
 
agreements
 
(including
 
key
 
operational
 
agreements)
 
having
 
an
aggregate value (as determined by the Agent) which does
 
not exceed $500,000; or
(f)
 
pursuant to any Finance Documents or any Charter Documents
 
to which it is party.
 
29.11
 
Reduction of capital
No Owner shall redeem or
 
purchase or otherwise reduce
 
any of its equity or
 
any other share capital
or any warrants or
 
any uncalled or unpaid
 
liability in respect
 
of any of them or
 
reduce the amount (if
any) for
 
the time
 
being standing
 
to the credit
 
of its
 
share premium
 
account or
 
capital redemption
 
or
other undistributable reserve in any manner.
 
29.12
 
Increase in capital
No Owner shall issue
 
shares or other equity
 
interests to any person
 
who is not its
 
shareholder as at
the date of this Agreement.
 
29.13
 
Distributions and other payments
(a)
 
No Obligor shall:
(i)
 
declare or
 
pay (including
 
by way
 
of set-off,
 
combination of
 
accounts or
 
otherwise) 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) or any warrants for the time being
 
in issue;
 
(ii)
 
repay or distribute any dividend or share premium reserve;
(iii)
 
redeem, repurchase, defease, retire or repay any of its share
 
capital or resolve to do so;
or
(iv)
 
make any payment
 
(including by
 
way of set
 
-off, combination
 
of accounts
 
or otherwise)
by way of interest, or
 
repayment, redemption, purchase
 
or other payment, in
 
respect of
any shareholder loan, loan stock or similar instrument;
except if no
 
Event of Default
 
has occurred and
 
is continuing at
 
that time and
 
no Event of
 
Default
would result from doing so.
 
(b)
 
The Guarantor will not
 
(and shall procure that no
 
other Group Member will) enter
 
into any other
loan,
 
facility
 
or
 
other
 
credit
 
agreement
 
or
 
any
 
other
 
agreement
 
for
 
Financial
 
Indebtedness
(including a finance
 
lease), pursuant to
 
which the
 
Guarantor or
 
that other Group
 
Member will
be restricted from paying dividends,
 
other than following the occurrence of
 
an event of default
or similar event howsoever described.
29.14
 
Charter-in
No Owner shall charter in any vessel or enter into
 
any other transaction or contract for such purpose.
30
 
Hedging Contracts
30.1
 
Undertaking to comply
 
Each Obligor undertakes that this clause
 
will be complied with throughout the Facility Period.
30.2
 
Hedging
(a)
 
If,
 
at
 
any
 
time
 
during
 
the
 
Facility
 
Period,
 
the
 
Borrowers
 
wish
 
to
 
enter
 
into
 
any
 
Treasury
Transaction so
 
as to hedge
 
all or any
 
part of their
 
exposure under
 
this Agreement
 
to interest
rate fluctuations, they shall advise the Agent in writing.
 
(b)
 
Any such
 
Treasury
 
Transaction
 
shall be
 
concluded
 
by the
 
Borrowers only,
 
with the
 
Hedging
Provider
 
on
 
the
 
terms
 
of
 
a
 
Hedging
 
Master
 
Agreement
 
(but
 
except
 
with
 
the
 
approval
 
of
 
the
Majority Lenders) no such Treasury
 
Transaction shall be concluded unless:
(i)
 
its purpose is to hedge the Borrowers’ interest rate risk in relation to the Loan for a period
expiring no later than the Final Repayment Date;
(ii)
 
its notional principal
 
amount, when
 
aggregated with the
 
notional principal amount
 
of any
other continuing Hedging
 
Contracts for
 
the Loan,
 
does not and
 
will not exceed
 
the Loan
as then scheduled to be repaid pursuant to clause
 
(
Scheduled repayment of Facility
);
and
(iii)
 
it is approved.
(c)
 
The Hedging
 
Provider shall
 
have the
 
right of
 
first refusal
 
to enter
 
into Treasury
 
Transactions
under
 
a
 
Hedging
 
Master
 
Agreement
 
which
 
any
 
Group
 
Member
 
(other
 
than
 
the
 
Borrowers)
which is
 
considering to
 
enter into
 
such Treasury
 
Transactions
 
for the
 
purpose of
 
hedging on
competitive terms the Borrowers'
 
and the Group’s exposure
 
to interest rate fluctuations
 
under
this Agreement.
(d)
 
If and when any such Treasury
 
Transaction has been
 
concluded, it shall constitute a
 
Hedging
Contract for the purposes of the Finance Documents.
30.3
 
Unwinding of Hedging Contracts
If, at any
 
time, and whether as
 
a result of any
 
repayment, prepayment (in whole or
 
in part) of the
 
Loan
or
 
any
 
cancellation
 
(in
 
whole
 
or
 
in
 
part)
 
of
 
any
 
Commitment
 
or
 
otherwise,
 
the
 
aggregate
 
notional
principal amount under all
 
Hedging Transactions in respect of the
 
Loan entered into by
 
the Borrowers
exceeds
 
or will
 
exceed
 
the
 
amount of
 
the
 
Loan
 
outstanding
 
at that
 
time after
 
such
 
prepayment
 
or
cancellation,
 
then
 
(unless
 
otherwise
 
approved
 
by
 
the
 
Majority
 
Lenders)
 
the
 
Borrowers
 
shall
immediately
 
wholly
 
or
 
partially
 
reverse,
 
offset,
 
unwind
 
or
 
otherwise
 
terminate
 
one
 
or
 
more
 
of
 
the
Hedging Transactions as are necessary to
 
ensure that the aggregate
 
notional principal amount under
the remaining continuing Hedging Transactions equals, and will in the future be equal to, the amount
of the Loan at that time
 
and as scheduled to be repaid from time
 
to time thereafter pursuant to clause
 
(
Scheduled repayment of Facility
).
30.4
 
Variations
Except with approval
 
or as
 
required by clause
 
(
Unwinding of
 
Hedging Contracts
), the Hedging
Master Agreement and the Hedging Contracts shall not
 
be varied.
30.5
 
Releases and waivers
Except with approval, there shall
 
be no release by
 
any Borrower of any obligation of
 
any other person
under the
 
Hedging
 
Contracts
 
(including
 
by way
 
of novation),
 
no waiver
 
of any
 
breach of
 
any such
obligation and no consent to anything which would otherwise
 
be such a breach.
30.6
 
Assignment of Hedging Contracts by Borrowers
Except
 
with
 
approval
 
or
 
by
 
the
 
Hedging
 
Contract
 
Security,
 
no
 
Borrower
 
shall
 
assign
 
or
 
otherwise
dispose of its rights under any Hedging Contract.
30.7
 
Termination
of Hedging Contracts by Borrowers
Except with
 
approval, no
 
Borrower shall
 
terminate or
 
rescind any
 
Hedging Contract
 
or close
 
out or
unwind
 
any
 
Hedging
 
Transaction
 
except
 
in
 
accordance
 
with
 
clause
 
(
Unwinding
 
of
 
Hedging
Contracts
) for any reason whatsoever.
30.8
 
Performance
of Hedging Contracts by the Borrowers
Each Borrower shall perform its obligations under the
 
Hedging Contracts to which it is party.
30.9
 
Information concerning Hedging Contracts
Each Borrower shall provide
 
the Agent with any
 
information it may request
 
concerning any Hedging
Contract,
 
including
 
all
 
reasonable
 
information,
 
accounts
 
and
 
records
 
that
 
may
 
be
 
necessary
 
or
 
of
assistance to enable the Agent to verify the amounts
 
of all payments and any other amounts payable
under the Hedging Contracts.
31
 
Events of Default
Each of the events or circumstances set out in
 
this clause
 
(except clause 31.23
(Acceleration)
) is
an Event of Default.
 
31.1
 
Non-payment
An 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 administrative or technical error
 
or by a Disruption Event; and
(b)
 
payment is made within three Business Days of its due date.
31.2
 
Hedging Contracts
 
(a)
 
An
 
Event
 
of
 
Default
 
or
 
Potential
 
Event
 
of
 
Default
 
(in
 
each
 
case
 
as
 
defined
 
in
 
the
 
Hedging
Master Agreement) has occurred and is continuing under
 
any Hedging Contract.
(b)
 
An
 
Early
 
Termination
 
Date
 
(as
 
defined
 
in
 
the
 
Hedging
 
Master
 
Agreement)
 
has
 
occurred
 
or
been or become capable of being effectively designated
 
under any Hedging Contract.
(c)
 
A person entitled to
 
do so gives notice
 
of such an Early
 
Termination
 
Date under any
 
Hedging
Contract except
 
with approval
 
or as
 
may be
 
required
 
by clause
 
(
Unwinding
 
of Hedging
Contracts
).
(d)
 
Any Hedging Contract is terminated, cancelled, suspended, rescinded or
 
revoked or otherwise
ceases
 
to
 
remain
 
in
 
full
 
force
 
and
 
effect
 
for
 
any
 
reason
 
except
 
with
 
approval
 
or
 
as
 
may
 
be
required by clause
 
(
Unwinding of Hedging Contracts
).
31.3
 
Financial covenants
The Obligors do not comply with clause
(Financial covenants)
.
31.4
 
Value of security
The Borrowers do not comply with clause
(Minimum security value)
.
31.5
 
Insurance
(a)
 
The Insurances of
 
a Mortgaged Ship
 
are not placed
 
and kept in
 
force in the
 
manner required
by clause
 
(
Coverage required
).
(b)
 
An Owner cancels
 
the Insurances of
 
its Mortgaged Ship as
 
required by clause
Insurances
).
 
(c)
 
Any insurer either:
(i)
 
cancels any such Insurances; or
(ii)
 
disclaims
 
liability
 
under
 
them
 
or
 
asserts
 
that
 
its
 
liability
 
under
 
them
 
is
 
or
 
should
 
be
reduced by reason of any mis-statement or failure or
 
default by any person.
 
31.6
 
Other obligations
(a)
 
An Obligor
 
does not
 
comply with
 
any provision
 
of the
 
Finance Documents
 
(other than
 
those
referred
 
to
 
in
 
clause
 
(
Sanctions
),
 
clause
(Non-payment),
 
clause
 
(
Hedging
Contracts
),
(Financial covenants)
, clause
(Value of security)
, clause
 
(
Insurance
)
or in any other provision of this clause
 
(
Events of default)
).
 
(b)
 
No Event of Default under paragraph
 
above will occur if the Agent
 
considers that the failure
to comply
 
is capable
 
of
 
remedy
 
and
 
the
 
failure
 
is
 
remedied
 
within
 
10
 
Business
 
Days
 
of
 
the
earlier of (A)
 
the Agent giving notice
 
to the Borrowers and
 
(B) any of
 
the Borrowers or
 
any other
Obligor becoming aware of the failure to comply.
 
31.7
 
Misrepresentation
Any
 
representation
 
or
 
statement
 
made
 
or
 
deemed
 
to
 
be
 
made
 
by
 
an
 
Obligor
 
in
 
the
 
Finance
Documents or
 
any other
 
document delivered
 
by or
 
on behalf
 
of any
 
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.
31.8
 
Cross default
(a)
 
Any
 
Financial
 
Indebtedness
 
of
 
any
 
Group
 
Member
 
is
 
not
 
paid
 
when
 
due
 
nor
 
within
 
any
originally applicable grace period.
 
(b)
 
Any Financial Indebtedness of
 
any Group Member 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
 
any
 
Group
 
Member
 
is
 
cancelled
 
or
suspended
 
by
 
a
 
creditor
 
of
 
that
 
Group
 
Member
 
as
 
a
 
result
 
of
 
an
 
event
 
of
 
default
 
(however
described).
 
(d)
 
The
 
counterparty
 
to
 
a
 
Treasury
 
Transaction
 
entered
 
into
 
by
 
any
 
Group
 
Member
 
becomes
entitled to terminate that Treasury Transaction early by reason of an event of default (however
described).
 
(e)
 
Any creditor of any Group Member becomes entitled to declare any Financial Indebtedness
 
of
that Group
 
Member due
 
and payable
 
prior to
 
its specified
 
maturity as
 
a result
 
of an
 
event of
default (however described).
 
(f)
 
No Event
 
of Default
 
will occur
 
under paragraphs
 
to
 
above if
 
the aggregate
 
amount of
Financial Indebtedness or commitment for
 
Financial Indebtedness falling within
 
paragraphs
to
 
above in the
 
case of the
 
Guarantor or any
 
other Group Member
 
other than the
 
Borrowers,
is less than $10,000,000 (or its equivalent in any other
 
currency or currencies).
31.9
 
Insolvency
(a)
 
A Group Member:
(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 any Finance Party in its capacity as such) with a view
to rescheduling any of its indebtedness.
 
(b)
 
The value
 
of the
 
assets
 
of
 
any Group
 
Member
 
is less
 
than its
 
liabilities
 
(taking into
 
account
contingent and prospective liabilities).
 
(c)
A
moratorium
 
is
 
declared
 
in
 
respect
 
of
 
any
 
indebtedness
 
of
 
any
 
Group
 
Member.
 
If
 
a
moratorium occurs, the ending of the moratorium will not remedy
 
any Event of Default caused
by that moratorium.
 
31.10
 
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
 
any
 
Group
 
Member
 
other
 
than
 
a
 
solvent
 
liquidation
 
or
reorganisation of any Group Member which is not an
 
Obligor;
(ii)
 
a composition, compromise, assignment or arrangement with any creditor of any Group
Member;
(iii)
 
the appointment of a liquidator (other
 
than in respect of a solvent
 
liquidation of a Group
Member
 
which
 
is
 
not
 
an
 
Obligor),
 
receiver,
 
administrative
 
receiver,
 
administrator,
compulsory manager
 
or other similar
 
officer in
 
respect of
 
any Group Member
 
or any of
its assets (including the directors
 
of any Group Member
 
requesting a person to
 
appoint
any such officer in relation to it or any of its assets);
 
or
(iv)
 
enforcement of any Security Interest over any assets of
 
any Group Member,
or any analogous procedure or step is taken in any jurisdiction.
 
(b)
 
Paragraph
 
above
 
shall
 
not
 
apply
 
to
 
any
 
winding-up
 
petition
 
(or
 
analogous
 
procedure
 
or
step) which is frivolous or vexatious and is discharged, stayed or dismissed within
 
seven days
of commencement or, if earlier,
 
the date on which it is advertised.
 
31.11
 
Creditors’ process
(a)
 
Any
 
expropriation,
 
attachment,
 
sequestration,
 
distress,
 
execution
 
or
 
any
 
other
 
analogous
process
 
or
 
enforcement
 
action
 
(including
 
enforcement
 
by
 
a
 
landlord)
 
affects
 
any
 
asset
 
or
assets of any Group Member)
 
and is not discharged within seven days.
 
(b)
 
Any judgment or order is made against any Group Member and is not stayed or complied
 
with
within seven days.
 
31.12
 
Unlawfulness and invalidity
(a)
 
It is
 
or becomes
 
unlawful
 
for
 
an Obligor
 
to perform
 
any
 
of its
 
obligations
 
under
 
the Finance
Documents or any Transaction Security ceases
 
to be effective.
 
(b)
 
Any obligation or obligations of any Obligor under any Finance Documents are not or cease to
be legal, valid, binding or enforceable and the cessation individually
 
or cumulatively materially
and adversely affects the interests of the Lenders
 
under the Finance Documents.
 
(c)
 
Any
 
Security
 
Interest
 
created
 
or
 
expressed
 
to
 
be
 
created
 
or
 
evidenced
 
by
 
the
 
Security
Documents ceases to be effective.
(d)
 
Any
 
Finance
 
Document
 
or
 
any
 
Transaction
 
Security
 
ceases
 
to
 
be
 
in
 
full
 
force
 
and
 
effect
 
or
ceases to
 
be legal,
 
valid, binding,
 
enforceable or
 
effective or
 
is alleged
 
by a
 
party to
 
it (other
than a Finance Party) to be ineffective for any reason.
 
(e)
 
Any Security Document does not create legal, valid, binding and enforceable security over the
assets
 
charged
 
under
 
that
 
Security
 
Document
 
or
 
the
 
ranking
 
or
 
priority
 
of
 
such
 
security
 
is
adversely affected.
 
31.13
 
Cessation of business
Any Group Member (other
 
than a dormant solvent
 
Group Member the value
 
of whose assets is
 
less
than $100,000) suspends or
 
ceases to carry on (or
 
threatens to suspend or
 
cease to carry on)
 
all or
a material part of its business.
31.14
 
Expropriation
The
 
authority
 
or
 
ability
 
of
 
any
 
Group
 
Member
 
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 Group Member or any of its assets.
 
31.15
 
Repudiation and rescission of Finance Documents
An Obligor
 
(or any
 
other relevant
 
party) rescinds
 
or purports
 
to rescind
 
or repudiates
 
or purports
 
to
repudiate a Finance
 
Document or any
 
of the Transaction Security
 
or evidences an
 
intention to rescind
or repudiate a Finance Document or any Transaction
 
Security.
 
31.16
 
Litigation
Either:
(a)
 
any
 
litigation,
 
alternative
 
dispute
 
resolution,
 
arbitration
 
or
 
administrative,
 
governmental,
regulatory or other investigations, proceedings or disputes
 
are commenced or threatened; or
(b)
 
any judgment
 
or order of
 
a court,
 
arbitral tribunal
 
or other
 
tribunal or any
 
order or sanction
 
of
any governmental or other regulatory body is made,
in
 
relation
 
to
 
any
 
Transaction
 
Document
 
or
 
the
 
transactions
 
contemplated
 
in
 
the
 
Transaction
Documents or against any Group Member or any of its assets, rights or revenues which has or might
have a Material Adverse Effect.
31.17
 
Material Adverse Effect
Any event or circumstance (including any Environmental Incident
 
or any change of law)
 
occurs which
the Majority Lenders reasonably
 
believe has, or might
 
have, or is reasonably
 
likely to have, a
 
Material
Adverse Effect.
 
31.18
 
Security enforceable
Any Security Interest (other than a
 
Permitted Maritime Lien) in respect of
 
Charged Property becomes
enforceable.
 
31.19
 
Arrest of Ship
Any
 
Mortgaged
 
Ship
 
is
 
arrested,
 
confiscated,
 
seized,
 
taken
 
in
 
execution,
 
impounded,
 
forfeited,
detained
 
in
 
exercise
 
or
 
purported
 
exercise
 
of
 
any
 
possessory
 
lien or
 
other
 
claim
 
and
 
the
 
relevant
Owner fails to procure the
 
release of such Ship within
 
a period of 10 days
 
thereafter (or such longer
period as may be approved).
 
31.20
 
Ship registration;
 
Classification
(a)
 
Except with approval, the
 
registration of any Mortgaged Ship
 
under the laws and
 
flag of its Flag
State is cancelled or terminated or,
 
where applicable, not renewed at least forty five
 
(45) days
prior to expiry of such registration or, if such Ship is only provisionally registered on the date
 
of
its Mortgage, such Ship is not permanently
 
registered under such laws within 90
 
days of such
date.
(b)
 
The Classification of any Mortgaged Ship is withdrawn
 
by the relevant Classification Society.
31.21
 
Political risk
(a)
 
Either
 
(1)
 
the
 
Flag
 
State
 
of
 
any
 
Mortgaged
 
Ship
 
or
 
any
 
Relevant
 
Jurisdiction
 
of
 
an
 
Obligor
becomes involved
 
in hostilities or
 
civil war or
 
(2) there is
 
a seizure of
 
power in the
 
Flag State
or any
 
such Relevant
 
Jurisdiction by
 
unconstitutional means
 
and (in
 
either such
 
case) in
 
the
opinion of the Agent
 
such event or circumstance, has or
 
is reasonably likely to have,
 
a Material
Adverse Effect.
(b)
 
No Event of Default under paragraph
 
above will occur if:
(i)
 
in the
 
opinion of
 
the Agent
 
it is
 
practicable for
 
action to
 
be taken
 
by: the
 
Borrowers to
prevent the relevant event or circumstance having a Material
 
Adverse Effect; and
(ii)
 
the Borrowers take such action
 
to the Agent’s satisfaction
 
within 14 days of notice
 
from
the Agent (specifying the relevant action to be taken)
 
to do so.
31.22
 
Breach of Ministerial Decision
If the
 
Hellenic Republic is
 
the Flag
 
State of
 
a Mortgaged Ship,
 
the relevant
 
Owner commits any
 
breach
of or varies
 
or cancels the
 
Ministerial Decision (as
 
defined in the
 
relevant Mortgage)
 
with respect to
that Mortgaged Ship,
 
except with approval.
31.23
 
Acceleration
On and
 
at any
 
time after
 
the occurrence
 
of an
 
Event of
 
Default which
 
is continuing
 
the Agent
 
may,
and shall if so directed by the Majority Lenders:
(a)
 
by notice to the Borrowers:
(i)
 
declare that no withdrawals be made from any Account;
(ii)
 
cancel the Total
 
Commitments at which time they shall immediately be cancelled;
(iii)
 
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,
at which time they shall become immediately due and payable;
 
and/or
(iv)
 
declare
 
that
 
all
 
or
 
part
 
of
 
the
 
Loan
 
be
 
payable
 
on
 
demand,
 
at
 
which
 
time
 
it
 
shall
immediately become payable on
 
demand by the Agent
 
on the instructions
 
of the Majority
Lenders; and/or
(b)
 
exercise or
 
direct the
 
Security Agent
 
and/or any
 
other beneficiary
 
of the Security
 
Documents
to
 
exercise
 
any
 
or
 
all
 
of
 
its
 
rights,
 
remedies,
 
powers
 
or
 
discretions
 
under
 
the
 
Finance
Documents.
 
32
 
Position of Hedging Provider
32.1
 
Rights of Hedging Provider
The Hedging
 
Provider
 
is a
 
Finance
 
Party and
 
as such,
 
will be
 
entitled to
 
share
 
in the
 
Transaction
Security in respect
 
of any liabilities
 
of the Borrowers
 
under the Hedging
 
Contracts with the
 
Hedging
Provider in the manner and to the extent contemplated by the Finance
 
Documents.
32.2
 
No voting rights
The Hedging
 
Provider shall
 
not be
 
entitled to
 
vote on
 
any matter
 
where
 
a decision
 
of the
 
Lenders
alone is
 
required under
 
this Agreement,
 
whether before
 
or after
 
the termination
 
or close
 
out of
 
the
Hedging Contracts with the Hedging Provider, provided that the Hedging Provider shall be entitled to
vote on any matter where a decision of all the Finance
 
Parties is expressly required.
32.3
 
Acceleration and enforcement of security
Neither the Agent
 
nor the
 
Security Agent
 
nor any other
 
beneficiary of the
 
Security Documents
 
shall
be obliged, in connection with
 
any action taken or proposed
 
to be taken under or
 
pursuant to clause
 
(
Events
 
of
 
Default
)
 
or
 
pursuant
 
to
 
the
 
other
 
Finance
 
Documents,
 
to
 
have
 
any
 
regard
 
to
 
the
requirements or
 
interests of
 
the Hedging
 
Provider except
 
to the
 
extent that
 
the Hedging
 
Provider is
also a Lender.
32.4
 
Close out of Hedging Contracts
(a)
 
The Hedging
 
Provider shall not
 
be entitled
 
to terminate or
 
close out
 
any Hedging
 
Contract or
any Hedging Transaction under it prior
 
to its stated maturity except:
(i)
 
if
 
the
 
Borrowers
 
have
 
not
 
paid
 
amounts
 
due
 
under
 
a
 
Hedging
 
Contract
 
and
 
such
amounts remain unpaid
 
for a period
 
of 30 days
 
after the due
 
date for payment
 
and the
Agent (acting on
 
the instructions
 
of the Majority
 
Lenders) consents
 
to such termination
or close out; or
(ii)
 
if the Agent takes any action under clause 31.23 (
Acceleration
); or
(iii)
 
if the
 
Loan and
 
other amounts
 
outstanding
 
under the
 
Finance Documents
 
(other
 
than
amounts outstanding under the Hedging Contracts) have
 
been repaid by the Borrowers
in full.
(b)
 
If there
 
is a
 
net amount
 
payable to
 
any Borrower
 
under a
 
Hedging Transaction
 
or a
 
Hedging
Contract upon its
 
termination and
 
close out, the
 
Hedging Provider
 
shall forthwith
 
pay that net
amount (together with interest earned on such amount) to the Security Agent for application in
accordance with clause
 
(
Order of application
).
(c)
 
The
 
Hedging
 
Provider
 
(in
 
any
 
capacity)
 
shall
 
not
 
set-off
 
any
 
such
 
net
 
amount
 
against
 
or
exercise any right of combination in respect of any other
 
claim it has against a Borrower.
 
Section 8 -
 
Changes to Parties
33
 
Changes to the Lenders
33.1
 
Assignments by the Lenders
Subject to
 
this
 
clause
,
 
a Lender
 
(the
Existing
 
Lender
)
 
may
 
assign
 
any
 
of
 
its
 
rights under
 
any
Finance Document
 
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
).
 
33.2
 
Borrower
consultation
An Existing Lender must
 
consult with the Borrowers for
 
no more than 10
 
Business Days before it
 
may
make
 
an
 
assignment
 
in
 
accordance
 
with
 
clause
 
(
Assignments
 
by
 
the
 
Lenders
)
 
unless
 
the
assignment is:
(a)
 
to another Lender or an Affiliate of any Lender;
(b)
 
to a fund which is a Related Fund of that Existing Lender;
 
(c)
 
to the
 
Arranger or
 
an Affiliate
 
of the
 
Arranger and
 
made in
 
connection
 
with the
 
facilitation of
primary syndication of the Facility; and
(d)
 
made at a time when an Event of Default is continuing.
33.3
 
Other conditions of assignment
(a)
 
An assignment will only be effective:
(i)
 
on
 
receipt
 
by
 
the
 
Agent
 
of
 
written
 
confirmation
 
from
 
the
 
New
 
Lender
 
(in
 
form
 
and
substance
 
satisfactory
 
to
 
the
 
Agent)
 
that
 
the
 
New
 
Lender
 
will
 
assume
 
the
 
same
obligations to the Borrowers and the other Finance Parties as it would have been under
if it had been an Original Lender;
(ii)
 
on the New Lender entering into any
 
documentation required for it to accede
 
as a party
to any
 
Security
 
Document
 
to which
 
the
 
Existing Lender
 
is a
 
party
 
in
 
its capacity
 
as a
Lender and,
 
in relation
 
to such
 
Security Documents,
 
completing any
 
filing, registration
or notice requirements;
(iii)
 
on the
 
performance by
 
the Agent
 
of all
 
necessary “know your
 
customer” or
 
similar checks
under all applicable laws
 
and regulations relating to
 
any person that it
 
is required to
 
carry
out in relation
 
to such assignment
 
to a New
 
Lender, the
 
completion of which
 
the Agent
shall promptly notify to the Existing Lender and the New Lender;
 
and
(iv)
 
if that Existing Lender assigns equal fractions of its Commitment and participation in the
Loan and each Utilisation (if any) under the Facility.
 
(b)
 
Each New Lender,
 
by executing the
 
relevant Transfer
 
Certificate, confirms, for
 
the avoidance
of doubt, that
 
the Agent
 
has authority
 
to execute on
 
its behalf any
 
amendment or
 
waiver that
has been approved by
 
or on behalf of
 
the requisite Lender
 
or Lenders in
 
accordance with the
Finance
 
Documents
 
on
 
or
 
prior
 
to
 
the
 
date
 
on
 
which
 
the
 
assignment
 
becomes
 
effective
 
in
accordance
 
with
 
the
 
Finance
 
Documents
 
and
 
that
 
it
 
is
 
bound
 
by
 
that
 
decision
 
to
 
the
 
same
extent as the Existing Lender would have been had it remained
 
a Lender.
 
33.4
 
Fee and expenses
The New Lender shall,
 
on the date
 
upon which an
 
assignment takes effect,
 
pay to the
 
Agent (for its
own account) a fee of $10,000.
33.5
 
Transfer costs and expenses
 
relating to security
The New Lender shall, promptly on demand, pay the Agent and
 
the Security Agent the amount of:
(a)
 
all costs
 
and expenses
 
(including
 
legal fees)
 
incurred by
 
the Agent
 
or the
 
Security Agent
 
to
facilitate the accession by the New Lender to, or assignment
 
or transfer to the New Lender of,
any
 
Security
 
Document
 
and/or
 
the
 
benefit
 
of
 
any
 
Security
 
Document
 
and
 
any
 
appropriate
registration of any such accession or assignment or transfer;
 
and
(b)
 
any cost,
 
loss or
 
liability the
 
Agent or
 
the Security
 
Agent incurs
 
in relation
 
to all
 
stamp duty,
registration and other
 
similar Taxes
 
payable in respect
 
of any such
 
accession, assignment or
transfer.
33.6
 
Limitation of responsibility of Existing Lenders
(a)
 
Unless
 
expressly
 
agreed
 
to
 
the
 
contrary,
 
an
 
Existing
 
Lender
 
makes
 
no
 
representation
 
or
warranty and assumes no responsibility to a New Lender
 
for:
(i)
 
the
 
legality,
 
validity,
 
effectiveness,
 
adequacy
 
or
 
enforceability
 
of
 
the
 
Finance
Documents, the Transaction Security
 
or any other documents;
(ii)
 
the financial condition of any Obligor;
(iii)
 
the performance
 
and observance
 
by any
 
Obligor or
 
any other
 
person of
 
its obligations
under the Finance Documents or any other documents;
(iv)
 
the application of any Basel Regulation
 
to the transactions contemplated by the Finance
Documents; or
(v)
 
the accuracy
 
of any statements
 
(whether written
 
or oral)
 
made in
 
or in connection
 
with
any Finance Document or any other document,
and any representations or warranties implied by law are
 
excluded.
 
(b)
 
Each New Lender confirms to the Existing Lender and
 
the other Finance Parties that it:
(i)
 
has
 
made
 
(and
 
shall
 
continue
 
to
 
make)
 
its
 
own
 
independent
 
investigation
 
and
assessment of:
(A)
 
the
 
financial
 
condition
 
and
 
affairs
 
of
 
the
 
Obligors
 
and
 
their
 
related
 
entities
 
in
connection with its participation in this Agreement; and
(B)
 
the application
 
of any
 
Basel Regulation
 
to the
 
transactions contemplated
 
by the
Finance Documents;
and has not relied exclusively on
 
any information provided to it by
 
the Existing Lender or
any
 
other
 
Finance
 
Party
 
in
 
connection
 
with
 
any
 
Transaction
 
Document
 
or
 
the
Transaction Security;
(ii)
 
will
 
continue
 
to
 
make
 
its
 
own
 
independent
 
appraisal
 
of
 
the
 
application
 
of
 
any
 
Basel
Regulation to the transactions contemplated by the Finance
 
Documents; and
(iii)
 
will
 
continue
 
to
 
make
 
its
 
own
 
independent
 
appraisal
 
of
 
the
 
creditworthiness
 
of
 
each
Obligor
 
and
 
its related
 
entities
 
whilst
 
any amount
 
is or
 
may be
 
outstanding
 
under
 
the
Finance Documents or any Commitment is in force.
 
(c)
 
Nothing in any Finance Document obliges an Existing
 
Lender to:
(i)
 
accept
 
a
 
re-assignment
 
from
 
a
 
New
 
Lender
 
of
 
any
 
of
 
the
 
rights
 
assigned
 
under
 
this
clause
; or
(ii)
 
support any
 
losses
 
directly
 
or indirectly
 
incurred
 
by the
 
New
 
Lender
 
by reason
 
of
 
the
non-performance by
 
any Obligor
 
of its
 
obligations under
 
any Transaction
 
Document or
by reason
 
of the
 
application of
 
any Basel
 
Regulation to
 
the transactions
 
contemplated
by the Transaction Documents or otherwise.
 
33.7
 
Procedure available for assignment
(a)
 
Subject to
 
the conditions
 
set
 
out in
 
clause
(Borrower
 
consent)
 
and clause
(Other
conditions of
 
assignment)
 
an assignment
 
may be
 
effected in
 
accordance with
 
paragraph
below when
 
(a) the Agent
 
executes an
 
otherwise duly
 
completed Transfer
 
Certificate and
 
(b)
the
 
Agent
 
executes
 
any
 
document
 
required
 
under
 
paragraph
 
of
 
clause
(Other
conditions of assignment)
which it may be
 
necessary for it to
 
execute in each
 
case delivered
to it by the Existing Lender and the New Lender
 
duly executed by them and, in the case of any
such
 
other
 
document,
 
any
 
other
 
relevant
 
person.
 
The
 
Agent
 
shall,
 
subject
 
to
 
paragraph
below,
 
as soon
 
as reasonably
 
practicable after
 
receipt by
 
it of
 
a Transfer
 
Certificate and
 
any
such other document
 
each duly completed,
 
appearing on
 
its face to
 
comply with
 
the terms of
this Agreement
 
and
 
delivered
 
in
 
accordance
 
with
 
the
 
terms
 
of this
 
Agreement,
 
execute
 
that
Transfer Certificate and such other
 
document.
 
(b)
 
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing
Lender and the
 
New Lender
 
once it is
 
satisfied it has
 
complied with all
 
necessary “know your
customer” or
 
other similar
 
checks under
 
all applicable
 
laws and
 
regulations in
 
relation to
 
the
assignment to such New Lender.
 
(c)
 
The Obligors who are Parties and the other Finance Parties irrevocably authorise the Agent to
execute any Transfer Certificate on their
 
behalf without any consultation with them.
 
(d)
 
On the Transfer Date:
(i)
 
the Existing
 
Lender will assign
 
absolutely to the
 
New Lender
 
the rights
 
under the
 
Finance
Documents expressed to be the subject of the assignment in
 
the Transfer Certificate;
(ii)
 
the Existing Lender will be released by each Obligor and the other Finance Parties from
the obligations owed by it (the Relevant Obligations) and expressed to be the subject of
the release
 
in the
 
Transfer
 
Certificate (but
 
the obligations
 
owed by
 
the Obligors
 
under
the Finance Documents shall not be released); and
(iii)
 
the New
 
Lender shall
 
become
 
a Party
 
as a
 
“Lender”
 
and will
 
be bound
 
by obligations
equivalent to the Relevant Obligations.
 
(e)
 
Lenders may utilise
 
procedures other than
 
those set out
 
in this clause
to assign their
 
rights
under the Finance
 
Documents (but
 
not, without
 
the consent
 
of the relevant
 
Obligor or
 
unless
in
 
accordance
 
with
 
this
 
clause
to
 
obtain
 
a
 
release
 
by
 
that
 
Obligor
 
from
 
the
 
obligations
owed to
 
that Obligor
 
by the
 
Lenders nor
 
the assumption
 
of equivalent
 
obligations
 
by a
 
New
Lender) provided that
 
they comply with
 
the conditions set
 
out in clause
(Borrower consent)
and clause
(Other conditions of assignment)
.
 
33.8
 
Copy of Transfer Certificate
 
to Borrowers
The Agent
 
shall, as
 
soon as
 
reasonably practicable
 
after it
 
has executed
 
a Transfer
 
Certificate and
any other
 
document required
 
under paragraph
 
of clause
(Other conditions
 
of assignment)
,
send a copy of that Transfer Certificate
 
and such other documents to the Borrowers.
 
33.9
 
Security over Lenders’ rights
In addition
 
to the
 
other rights
 
provided
 
to
 
Lenders under
 
this clause
 
34,
 
each Lender
 
may without
consulting with or obtaining consent from any Obligor, at any time charge, assign or
 
otherwise create
a Security Interest in
 
or over (whether by
 
way of collateral or
 
otherwise) all or any
 
of its rights under
any Finance Document to secure obligations of that Lender including,
 
without limitation:
(a)
 
any charge, assignment or other Security Interest to secure
 
obligations to a federal reserve or
central bank; and
(b)
 
any
 
charge,
 
assignment
 
or
 
other
 
Security
 
Interest
 
granted
 
to
 
any
 
holders
 
(or
 
trustee
 
or
representatives of holders) of obligations
 
owed, or securities issued, by
 
that Lender as security
for those obligations or securities,
 
except that no such charge, assignment or other Security
 
Interest shall:
(i)
 
release a Lender from any of its obligations under the
 
Finance Documents or substitute
the
 
beneficiary
 
of
 
the
 
relevant
 
charge,
 
assignment
 
or
 
other
 
Security
 
Interest
 
for
 
the
Lender as a party to any of the Finance Documents; or
(ii)
 
require any
 
payments to
 
be made
 
by an 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
relevant Lender under the Finance Documents.
34
 
Changes to the Obligors
34.1
 
Assignment or transfer
No Obligor may
 
assign any of
 
its rights or
 
transfer any
 
of its rights
 
or obligations
 
under the Finance
Documents.
Section 9 -
 
The Finance Parties
35
 
Roles of Agent, Security Agent and Arranger
35.1
 
Appointment of the Agent and Security Agent
Each other Finance Party (other than the Security Agent)
 
appoints:
(a)
 
the Agent to act as its agent under and in connection with the
 
Finance Documents;
and
(b)
 
the Security Agent to act as its agent and as trustee
 
under the Finance Documents to which
 
it
is or is intended to be a party.
35.2
 
Security Agent as trustee
The Security Agent
 
declares that it
 
holds the Security
 
Property on trust
 
for itself and
 
the other Finance
Parties on the terms contained in this Agreement.
 
35.3
 
Authorisation of Agent and Security Agent
Each of the Finance Parties authorises the Agent and
 
the Security Agent:
(a)
 
to
 
perform
 
the
 
duties,
 
obligations
 
and
 
responsibilities
 
and
 
to
 
exercise
 
the
 
rights,
 
powers,
authorities and discretions specifically given to the Agent or (as the case may be) the Security
Agent under
 
or in
 
connection with
 
the Finance
 
Documents together
 
with any
 
other incidental
rights, powers, authorities and discretions; and
(b)
 
to execute each of the Finance Documents
 
and all other documents that may
 
be approved by
the Majority Lenders for execution by it.
 
35.4
 
Instructions to Agent and the Security Agent
(a)
 
The Agent and the Security Agent shall:
(i)
 
subject to
 
paragraphs
 
and
 
below,
 
exercise or
 
refrain from
 
exercising any
 
right,
power, authority or discretion
 
vested in it as Agent or (as the case
 
may be) the Security
Agent in accordance with any instructions given to it by:
(A)
 
all Lenders if
 
the relevant Finance Document stipulates the
 
matter is an all
 
Lender
decision; and
(B)
 
in all other cases, the Majority Lenders; and
(ii)
 
not be
 
liable for
 
any act
 
(or
 
omission) if
 
it acts
 
(or refrains
 
from acting)
 
in accordance
with paragraph
 
above (or, if the relevant Finance Document stipulates the matter
 
is a
decision
 
for
 
any
 
other
 
Finance
 
Party
 
or
 
group
 
of
 
Finance
 
Parties,
 
in
 
accordance
 
with
instructions given to it by that Finance Party or group of
 
Finance Parties).
 
(b)
 
The Agent
 
and the
 
Security
 
Agent shall
 
be entitled
 
to
 
request instructions,
 
or clarification
 
of
any instruction, from the Majority
 
Lenders (or, if
 
the relevant Finance Document stipulates
 
the
matter is a decision for any other Finance Party or group of
 
Finance Parties, from that Finance
Party or
 
group of
 
Finance
 
Parties) as
 
to whether,
 
and
 
in what
 
manner,
 
it should
 
exercise or
refrain from exercising
 
any right, power,
 
authority or discretion
 
and the Agent
 
or (as the
 
case
may
 
be)
 
the
 
Security
 
Agent
 
may
 
refrain
 
from
 
acting
 
unless
 
and
 
until
 
it
 
receives
 
those
instructions or that clarification.
 
(c)
 
Save in the case of decisions stipulated to be a matter for any other Finance Party
 
or group of
Finance
 
Parties
 
under
 
the
 
relevant
 
Finance
 
Document
 
and,
 
unless
 
a
 
contrary
 
indication
appears in a
 
Finance Document,
 
any instructions given
 
to the Agent
 
or (as the
 
case may be)
the Security Agent
 
by the Majority Lenders
 
shall override any
 
conflicting instructions given
 
by
any other Parties and will be binding on all Finance Parties.
 
(d)
 
Paragraph
 
above shall not apply:
(i)
 
where a contrary indication appears in a Finance Document;
(ii)
 
where a Finance
 
Document requires the Agent
 
or the Security Agent
 
to act in
 
a specified
manner or to take a specified action;
(iii)
 
in
 
respect
 
of
 
any
 
provision
 
which
 
protects
 
the
 
Agent’s
 
or
 
the
 
Security
 
Agent’s
 
own
position in its personal capacity as opposed
 
to its role of the Agent
 
or the Security Agent
for the Finance Parties including, without limitation, clauses
(No duty to account)
 
to
clause
(Exclusion
 
of
 
liability)
,
 
clause
(Confidentiality)
 
to
 
clause
(Custodians
 
and
 
nominees)
 
and
 
clauses
(Acceptance
 
of
 
title)
 
to
(Disapplication of Trustee
 
Acts)
.
 
(e)
 
If giving
 
effect
 
to
 
instructions
 
given
 
by any
 
other
 
Finance
 
Party
 
or
 
group
 
of
 
Finance
 
Parties
would
 
(in
 
the
 
Agent’s
 
or
 
(as
 
the
 
case
 
may
 
be)
 
the
 
Security
 
Agent’s
 
opinion)
 
have
 
an
 
effect
equivalent
 
to
 
an
 
amendment
 
or
 
waiver
 
which
 
is
 
subject
 
to
 
clause
 
(
Amendments
 
and
waivers
), the Agent or
 
(as the case may
 
be) the Security Agent shall
 
not act in accordance
 
with
those instructions unless consent
 
to it so acting is
 
obtained from each Party (other
 
than itself)
whose consent would have been required in respect of
 
that amendment or waiver.
 
(f)
 
The Agent or the Security Agent may refrain from acting in
 
accordance with any instructions of
any other
 
Finance Party
 
or group
 
of Finance
 
Parties until
 
it has
 
received any
 
indemnification
and/or security
 
that it
 
may in
 
its discretion
 
require (which
 
may be
 
greater in
 
extent than
 
that
contained in the Finance
 
Documents and which may
 
include payment in advance)
 
for any cost,
loss or
 
liability (together
 
with any
 
applicable VAT)
 
which it
 
may incur
 
in complying
 
with those
instructions.
 
(g)
 
Without prejudice to the provisions of
 
clause
(Enforcement of Transaction Security)
 
and the
remainder of this
 
clause
, in the
 
absence of
 
instructions, the
 
Agent and the
 
Security Agent
may act (or refrain from acting) as it considers to be in the
 
best interest of the Lenders.
 
35.5
 
Legal or arbitration proceedings
Neither
 
the
 
Agent
 
nor
 
the
 
Security
 
Agent
 
is
 
authorised
 
to
 
act
 
on
 
behalf
 
of
 
another
 
Finance
 
Party
(without first
 
obtaining that
 
Finance Party’s
 
consent) in
 
any legal
 
or arbitration
 
proceedings relating
to any
 
Finance
 
Document.
 
This clause
 
shall
 
not
 
apply
 
to any
 
legal or
 
arbitration
 
proceeding
relating
 
to
 
the
 
perfection,
 
preservation
 
or
 
protection
 
of
 
rights
 
under
 
the
 
Security
 
Documents
 
or
enforcement of the Transaction Security.
 
35.6
 
Duties of the Agent
and the Security Agent
(a)
 
The
 
Agent’s
 
and
 
the
 
Security
 
Agent’s
 
duties
 
under
 
the
 
Finance
 
Documents
 
are
 
solely
mechanical and administrative in nature.
 
(b)
 
Subject to
 
paragraph
 
below,
 
the Agent
 
or (as
 
the case
 
may be)
 
the
 
Security Agent
 
shall
promptly:
(i)
 
(in the case
 
of the Security
 
Agent) forward to
 
the Agent a
 
copy of any
 
document received
by the Security Agent from any Obligor under any Finance Document;
 
and
(ii)
 
forward to a Party the
 
original or a copy of any
 
document which is delivered to the Agent
or (as the case may be) the Security Agent for that Party
 
by any other Party.
 
(c)
 
Without
 
prejudice
 
to
 
clause
(Copy
 
of
 
Transfer
 
Certificate
to
 
Borrowers)
,
 
paragraph
above shall not apply to any Transfer
 
Certificate.
 
(d)
 
Except where a
 
Finance Document
 
specifically provides
 
otherwise, neither
 
the Agent nor
 
the
Security Agent is
 
obliged to review
 
or check the
 
adequacy,
 
accuracy or completeness
 
of any
document it forwards to another Party.
 
(e)
 
Without prejudice
 
to clause
(Notification of
 
prescribed events)
, if
 
the Agent
 
or the
 
Security
Agent receives notice
 
from a Party
 
referring to this
 
Agreement, describing a Default
 
and stating
that the circumstance described is a Default, it shall promptly
 
notify the other Finance Parties.
 
(f)
 
If the Agent is
 
aware of the non-payment of
 
any principal, interest, commitment fee or
 
other fee
payable to a Finance Party
 
(other than the Agent or
 
the Arranger or the Security
 
Agent for their
own account) under this Agreement, it shall promptly notify th
 
e
 
other Finance Parties.
 
(g)
 
The Agent and the Security Agent
 
shall have only those duties, obligations and
 
responsibilities
expressly specified
 
in the
 
Finance Documents
 
to which
 
it is
 
expressed to
 
be a
 
party (and
 
no
others shall be implied).
 
35.7
 
Role of the Arranger and Sustainability Co-ordinator
Except as
 
specifically provided
 
in the
 
Finance Documents,
 
the Arranger
 
and the
 
Sustainability Co-
ordinator have no obligations of any
 
kind to any other Party under or in
 
connection with any Finance
Document or the transactions contemplated by the Finance
 
Documents.
 
35.8
 
No fiduciary duties
Nothing
 
in
 
any
 
Finance
 
Document
 
constitutes
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
 
Arranger
 
or
 
the
Sustainability Co-ordinator as a trustee or fiduciary
 
of any other person except to the extent that the,
the
 
Security
 
Agent
 
acts
 
as trustee
 
for
 
the
 
other
 
Finance
 
Parties
 
pursuant
 
to
 
clause
(Security
Agent as trustee)
.
35.9
 
No duty to account
None of the Agent, the Security Agent,
 
the Arranger or the Sustainability Co-ordinator shall be bound
to account to any other Finance Party
 
for any sum or the profit element of
 
any sum received by it for
its own account.
 
35.10
 
Business with the Group
The
 
Agent,
 
the
 
Security
 
Agent
 
and
 
the
 
Arranger
 
may
 
accept
 
deposits
 
from,
 
lend
 
money
 
to
 
and
generally engage in
 
any kind of banking
 
or other business
 
with any Obligor
 
or other Group
 
Member
or their Affiliates.
 
35.11
 
Rights and discretions of the Agent and the Security Agent
(a)
 
The Agent and the Security Agent may:
(i)
 
rely
 
on
 
any
 
representation,
 
communication,
 
notice
 
or
 
document
 
believed
 
by
 
it
 
to
 
be
genuine, correct and appropriately authorised;
(ii)
 
assume that:
(A)
 
any instructions
 
received
 
by
 
it from
 
the
 
Majority
 
Lenders,
 
any Lenders
 
or other
Finance Parties or
 
any group of
 
Lenders or other
 
Finance Parties are
 
duly given
in accordance with the terms of the Finance Documents;
 
(B)
 
unless it has received
 
notice of revocation, that
 
those instructions have not
 
been
revoked; and
(C)
 
in the case of the Security Agent, if it receives any instructions to act in relation to
the
 
Transaction
 
Security,
 
that
 
all
 
applicable
 
conditions
 
under
 
the
 
Finance
Documents for so acting have been satisfied; and
(iii)
 
rely on a certificate from any person:
(A)
 
as to any
 
matter of
 
fact or
 
circumstance which
 
might reasonably
 
be expected
 
to
be within the knowledge of that person; or
(B)
 
to the
 
effect that such
 
person approves of
 
any particular dealing,
 
transaction, step,
action or thing,
as sufficient evidence that that is the case and, in
 
the case of paragraph
 
above, may
assume the truth and accuracy of that certificate.
 
(b)
 
The Agent and
 
the Security
 
Agent may assume
 
(unless it has
 
received notice
 
to the contrary
in its capacity as agent or
 
(as the case may be) security
 
trustee for the other Finance Parties)
that:
(i)
 
no Notifiable Debt Purchase Transaction:
(A)
 
has been entered into;
(B)
 
has been terminated; or
(C)
 
has ceased to be with a Guarantor Affiliate;
(ii)
 
no Default has occurred
 
(unless (in the case
 
of the Agent) it has
 
actual knowledge of a
Default arising under clause
 
(
Non-payment
));
(iii)
 
any
 
right,
 
power,
 
authority
 
or
 
discretion
 
vested
 
in
 
any
 
Party
 
or
 
any
 
group
 
of
 
Finance
Parties has not been exercised; and
(iv)
 
any notice
 
or request
 
made by
 
the Borrowers
 
(other than
 
(in the
 
case of
 
the Agent)
 
a
Utilisation Request or
 
Selection Notice)
 
is made on
 
behalf of and
 
with the consent
 
and
knowledge of all the Obligors.
 
(c)
 
Each of
 
the Agent
 
and the
 
Security Agent
 
may engage
 
and pay
 
for the
 
advice or
 
services of
any
 
lawyers,
 
accountants,
 
tax
 
advisers,
 
insurance
 
consultants,
 
ship
 
managers,
 
valuers,
surveyors or other professional advisers or experts.
 
(d)
 
Without prejudice to the generality of paragraph
 
above or paragraph
 
below, each of the
Agent and the Security Agent may at any time engage and pay for the services of any lawyers
to act
 
as independent counsel
 
to it
 
(and so
 
separate from any
 
lawyers instructed by
 
the Lenders
or any other Finance Party) if it, in its reasonable opinion,
 
deems this to be desirable.
 
(e)
 
Each of the
 
Agent and the
 
Security Agent may
 
rely on
 
the advice or
 
services of
 
any lawyers,
accountants, tax advisers,
 
insurance consultants,
 
ship managers, valuers,
 
surveyors or other
professional advisers or experts (whether obtained by it
 
or by any other Party) and shall
 
not be
liable for any
 
damages, costs
 
or losses
 
to any person,
 
any diminution
 
in value or
 
any liability
whatsoever arising as a result of its so relying.
 
(f)
 
The
 
Agent,
 
the
 
Security
 
Agent,
 
any
 
Receiver
 
and
 
any
 
Delegate
 
may
 
act
 
in
 
relation
 
to
 
the
Finance Documents,
 
the Transaction
 
Security and
 
the Security
 
Property through
 
its officers,
employees and agents and shall not:
(i)
 
be liable for any error of judgment made by any such
 
person; or
(ii)
 
be bound to supervise,
 
or be in any
 
way responsible for
 
any loss incurred by
 
reason of
misconduct, omission or default on the part, of any such
 
person,
unless
 
such
 
error
 
or
 
such
 
loss
 
was
 
directly
 
caused
 
by
 
the
 
Agent’s,
 
the
 
Security
 
Agent’s,
Receiver’s or Delegate’s gross negligence or wilful misconduct.
 
(g)
 
Unless any Finance Document expressly specifies
 
otherwise, the Agent or the Security Agent
may disclose to any other
 
Party any information it reasonably believes
 
it has received as agent
or security trustee under this Agreement.
 
(h)
 
Without prejudice to the generality of paragraph (g) above, the
 
Agent:
(i)
 
may disclose; and
(ii)
 
on the
 
written request of
 
a Borrower or
 
the Majority Lenders
 
shall, as soon
 
as reasonably
practicable, disclose,
the identity of a Defaulting Lender to the other Finance
 
Parties and the Borrowers.
(i)
 
Notwithstanding
 
any
 
other
 
provision
 
of
 
any
 
Finance
 
Document
 
to
 
the
 
contrary,
 
none
 
of
 
the
Agent, the Security Agent nor the Arranger is obliged to do or omit to do anything
 
if it would or
might in
 
its reasonable
 
opinion constitute
 
a breach
 
of any
 
law or
 
regulation or
 
a breach
 
of a
fiduciary duty or duty of confidentiality.
 
(j)
 
Notwithstanding any provision of any Finance Document to the contrary, neither the Agent nor
the Security
 
Agent is
 
obliged to
 
expend or
 
risk its
 
own funds
 
or otherwise
 
incur any
 
financial
liability in
 
the performance
 
of its
 
duties,
 
obligations
 
or responsibilities
 
or the
 
exercise
 
of any
right, power, authority
 
or discretion if it has grounds for
 
believing the repayment of such funds
or adequate
 
indemnity against,
 
or security
 
for,
 
such risk
 
or liability
 
is not
 
reasonably assured
to it.
 
(k)
 
Neither the Agent nor the Arranger
 
shall be obliged to request any certificate,
 
opinion or other
information
 
under
 
clause
(Information
 
undertakings)
 
unless
 
so
 
required
 
in
 
writing
 
by
 
a
Lender or the Hedging Provider,
 
in which case the Agent shall promptly
 
make the appropriate
request
 
of
 
the
 
Borrowers
 
if
 
such
 
request
 
would
 
be
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
this
Agreement.
 
35.12
 
Responsibility for documentation and other matters
None of the Agent, the Security Agent, the
 
Arranger, the
 
Sustainability Co-ordinator any Receiver or
any Delegate is responsible or liable for:
(a)
 
the adequacy,
 
accuracy or completeness of any
 
information (whether oral or written)
 
supplied
by the
 
Agent, the
 
Security Agent,
 
the Arranger,
 
the Sustainability
 
Co-ordinator,
 
an Obligor
 
or
any
 
other
 
person
 
in
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
or
 
the
 
transactions
contemplated in
 
the Finance
 
Documents or
 
any other
 
agreement, arrangement
 
or document
entered
 
into,
 
made
 
or
 
executed
 
in
 
anticipation
 
of,
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
Document;
(b)
 
the legality,
 
validity,
 
effectiveness,
 
adequacy or
 
enforceability of
 
any Transaction
 
Document,
the Transaction Security
 
or any
 
other agreement,
 
arrangement or document
 
entered into,
 
made
or
 
executed
 
in
 
anticipation
 
of,
 
under
 
or
 
in
 
connection
 
with
 
any
 
Transaction
 
Document,
 
the
Transaction Security or the Security
 
Property;
(c)
 
the
 
application
 
of
 
any
 
Basel
 
Regulation
 
to
 
the
 
transactions
 
contemplated
 
by
 
the
 
Finance
Documents;
(d)
 
(in the case of the Security Agent) any loss to the Security
 
Property arising in consequence of
the failure, depreciation or loss of any Charged
 
Property or any investments made or retained
in good faith or by reason of any other matter or thing;
(e)
 
the failure
 
of any
 
Obligor or
 
any other
 
party to
 
perform its
 
obligations under
 
any Transaction
Document or the financial condition of any such person;
 
(f)
 
(save as otherwise provided in this clause
) taking or omitting to take any other action under
or in relation to the Security Documents;
 
(g)
 
any other beneficiary
 
of a Security
 
Document failing
 
to perform
 
or discharge
 
any of
 
its duties
or obligations under any Finance Document; or
(h)
 
any determination
 
as to
 
whether
 
any information
 
provided
 
or to
 
be
 
provided
 
to
 
any Finance
Party
 
is
 
non-public
 
information
 
the
 
use
 
of
 
which
 
may
 
be
 
regulated
 
or
 
prohibited
 
by
 
any
applicable law or regulation relating to insider dealing or
 
otherwise.
 
35.13
 
No duty to monitor
Neither the Agent nor the Security Agent shall be bound to
 
enquire:
(a)
 
whether or not any Default has occurred;
(b)
 
as
 
to
 
the
 
performance,
 
default
 
or
 
any
 
breach
 
by
 
any
 
Party
 
or
 
any
 
Obligor
 
of
 
its
 
obligations
under any Finance Document; or
(c)
 
whether any other event specified in any Finance Document has
 
occurred.
 
35.14
 
Exclusion of liability
(a)
 
Without
 
limiting
 
paragraph
 
below
 
(and
 
without
 
prejudice
 
to
 
any
 
other
 
provision
 
of
 
any
Finance
 
Document
 
excluding
 
or
 
limiting
 
the
 
liability
 
of
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
Sustainability Co-ordinator,
 
any Receiver or Delegate), none of the Agent, the Security
 
Agent,
any Receiver nor any
 
Delegate will be liable (including, without
 
limitation, for negligence or any
other category of liability whatsoever) for:
(i)
 
any
 
damages,
 
costs
 
or
 
losses
 
to
 
any
 
person,
 
any
 
diminution
 
in
 
value,
 
or
 
any
 
liability
whatsoever arising as
 
a result of
 
taking or not
 
taking any action
 
under or in
 
connection
with any Finance Document or the Security
 
Property, unless directly caused by its gross
negligence or wilful misconduct;
(ii)
 
exercising, or not exercising, any right, power,
 
authority or discretion given to it by,
 
or in
connection with, any Finance Document, the Security Property or any other agreement,
arrangement or document entered into, made or
 
executed in anticipation of, under
 
or in
connection with, any Finance Document or the Security
 
Property;
(iii)
 
any shortfall which arises on the enforcement or realisation
 
of the Security Property; or
(iv)
 
without prejudice
 
to the generality
 
of paragraphs
 
to
 
above, any
 
damages, costs,
losses, any diminution in value or any liability whatsoever arising
 
as a result of:
(A)
 
any act, event or circumstance not reasonably within its
 
control; or
(B)
 
the general risks of investment in, or the holding of assets
 
in, any jurisdiction,
including (in each case
 
and without limitation)
 
such damages, costs, losses,
 
diminution
in
 
value
 
or
 
liability
 
arising
 
as
 
a
 
result
 
of:
 
nationalisation,
 
expropriation
 
or
 
other
governmental
 
actions;
 
any
 
regulation,
 
currency
 
restriction,
 
devaluation
 
or
 
fluctuation;
market conditions
 
affecting
 
the execution
 
or settlement
 
of transactions
 
or the
 
value of
assets (including
 
any Disruption
 
Event), breakdown,
 
failure or
 
malfunction of
 
any third
party transport, telecommunications, computer services or systems; natural disasters or
acts of God; war, terrorism,
 
insurrection or revolution; or strikes or industrial action.
 
(b)
 
No
 
Party
 
(other
 
than
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
 
Sustainability
 
Co-ordinator,
 
that
Receiver
 
or
 
that
 
Delegate
 
(as
 
applicable))
 
may
 
take
 
any
 
proceedings
 
against
 
any
 
officer,
employee or agent
 
of the Agent,
 
the Security Agent,
 
the Sustainability Co-ordinator, a Receiver
or a Delegate in
 
respect of any
 
claim it might
 
have against the
 
Agent, the Security
 
Agent, the
Sustainability Co-ordinator,
 
a Receiver
 
or a
 
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
 
and
 
any
 
officer,
 
employee
 
or
 
agent
 
of
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
Sustainability Co-ordinator, a Receiver or a Delegate may rely on this clause subject to clause
(Third party rights)
 
and the provisions of the Third Parties Act.
 
(c)
 
Neither
 
of
 
the
 
Agent
 
or
 
the
 
Security
 
Agent
 
will
 
be
 
liable
 
for
 
any
 
delay
 
(or
 
any
 
related
consequences) in crediting an account
 
with an amount required under
 
the Finance Documents
to be paid by it if it has taken all necessary steps as soon as reasonably practicable
 
to comply
with the regulations
 
or operating procedures
 
of any recognised
 
clearing or settlement
 
system
used by it for that purpose.
 
(d)
 
Nothing in any
 
Finance Document
 
shall oblige
 
the Agent,
 
the Sustainability
 
Co-ordinator,
 
the
Security Agent or the Arranger to carry out
(i)
 
any “know your customer” or other checks in relation to
 
any person; or
(ii)
 
any check
 
on the
 
extent to
 
which any
 
transaction contemplated
 
by any
 
of the
 
Finance
Documents might
 
be unlawful
 
for any
 
Finance Party
 
or for
 
any Affiliate
 
of any
 
Finance
Party or for any Affiliate of any Finance Party,
on behalf of any other Finance
 
Party and each other Finance Party
 
confirms to the Agent, the
Security Agent, the Sustainability Co-ordinator and the Arranger that it is
 
solely responsible for
any such checks it is required to carry out and that it may not rely
 
on any statement in relation
to such checks made by the Agent, the Security Agent
 
or the Arranger.
 
(e)
 
Without prejudice
 
to any
 
provision of
 
any Finance
 
Document excluding
 
or limiting
 
the liability
of the
 
Agent, the Security
 
Agent, the Sustainability
 
Co-ordinator, any Receiver or
 
any Delegate,
any liability of
 
the Agent,
 
the Security
 
Agent, the
 
Sustainability Co-ordinator,
 
any Receiver
 
or
any
 
Delegate
 
arising
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
or
 
the
 
Security
Property
 
shall
 
be
 
limited
 
to
 
the
 
amount
 
of
 
actual
 
loss
 
which
 
has
 
been
 
finally
 
judicially
determined
 
to
 
have
 
been suffered
 
(as
 
determined
 
by
 
reference to
 
the
 
date
 
of default
 
of the
Agent, the Security
 
Agent, the Sustainability
 
Co-ordinator,
 
Receiver or Delegate
 
(as the case
may be)
 
or,
 
if later,
 
the date
 
on which
 
the loss
 
arises as
 
a result
 
of such
 
default) but
 
without
reference to any special
 
conditions or circumstances
 
known to the Agent,
 
the Security Agent,
the Sustainability Co-ordinator,
 
Receiver or Delegate
 
(as the case may
 
be) at any
 
time which
increase
 
the
 
amount
 
of
 
that
 
loss.
 
In
 
no
 
event
 
shall
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
the
Sustainability
 
Co-ordinator,
 
any
 
Receiver
 
or
 
any
 
Delegate
 
be
 
liable
 
for
 
any
 
loss
 
of
 
profits,
goodwill, reputation, business opportunity
 
or anticipated saving,
 
or for special,
 
punitive, indirect
or consequential damages, whether
 
or not the
 
Agent, the Security
 
Agent, the Sustainability Co-
ordinator,
 
Receiver
 
or Delegate
 
(as the
 
case may
 
be) has
 
been advised
 
of the
 
possibility of
such loss or damages.
 
35.15
 
Lenders’ indemnity to the Agent and others
(a)
 
Each
 
Lender
 
shall
 
(in
 
proportion
 
to
 
its
 
share
 
of
 
the
 
Total
 
Commitments
 
or,
 
if
 
the
 
Total
Commitments are
 
then zero,
 
to its share
 
of the Total
 
Commitments immediately
 
prior to their
being
 
reduced
 
to
 
zero)
 
indemnify
 
the
 
Agent,
 
the
 
Security
 
Agent,
 
every
 
Receiver
 
and
 
every
Delegate,
 
within
 
three
 
Business
 
Days
 
of
 
demand,
 
against
 
any
 
Losses
 
(including,
 
without
limitation, for negligence or any other category of liability
 
whatsoever) incurred by any of them
(otherwise than by
 
reason of the
 
relevant Agent’s,
 
Security Agent’s,
 
Receiver’s or Delegate’s
gross
 
negligence
 
or
 
wilful
 
misconduct)
 
(or,
 
in
 
the
 
circumstances
 
contemplated
 
pursuant
 
to
clause
 
(Disruption
 
to
 
payment
 
systems
 
etc,
 
notwithstanding
 
the
 
Agent’s
 
negligence,
gross
 
negligence,
 
or
 
any
 
other
 
category
 
of
 
liability
 
whatsoever
 
but
 
not
 
including
 
any
 
claim
based
 
on
 
the
 
fraud
 
of
 
the
 
Agent)
 
in
 
acting
 
as
 
Agent,
 
Security
 
Agent,
 
Receiver
 
or
 
Delegate
under,
 
or
 
exercising
 
any
 
authority
 
conferred
 
under,
 
the
 
Finance
 
Documents
 
(unless
 
the
relevant
 
Agent,
 
Security
 
Agent,
 
Receiver
 
or
 
Delegate
 
has
 
been
 
reimbursed
 
by
 
an
 
Obligor
pursuant to a Finance Document).
 
(b)
 
Subject to
 
paragraph
 
below,
 
the
 
Borrowers
 
shall immediately
 
on
 
demand
 
reimburse
 
any
Lender for any payment that Lender makes to
 
the Agent or the Security Agent or any Receiver
or Delegate pursuant to paragraph
 
above.
 
(c)
 
Paragraph
 
above
 
shall
 
not
 
apply
 
to
 
the
 
extent
 
that
 
the
 
indemnity
 
payment
 
in
 
respect
 
of
which the Lender claims reimbursement relates to a liability of the Agent or the Security Agent
to an Obligor.
 
35.16
 
Resignation of the Agent
or the Security Agent
(a)
 
The Agent or
 
the Security
 
Agent may resign
 
and appoint one
 
of its Affiliates
 
as successor
 
by
giving notice to the other Finance Parties and the Borrowers.
 
(b)
 
Alternatively the Agent or the Security Agent may
 
resign by giving 30 days’ notice to the other
Finance
 
Parties
 
and
 
the
 
Borrowers,
 
in
 
which
 
case
 
the
 
Majority
 
Lenders
 
may
 
appoint
 
a
successor Agent or Security Agent.
 
(c)
 
If the Majority Lenders have not appointed a successor Agent or
 
Security Agent in accordance
with paragraph
 
above within 20
 
days after notice
 
of resignation was
 
given, the retiring
 
Agent
or Security
 
Agent (after
 
consultation with
 
(in the
 
case of
 
the Agent)
 
the Borrowers
 
or (in
 
the
case of the Security Agent) the Agent) may appoint a
 
successor Agent or Security Agent.
 
(d)
 
If the Agent
 
or Security Agent
 
wishes to resign
 
because (acting reasonably)
 
it has concluded
that it is no
 
longer appropriate for it to
 
remain as agent or trustee and
 
the Agent or (as the case
may
 
be)
 
Security
 
Agent
 
is
 
entitled
 
to
 
appoint
 
a
 
successor
 
Agent
 
or
 
(as
 
the
 
case
 
may
 
be)
Security Agent under paragraph
 
above, the Agent or
 
(as the case may
 
be) Security Agent
may (if it
 
concludes (acting
 
reasonably) that
 
it is necessary
 
to do so
 
in order to
 
persuade the
proposed successor
 
Agent or (as
 
the case may
 
be) Security
 
Agent to become
 
a party
 
to this
Agreement
 
as
 
Agent
 
or
 
(as
 
the
 
case
 
may
 
be)
 
Security
 
Agent)
 
agree
 
with
 
the
 
proposed
successor Agent
 
or (as
 
the case
 
may be)
 
Security Agent
 
amendments to
 
this clause
 
and
any other term of
 
this Agreement dealing
 
with the rights
 
or obligations of the
 
Agent or (as the
case may be) Security Agent consistent
 
with then current market practice for
 
the appointment
and
 
protection
 
of
 
corporate
 
trustees
 
together
 
with
 
any
 
reasonable
 
amendments
 
to
 
the
 
fee
payable
 
to
 
it
 
in
 
its
 
capacity
 
as
 
Agent
 
or
 
(as
 
the
 
case
 
may
 
be)
 
Security
 
Agent
 
under
 
this
Agreement which are
 
consistent with the successor
 
Agent’s or (as
 
the case may be)
 
Security
Agent’s normal fee rates and those amendments
 
will bind the Parties.
(e)
 
The retiring
 
Agent or
 
Security Agent
 
shall make
 
available to
 
the successor
 
Agent or
 
Security
Agent such
 
documents and
 
records and
 
provide such
 
assistance as
 
the successor
 
Agent or
Security Agent may
 
reasonably request for
 
the purposes
 
of performing its
 
functions as
 
Agent
or (as the case
 
may be) Security
 
Agent under the Finance
 
Documents.
 
The Borrowers shall,
within three
 
Business Days
 
of demand,
 
reimburse the
 
retiring Agent
 
or (as
 
the case may
 
be)
Security Agent
 
for the
 
amount of
 
all costs
 
and expenses
 
(including legal
 
fees) (together
 
with
any applicable
 
VAT)
 
properly incurred
 
by it
 
in making
 
available such
 
documents and
 
records
and providing such assistance.
 
(f)
 
The Agent’s or Security Agent’s resignation
 
notice shall only take effect upon:
(i)
 
the appointment of a successor; and
(ii)
 
(in
 
the
 
case
 
of
 
the
 
Security
 
Agent)
 
the
 
transfer
 
or
 
assignment
 
of
 
all
 
the
 
Transaction
Security and the other Security Property to that successor and any appropriate filings or
registrations, any notices
 
of transfer
 
or assignment
 
and the
 
payment of
 
any fees
 
or duties
related to such transfer or assignment which the Security Agent considers necessary or
advisable have been duly completed.
 
(g)
 
Upon the appointment of a successor, the retiring Agent or Security Agent shall be discharged
from
 
any
 
further
 
obligation
 
in
 
respect
 
of
 
the
 
Finance
 
Documents
 
(other
 
than
 
its
 
obligations
under paragraph
 
of clause
(Winding up
 
of trust)
 
and paragraph
 
above) but shall
remain entitled to the benefit of clauses
((Indemnity to the Agent and the Security
 
Agent)
and
(Indemnity concerning security)
 
and
this clause
 
(and any agency or other fees for
the account of the retiring Agent
 
or Security Agent in its capacity as
 
such shall cease to accrue
from (and shall
 
be payable on)
 
that date).
 
Any successor and
 
each of the
 
other Parties
 
shall
have
 
the
 
same
 
rights
 
and
 
obligations
 
amongst
 
themselves
 
as
 
they
 
would
 
have
 
had
 
if
 
that
successor had been an original Party.
 
(h)
 
The Agent shall resign in accordance
 
with paragraph
 
above (and, to the extent applicable,
shall
 
use
 
reasonable
 
endeavours
 
to
 
appoint
 
a
 
successor
 
Agent
 
pursuant
 
to
 
paragraph
above) if on or
 
after the date which
 
is three Months before the
 
earliest FATCA Application Date
relating to any payment to the Agent under the Finance Documents,
 
either:
(i)
 
the Agent fails to
 
respond to a request
 
under clause
(FATCA
Information) and the
Borrowers or a
 
Lender reasonably believes
 
that the Agent
 
will not
 
be (or
 
will have
 
ceased
to be) a FATCA
 
Exempt Party on or after that FATCA
 
Application Date;
(ii)
 
the
 
information
 
supplied
 
by
 
the
 
Agent
 
pursuant
 
to
 
clause
 
(FATCA
 
Information)
indicates that
 
the Agent
 
will not
 
be (or will
 
have ceased
 
to be) a
 
FATCA
 
Exempt Party
on or after that FATCA
 
Application Date; or
(iii)
 
the Agent notifies the Borrowers and the Lenders that the Agent will not be (or will have
ceased to be) a FATCA
 
Exempt Party on or after that FATCA
 
Application Date,
and (in each case) the Borrowers or a Lender reasonably believes that a
 
Party will be required
to make
 
a FATCA
 
Deduction that
 
would not
 
be required
 
if the
 
Agent were
 
a FATCA
 
Exempt
Party, and the
 
Borrowers or that Lender, by
 
notice to the Agent, requires it to resign.
 
(i)
 
This
 
clause
 
shall
 
apply
 
to
 
the
 
resignation
 
of
 
the
 
Sustainability
 
Co-ordinator
 
mutatis
mutandis.
35.17
 
Replacement of the Agent
(a)
 
After consultation
 
with the
 
Borrowers, the
 
Majority Lenders
 
may,
 
by giving
 
30 days’
 
notice to
the Agent replace the Agent by appointing a successor
 
Agent.
 
(b)
 
The retiring Agent
 
shall make
 
available to the
 
successor Agent
 
such documents
 
and records
and provide such assistance as the
 
successor Agent may reasonably request for the
 
purposes
of performing its functions as Agent under the Finance Documents.
 
(c)
 
The appointment
 
of the
 
successor Agent
 
shall take
 
effect
 
on the
 
date specified
 
in the
 
notice
from the
 
Majority Lenders
 
to the retiring
 
Agent.
 
As from
 
this date, the
 
retiring Agent
 
shall be
discharged
 
from
 
any
 
further
 
obligation
 
in
 
respect
 
of
 
the
 
Finance
 
Documents
 
(other
 
than
 
its
obligations under paragraph
 
above) but shall remain entitled
 
to the benefit of clauses
((Indemnity to the Agent and the Security
 
Agent)
 
and
(Indemnity concerning security)
 
and
this clause
 
(and any agency fees for the account of the retiring Agent shall cease to accrue
from (and shall be payable on) that date).
 
(d)
 
Any successor Agent and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor
 
had been an original Party.
 
35.18
 
Replacement of the Security Agent
The Majority
 
Lenders
 
may,
 
by notice
 
to the
 
Security
 
Agent, require
 
it to
 
resign
 
in accordance
 
with
paragraph
 
of clause
(Resignation
 
of the
 
Agent or
 
the
 
Security
 
Agent)
.
 
In this
 
event, the
Security Agent shall resign in accordance with that paragraph.
35.19
 
Confidentiality
(a)
 
In acting
 
as agent
 
or trustee
 
for the
 
Finance
 
Parties, the
 
Agent or
 
(as the
 
case may
 
be) the
Security
 
Agent
 
shall
 
be
 
regarded
 
as
 
acting
 
through
 
its
 
agency,
 
trustee
 
or
 
other
 
division
 
or
department directly responsible for the management of the Finance
 
Documents which shall be
treated as a separate entity from any other of its divisions
 
or departments.
 
(b)
 
If information is
 
received by
 
another division
 
or department
 
of the Agent
 
or (as the
 
case may
be)
 
Security
 
Agent,
 
it
 
may
 
be
 
treated
 
as
 
confidential
 
to
 
that
 
division
 
or
 
department
 
and
 
the
Agent or (as the case may be) Security Agent shall not
 
be deemed to have notice of it.
 
(c)
 
Notwithstanding
 
any
 
other
 
provision
 
of
 
any
 
Finance
 
Document
 
to
 
the
 
contrary,
 
none
 
of
 
the
Agent,
 
the
 
Security
 
Agent,
 
the
 
Sustainability
 
Co-ordinator
 
nor
 
the
 
Arranger
 
is
 
obliged
 
to
disclose to any other
 
person (i) any Confidential
 
Information or (ii) any
 
other information if the
disclosure would, or
 
might in
 
its reasonable opinion,
 
constitute a breach
 
of any
 
law or
 
regulation
or a breach of a fiduciary duty.
 
35.20
 
Agent’s relationship with the Lenders
 
and Hedging Provider
(a)
 
The Agent may treat the person
 
shown in its records as Lender
 
or as the Hedging Provider
 
at
the opening of
 
business (in
 
the place of
 
the Agent’s
 
principal office
 
as notified to
 
the Finance
Parties from time
 
to time) as
 
the Lender or
 
(as the case
 
may be) as
 
the Hedging Provider
 
acting
through its Facility Office:
(i)
 
entitled to or liable for any payment due under any Finance
 
Document on that day; and
(ii)
 
entitled
 
to
 
receive
 
and
 
act
 
upon
 
any
 
notice,
 
request,
 
document
 
or
 
communication
 
or
make any decision or determination under
 
any Finance Document made or delivered on
that day,
unless it
 
has received
 
not less
 
than five
 
Business
 
Days
 
prior notice
 
from that
 
Lender
 
or the
Hedging Provider to the contrary in accordance with the
 
terms of this Agreement.
 
(b)
 
Any Lender or the Hedging Provider may
 
by notice to the Agent appoint a
 
person to receive on
its behalf all notices,
 
communications, information
 
and documents to
 
be made or
 
despatched
to that
 
Lender or
 
(as the
 
case may
 
be) the
 
Hedging Provider
 
under the
 
Finance Documents.
Such notice
 
shall contain
 
the address,
 
fax number
 
and
 
(where communication
 
by electronic
mail
 
or
 
other
 
electronic
 
means
 
is
 
permitted
 
under
 
clause
(Electronic
 
communication)
)
electronic mail address
 
and/or any other
 
information required to
 
enable the sending
 
and receipt
of information
 
by that
 
means (and,
 
in each
 
case, the
 
department or
 
officer,
 
if any,
 
for whose
attention communication is to
 
be made) and
 
be treated as
 
a notification of
 
a substitute address,
fax number, electronic mail address, department and officer (or such other information) by that
Lender
 
or,
 
as
 
the
 
case
 
may
 
be,
 
the
 
Hedging
 
Provider
 
for
 
the
 
purposes
 
of
 
clause
(Addresses)
 
and
 
clause
 
(
Electronic
 
communication
)
 
and
 
the
 
Agent
 
shall
 
be
 
entitled
 
to
treat
 
such
 
person
 
as
 
the
 
person
 
entitled
 
to
 
receive
 
all
 
such
 
notices,
 
communications,
information and
 
documents as
 
though that
 
person were
 
that Lender
 
or,
 
as the
 
case may
 
be,
the Hedging Provider.
35.21
 
Information from the Finance Parties
Each Finance Party shall supply the
 
Agent or the Security Agent with any
 
information that the Agent
or (as the case may be) the
 
Security Agent may reasonably specify
 
as being necessary or desirable
to enable the Agent
 
or (as the case
 
may be) the
 
Security Agent to
 
perform its functions
 
as Agent or
(as the case may be) Security Agent.
 
35.22
 
Credit appraisal by the Finance Parties
Without
 
affecting
 
the
 
responsibility
 
of
 
any
 
Obligor
 
for
 
information
 
supplied
 
by
 
it
 
or
 
on
 
its
 
behalf
 
in
connection with any Finance
 
Document, each other Finance
 
Party confirms to the
 
Agent, the Security
Agent, the Sustainability
 
Co-ordinator and the
 
Arranger that it
 
has been, and
 
will continue to
 
be, solely
responsible for making its own independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited
 
to:
(a)
 
the financial condition, status and nature of each Obligor
 
and other Group Member;
(b)
 
the legality,
 
validity,
 
effectiveness,
 
adequacy or
 
enforceability of
 
any Transaction
 
Document,
the
 
Transaction
 
Security,
 
the
 
Security
 
Property
 
and
 
any
 
other
 
agreement,
 
arrangement
 
or
document entered
 
into, made
 
or executed
 
in anticipation
 
of, under
 
or in
 
connection
 
with any
Transaction Document, the Transaction
 
Security or the Security Property;
(c)
 
the
 
application
 
of
 
any
 
Basel
 
Regulation
 
to
 
the
 
transactions
 
contemplated
 
by
 
the
 
Finance
Documents;
(d)
 
whether that Finance
 
Party has recourse,
 
and the nature
 
and extent of
 
that recourse, against
any Party or
 
any of its
 
respective assets
 
under or in
 
connection with
 
any Finance
 
Document,
the Transaction Security,
 
the Security Property, the transactions
 
contemplated by the Finance
Documents or any
 
other agreement, arrangement or
 
document entered into, made
 
or executed
in anticipation of, under or in connection with any
 
Finance Document, the Transaction Security
or the Security Property;
(e)
 
the adequacy, accuracy or
 
completeness of
 
any information
 
provided by
 
the Agent,
 
the Security
Agent, the Sustainability Co-ordinator,
 
the Arranger or any other
 
Party or by any other person
under or in connection with any Transaction
 
Document, the transactions contemplated
 
by any
Transaction Document or any other agreement, arrangement
 
or document entered into, made
or executed in anticipation of, under or in connection
 
with any Transaction Document; and
(f)
 
the right
 
or title
 
of any
 
person in
 
or to,
 
or the
 
value or
 
sufficiency of,
 
any part
 
of the
 
Charged
Property, the priority of any
 
of the Transaction Security or
 
the existence of
 
any Security Interest
affecting the Charged Property.
 
35.23
 
Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance
 
Documents the Agent may,
 
after giving
notice to
 
that Party,
 
deduct
 
an amount
 
not exceeding
 
that amount
 
from any
 
payment to
 
that Party
which the
 
Agent would
 
otherwise be
 
obliged to
 
make under
 
the Finance
 
Documents and
 
apply the
amount deducted
 
in or
 
towards satisfaction
 
of the
 
amount owed.
 
For the
 
purposes
 
of the
 
Finance
Documents that Party shall be regarded as having received
 
any amount so deducted.
 
35.24
 
Reliance and engagement letters
Each of
 
the Agent,
 
the Security
 
Agent,
 
the Sustainability
 
Co-ordinator
 
and the
 
Arranger may
 
enter
into any reliance letter
 
or engagement letter relating
 
to any valuations, reports,
 
opinions or letters or
advice
 
or
 
assistance
 
provided
 
by
 
lawyers,
 
accountants,
 
tax
 
advisers,
 
insurance
 
consultants,
 
ship
managers,
 
valuers,
 
surveyors
 
or
 
other
 
professional
 
advisers
 
or
 
experts
 
in
 
connection
 
with
 
the
Transaction Documents
 
or the transactions
 
contemplated in the
 
Finance Documents
 
on such terms
as it may
 
consider appropriate (including, without limitation,
 
restrictions on the lawyer’s,
 
accountant’s,
tax
 
adviser’s,
 
insurance
 
consultant’s,
 
ship
 
manager’s,
 
valuer’s,
 
surveyor’s
 
or
 
other
 
professional
adviser’s or expert’s liability and
 
the extent to which their
 
valuations, reports, opinions or
 
letters may
be relied on or disclosed).
 
35.25
 
Amounts paid in error
(a)
 
If
 
the
 
Agent
 
pays
 
an
 
amount
 
to
 
another
 
Party
 
and
 
the
 
Agent
 
notifies
 
that
 
Party
 
that
 
such
payment
 
was
 
an
 
Erroneous
 
Payment
 
then
 
the
 
Party
 
to
 
whom
 
that
 
amount
 
was
 
paid
 
by
 
the
Agent
 
(the
Recipient
 
Party
)
 
shall
 
on
 
demand
 
refund
 
the
 
same
 
to
 
the
 
Agent
 
and
 
if
 
such
Recipient
 
Party
 
is
 
not
 
an
 
Obligor,
 
together
 
with
 
interest
 
on
 
that
 
amount
 
from
 
the
 
date
 
of
payment to the date of receipt by the Agent,
 
calculated by the Agent to reflect its cost of funds.
 
(b)
 
Neither:
 
(i)
 
the obligations of any Party to the Agent; nor
(ii)
 
the remedies of the Agent,
 
(whether arising under
 
this clause
 
or otherwise) which
 
relate to an
 
Erroneous Payment
will be
 
affected by
 
any act,
 
omission, matter
 
or thing
 
which, but
 
for this
 
paragraph (b),
 
would
reduce,
 
release
 
or
 
prejudice
 
any
 
such
 
obligation
 
(including
 
without
 
limitation,
 
any
 
obligation
pursuant to
 
which an
 
Erroneous Payment
 
is made)
 
or remedy
 
(whether or
 
not known
 
by the
Agent or any other Party).
 
(c)
 
All payments to be made by a Party to the Agent (whether made pursuant to this clause
or otherwise) which relate
 
to an Erroneous Payment
 
shall be calculated and
 
be made without
(and free and clear of any deduction for) set-off or
 
counterclaim.
36
 
Trust and security matters
36.1
 
Undertaking to pay
(a)
 
Each
 
Obligor
 
who
 
is
 
a
 
Party
 
undertakes
 
with
 
the
 
Security
 
Agent
 
as
 
trustee
 
for
 
the
 
Finance
Parties that it
 
will, on demand
 
by the Security
 
Agent, pay to
 
the Security
 
Agent as trustee
 
for
the Finance Parties all money from time to time owing to the other Finance Parties (in addition
to paying
 
any money
 
owing under
 
the Finance
 
Documents
 
to the
 
Security Agent
 
for its
 
own
account),
 
and
 
discharge
 
all
 
other
 
obligations
 
from
 
time
 
to
 
time
 
incurred,
 
by
 
it
 
under
 
or
 
in
connection with the Finance Documents.
 
(b)
 
Each payment which such an Obligor makes to another Finance Party in accordance
 
with any
Finance
 
Document
 
shall,
 
to
 
the
 
extent
 
of
 
the
 
amount
 
of
 
that
 
payment,
 
satisfy
 
that
 
Obligor’s
corresponding
 
obligation
 
under
 
paragraph
 
above
 
to
 
make
 
that
 
payment
 
to
 
the
 
Security
Agent.
 
36.2
 
Parallel debt
(a)
 
Additional definitions
In this clause:
Corresponding Debt
means any amount,
 
other than any
 
Parallel Debt, which
 
an Obligor owes
to a Finance Party under or in connection with the Finance
 
Documents.
Parallel
 
Debt
means
 
any
 
amount
 
which
 
an
 
Obligor
 
owes
 
to
 
the
 
Security
 
Agent
 
under
paragraph (b)
 
below or
 
under that
 
clause as
 
incorporated by
 
reference or
 
in full
 
in any
 
other
Finance Document.
(b)
 
Each
 
Obligor
 
irrevocably
 
and
 
unconditionally
 
undertakes
 
to
 
pay
 
to
 
the
 
Security
 
Agent
 
its
Parallel
 
Debt
 
which
 
shall
 
be
 
amounts
 
equal
 
to,
 
and
 
in
 
the
 
currency
 
or
 
currencies
 
of,
 
its
Corresponding Debt.
(c)
 
The Parallel Debt of an Obligor:
(i)
 
shall become due and payable at the same time as its Corresponding
 
Debt; and
(ii)
 
is independent and separate from, and without prejudice to,
 
its Corresponding Debt.
(d)
 
For purposes of this clause
, the Security Agent:
(i)
 
is the independent and separate creditor of each Parallel Debt;
(ii)
 
acts in its own
 
name and not
 
as agent, representative
 
or trustee of the
 
Finance Parties
and its claims in respect of each Parallel Debt shall not
 
be held on trust; and
(iii)
 
shall have the independent and
 
separate right to demand payment
 
of each Parallel Debt
in its own
 
name (including,
 
without limitation,
 
through any
 
suit, execution,
 
enforcement
of
 
security,
 
recovery
 
of
 
guarantees
 
and
 
applications
 
for
 
and
 
voting
 
in
 
any
 
kind
 
of
insolvency proceeding).
(e)
 
The Parallel Debt of an Obligor shall be:
(i)
 
decreased
 
to
 
the
 
extent
 
that
 
its
 
Corresponding
 
Debt
 
has
 
been
 
irrevocably
 
and
unconditionally paid or discharged; and
(ii)
 
increased to the extent that its Corresponding Debt has increased,
and the Corresponding Debt of an Obligor shall be:
(A)
 
decreased
 
to
 
the
 
extent
 
that
 
its
 
Parallel
 
Debt
 
has
 
been
 
irrevocably
 
and
unconditionally paid or discharged; and
(B)
 
increased to the extent that its Parallel Debt has increased,
in
 
each
 
case
 
provided
 
that
 
the
 
Parallel
 
Debt
 
of
 
an
 
Obligor
 
shall
 
never
 
exceed
 
its
Corresponding Debt.
(f)
 
All amounts received or recovered by the Security Agent in connection with this clause
 
to
the extent permitted by applicable law,
 
shall be applied in accordance with clause
 
(
Order
of application
).
(g)
 
This clause
 
shall apply,
 
with any necessary modifications, to each Finance Document.
36.3
 
No responsibility to perfect Transaction
 
Security
The Security Agent shall not be liable for any failure to:
(a)
 
ascertain whether all deeds and documents which
 
should have been deposited with it
 
under or
pursuant to any of the Security Documents have been so deposited;
(b)
 
require the deposit with
 
it of any deed
 
or document certifying,
 
representing or constituting
 
the
title of any Obligor to any of the Charged Property;
(c)
 
obtain
 
any
 
licence,
 
consent
 
or
 
other
 
authority
 
for
 
the
 
execution,
 
delivery,
 
legality,
 
validity,
enforceability
 
or
 
admissibility
 
in
 
evidence
 
of
 
any
 
Finance
 
Document
 
or
 
the
 
Transaction
Security;
(d)
 
register,
 
file or
 
record or
 
otherwise protect
 
any of
 
the Transaction
 
Security (or
 
the priority
 
of
any of the Transaction Security)
 
under any law or regulation or to give
 
notice to any person of
the execution of any Finance Document or of the Transaction
 
Security;
(e)
 
take, or to
 
require any Obligor
 
to take, any
 
step to perfect
 
its title
 
to any of
 
the Charged Property
or to render
 
the Transaction Security effective or
 
to secure the
 
creation of any
 
ancillary Security
Interest under any law or regulation; or
(f)
 
require any further assurance in relation to any Security
 
Document.
 
36.4
 
Insurance by Security Agent
(a)
 
The Security Agent shall not be obliged:
(i)
 
to insure any of the Charged Property;
(ii)
 
to require any other person to maintain any insurance;
 
or
(iii)
 
to
 
verify
 
any
 
obligation
 
to
 
arrange
 
or
 
maintain
 
insurance
 
contained
 
in
 
any
 
Finance
Document,
and the Security Agent shall not be liable for any damages, costs or losses to any person as a
result of the lack of, or inadequacy of, any such insurance.
 
(b)
 
Where the Security Agent is named on any insurance policy as
 
an insured party, it shall not be
liable
 
for
 
any
 
damages,
 
costs
 
or
 
losses
 
to
 
any
 
person
 
as
 
a
 
result
 
of
 
its
 
failure
 
to
 
notify
 
the
insurers
 
of
 
any
 
material
 
fact
 
relating
 
to
 
the
 
risk
 
assumed
 
by
 
such
 
insurers
 
or
 
any
 
other
information of any kind, unless the Agent requests it to do so in writing and the Security
 
Agent
fails to do so within fourteen days after receipt of that request.
 
36.5
 
Common parties
Although the Agent and
 
the Security Agent may
 
from time to time
 
be the same entity,
 
that entity will
have entered into the Finance Documents (to which it is party) in its separate capacities
 
as agent for
the other Finance Parties and (as appropriate)
 
security agent and trustee for all of the
 
other Finance
Parties.
 
Where any Finance Document provides for an Agent
 
or Security Agent to communicate with
or provide
 
instructions to the
 
other, while they are
 
the same entity, such
 
communication or instructions
will not be necessary.
 
36.6
 
Custodians and nominees
The Security Agent may appoint and pay
 
any person to act as a custodian
 
or nominee on any terms
in relation to any asset of the trust as the Security Agent may determine, including for the purpose of
depositing with
 
a custodian
 
this Agreement
 
or any document
 
relating to
 
the trust
 
created under this
Agreement and the
 
Security Agent shall
 
not be responsible
 
for any loss,
 
liability,
 
expense, demand,
cost, claim
 
or proceedings
 
incurred by
 
reason of
 
the misconduct,
 
omission or
 
default on
 
the part
 
of
any person appointed
 
by it
 
under this
 
Agreement or be
 
bound to supervise
 
the proceedings
 
or acts
of any person.
 
36.7
 
Delegation by the Security Agent
(a)
 
Each
 
of
 
the
 
Security
 
Agent,
 
any
 
Receiver
 
and
 
any
 
Delegate
 
may,
 
at
 
any
 
time,
 
delegate
 
by
power of attorney
 
or otherwise to
 
any person for
 
any period,
 
all or any
 
right, power,
 
authority
or discretion vested in it in its capacity as such.
 
(b)
 
That
 
delegation
 
may
 
be
 
made
 
upon
 
any
 
terms
 
and
 
conditions
 
(including
 
the
 
power
 
to
 
sub-
delegate) and subject to
 
any restrictions that the
 
Security Agent, that Receiver
 
or that Delegate
(as the case may be) may,
 
in its discretion, think fit in the interests of the Finance
 
Parties.
 
(c)
 
No
 
Security
 
Agent,
 
Receiver
 
or
 
Delegate
 
shall
 
be
 
bound
 
to
 
supervise,
 
or
 
be
 
in
 
any
 
way
responsible for any damages, costs or losses incurred by reason of any misconduct,
 
omission
or default on the part of, any such delegate or sub-delegate.
 
36.8
 
Additional trustees
(a)
 
The Security Agent may
 
at any time appoint
 
(and subsequently remove)
 
any person to act as
a separate trustee or as a co-trustee jointly with it:
(i)
 
if it considers that appointment to be in the interests of the Finance
 
Parties;
(ii)
 
for the
 
purposes of
 
conforming to
 
any legal
 
requirement, restriction
 
or condition
 
which
the Security Agent deems to be relevant; or
(iii)
 
for obtaining or enforcing any judgment in any jurisdiction,
and the Security Agent shall give prior notice to
 
the Borrowers and the Finance Parties of
 
that
appointment.
 
(b)
 
Any
 
person
 
so
 
appointed
 
shall
 
have
 
the
 
rights,
 
powers,
 
authorities
 
and
 
discretions
 
(not
exceeding
 
those
 
given
 
to
 
the
 
Security
 
Agent
 
under
 
or
 
in
 
connection
 
with
 
the
 
Finance
Documents) and
 
the duties,
 
obligations and
 
responsibilities that
 
are given
 
or imposed
 
by the
instrument of appointment.
 
(c)
 
The remuneration that the
 
Security Agent may pay
 
to that person, and
 
any costs and expenses
(together with any applicable VAT) incurred by that person in performing its functions pursuant
to that
 
appointment shall,
 
for the
 
purposes of
 
this Agreement,
 
be treated
 
as costs
 
and expenses
incurred by the Security Agent.
 
(d)
 
At
 
the
 
request
 
of
 
the
 
Security
 
Agent,
 
the
 
other
 
Parties
 
shall
 
forthwith
 
execute
 
all
 
such
documents and do all such things as may be
 
required to perfect such appointment or
 
removal
and each such Party irrevocably authorises the Security Agent in its name and
 
on its behalf to
do the same.
 
(e)
 
Such a person shall accede
 
to this Agreement as
 
a Security Agent to
 
the extent necessary to
carry out their role on terms satisfactory to the Security Agent.
 
(f)
 
The Security Agent shall not be bound to supervise, or be responsible for any loss incurred by
reason of any
 
act or
 
omission of,
 
any such
 
person if
 
the Security
 
Agent shall have
 
exercised
reasonable care in the selection of such person.
 
36.9
 
Acceptance of title
The Security Agent shall be entitled
 
to accept without enquiry, and shall not be obliged to
 
investigate,
any right and
 
title that any
 
Obligor may have
 
to any of
 
the Charged Property
 
and shall not
 
be liable
for, or bound to require any
 
Obligor to remedy,
 
any defect in its right or title.
 
36.10
 
Winding up of trust
If the Security Agent, with the approval of the Agent, determines
 
that:
(a)
 
all
 
of
 
the
 
Secured
 
Obligations
 
and
 
all
 
other
 
obligations
 
secured
 
by
 
the
 
Security
 
Documents
have been fully and finally discharged; and
(b)
 
no Finance Party is
 
under any commitment, obligation or liability
 
(actual or contingent) to make
advances
 
or provide
 
other
 
financial
 
accommodation
 
to
 
any
 
Obligor
 
pursuant
 
to
 
the Finance
Documents,
then:
(i)
 
the
 
trusts
 
set
 
out
 
in
 
this
 
Agreement
 
shall
 
be
 
wound
 
up
 
and
 
the
 
Security
 
Agent
 
shall
release, without
 
recourse or
 
warranty,
 
all of
 
the Transaction
 
Security and
 
the rights
 
of
the Security Agent under each of the Security Documents; and
(ii)
 
any
 
Security
 
Agent
 
which
 
has
 
resigned
 
pursuant
 
to
 
clause
(Resignation
 
of
 
the
Agent or the Security Agent)
 
shall release, without recourse
 
or warranty,
 
all of its rights
under each Security Document.
 
36.11
 
Powers supplemental to Trustee
 
Acts
The rights, powers,
 
authorities and discretions given
 
to the Security Agent
 
under or in
 
connection with
the Finance Documents shall be supplemental
 
to the Trustee Act 1925 and the Trustee Act 2000
 
and
in addition to any which may be vested in the Security
 
Agent by law or regulation or otherwise.
 
36.12
 
Disapplication of Trustee
 
Acts
Section 1 of the Trustee Act 2000 shall
 
not apply to the duties of the Security Agent in relation to the
trusts constituted by this Agreement.
 
Where there are any inconsistencies
 
between the Trustee
 
Act
1925 or the Trustee Act 2000 and the provisions of this Agreement, the provisions of this Agreement
shall, to the extent permitted by law and regulation, prevail and, in the case
 
of any inconsistency with
the Trustee
 
Act 2000, the
 
provisions of
 
this Agreement
 
shall constitute
 
a restriction
 
or exclusion
 
for
the purposes of that Act.
 
37
 
Enforcement of Transaction Security
37.1
 
Enforcement Instructions
(a)
 
The
 
Security
 
Agent
 
may
 
refrain
 
from
 
enforcing
 
the
 
Transaction
 
Security
 
unless
 
instructed
otherwise by the Majority Lenders.
 
(b)
 
Subject to the
 
Transaction
 
Security having become
 
enforceable in accordance
 
with its terms,
the
 
Majority
 
Lenders
 
may
 
give
 
or
 
refrain
 
from
 
giving
 
instructions
 
to
 
the
 
Security
 
Agent
 
to
enforce or refrain from enforcing the Transaction
 
Security as they see fit.
 
(c)
 
The Security Agent is entitled to rely on and comply with instructions given in accordance
 
with
this clause
.
 
37.2
 
Manner of enforcement
If the Transaction Security is
 
being enforced pursuant to clause
(Enforcement Instructions)
, the
Security Agent shall
 
enforce the Transaction
 
Security in such
 
manner as the
 
Majority Lenders
 
shall
instruct or,
 
in the absence
 
of any such
 
instructions, as
 
the Security Agent
 
considers in its
 
discretion
to be appropriate.
 
37.3
 
Waiver of rights
To
 
the extent permitted
 
under applicable law
 
and subject to clause
(Enforcement Instructions)
,
clause
(Manner of
 
enforcement)
 
and clause
(Application of
 
Proceeds)
, each of
 
the Finance
Parties
 
and
 
the
 
Obligors
 
waives
 
all
 
rights
 
it
 
may
 
otherwise
 
have
 
to
 
require
 
that
 
the
 
Transaction
Security be
 
enforced in
 
any particular
 
order or
 
manner or
 
at any
 
particular time
 
or that
 
any amount
received
 
or recovered
 
from
 
any
 
person,
 
or
 
by virtue
 
of
 
the
 
enforcement
 
of
 
any
 
of
 
the
 
Transaction
Security or of
 
any other
 
security interest,
 
which is
 
capable of
 
being applied
 
in or towards
 
discharge
of any of the Secured Obligations is so applied.
 
37.4
 
Enforcement through Security Agent only
(a)
 
The other Finance Parties shall not have any independent power to enforce, or have
 
recourse
to, any
 
of the
 
Transaction Security or to
 
exercise any right,
 
power, authority or discretion
 
arising
or to
 
grant any consents
 
or releases under
 
the Security Documents
 
except through the
 
Security
Agent or as required and permitted by this clause
.
 
(b)
 
Where a Finance Party (other
 
than the Security Agent)
 
is a party to a
 
Security Document that
Finance Party shall:
(i)
 
promptly take such
 
action as the
 
Security Agent may reasonably
 
require (acting on
 
the
instructions of the
 
Agent) to enforce,
 
or have
 
recourse to, any
 
of the
 
Transaction Security
constituted
 
by
 
such
 
Security
 
Document
 
or,
 
for
 
such
 
purposes,
 
to
 
exercise
 
any
 
right,
power,
 
authority or
 
discretion arising
 
or to
 
grant any
 
consents or
 
releases under
 
such
Security Document
 
or (subject
 
to clause
 
(
Releases
))
 
to release,
 
reassign
 
and/or
discharge
 
any such
 
Transaction
 
Security
 
or any
 
guarantee
 
or other
 
obligations
 
under
any such Security Document; and
(ii)
 
not take any such action except as
 
so required or (in the case of
 
a release) for a release
which is expressly permitted or required by the Finance
 
Documents.
(c)
 
Each Finance
 
Party (other
 
than the
 
Security Agent)
 
shall, promptly
 
upon being
 
requested by
the Security Agent (acting on the instructions of the Agent) to
 
do so, grant a power of attorney
or other
 
sufficient
 
authority
 
to the
 
Security Agent
 
to enable
 
the Security
 
Agent or
 
such legal
advisers
 
to
 
enforce
 
or
 
have
 
recourse
 
in
 
the
 
name
 
of
 
such
 
Finance
 
Party
 
to
 
the
 
relevant
Transaction
 
Security
 
constituted
 
by
 
such
 
Security
 
Document
 
or
 
to
 
exercise
 
any
 
such
 
right,
power,
 
authority
 
or
 
discretion
 
or
 
to
 
grant
 
any
 
such
 
consent
 
or
 
release
 
under
 
such
 
Security
Document or to release, reassign and/or discharge any such Transaction Security on behalf of
such Finance Party.
38
 
Application of proceeds
38.1
 
Order of application
All amounts from
 
time to time
 
received or
 
recovered by
 
the Security
 
Agent pursuant
 
to the terms
 
of
any Finance
 
Document or
 
in connection
 
with the realisation
 
or enforcement
 
of all
 
or any part
 
of the
Transaction Security (for
 
the purposes of
 
this clause
, the
Recoveries
) shall
 
be held
 
by the
 
Security
Agent on trust to apply them at any time as the Security Agent
 
(in its discretion) sees fit, to the extent
permitted by applicable law (and subject
 
to the provisions of this clause
), in the following order of
priority:
(a)
 
in
 
discharging
 
any
 
sums
 
owing
 
to
 
the
 
Security
 
Agent
 
(other
 
than
 
pursuant
 
to
 
clause
(Undertaking to pay)
 
or clause
(Parallel debt)
), any Receiver or any Delegate;
(b)
 
in discharging
 
all costs
 
and expenses
 
incurred by
 
any Finance
 
Party in
 
connection with
 
any
realisation or
 
enforcement of
 
the Transaction
 
Security taken
 
in accordance
 
with the
 
terms of
this Agreement;
(c)
 
in payment
 
or distribution
 
to the
 
Agent on
 
its own
 
behalf and
 
on behalf
 
of the
 
other Finance
Parties for application in accordance with clause
(Partial payments)
;
(d)
 
if
 
none
 
of
 
the
 
Obligors
 
is
 
under
 
any
 
further
 
actual
 
or
 
contingent
 
liability
 
under
 
any
 
Finance
Document, in payment
 
or distribution
 
to any person
 
to whom the
 
Security Agent
 
is obliged to
pay or distribute in priority to any Obligor; and
(e)
 
the balance, if any,
 
in payment or distribution to the relevant Obligor.
 
38.2
 
Security
 
proceeds realised by other Finance Parties
Where a
 
Finance Party
 
(other than
 
the Security
 
Agent) is
 
a party
 
to a
 
Security Document
 
and that
Finance Party receives or recovers any amounts
 
pursuant to the terms of that Security Document
 
or
in connection with the realisation
 
or enforcement of all
 
or any part of the
 
Transaction Security
 
which
is the subject of that Security
 
Document then, subject to the
 
terms of that Security Document
 
and to
the extent
 
permitted by
 
applicable
 
law,
 
such Finance
 
Party shall
 
account to
 
the
 
Security Agent
 
for
those
 
amounts
 
and
 
the
 
Security
 
Agent
 
shall
 
apply
 
them
 
in
 
accordance
 
with
 
clause
(Order
 
of
application)
 
as
 
if
 
they
 
were
 
Recoveries
 
for
 
the
 
purposes
 
of
 
such
 
clause
 
or
 
(if
 
so
 
directed
 
by
 
the
Security Agent shall apply those amounts in accordance with
 
clause
(Order of application)
.
38.3
 
Investment of cash proceeds
Prior to the
 
application of
 
any Recoveries
 
in accordance with
 
clause
(Order of Application)
 
the
Security Agent may,
 
in its discretion, hold:
(a)
 
all or part of any Recoveries which are in the form of cash;
 
and
(b)
 
any cash which
 
is generated by
 
holding, managing, exploiting, collecting,
 
realising or disposing
of any proceeds of the Security Property which are not in the form
 
of cash,
in one or more
 
interest bearing suspense
 
or impersonal accounts
 
in the name of
 
the Security Agent
with such financial institution (including itself) and for so long as the Security Agent shall think fit (the
interest
 
being
 
credited
 
to
 
the
 
relevant
 
account)
 
pending
 
the
 
application
 
from
 
time
 
to
 
time
 
of
 
those
moneys in the Security Agent’s discretion in accordance
 
with the provisions of this clause
.
 
38.4
 
Currency conversion
(a)
 
For the purpose
 
of, or
 
pending the
 
discharge of,
 
any of
 
the Secured
 
Obligations the
 
Security
Agent may:
(i)
 
convert any moneys
 
received or recovered
 
by the Security
 
Agent from one
 
currency to
another; and
(ii)
 
notionally convert the
 
valuation provided
 
in any opinion
 
or valuation from
 
one currency
to another,
 
in
 
each
 
case
 
at
 
the
 
Security
 
Agent’s
 
spot
 
rate
 
of
 
exchange
 
for
 
the
 
purchase
 
of
 
that
 
other
currency
 
with
 
the
 
currency
 
in
 
which
 
the
 
relevant
 
moneys
 
are
 
received
 
or
 
recovered
 
or
 
the
valuation is
 
provided
 
in the
 
London foreign
 
exchange
 
market at
 
or about
 
11:00
 
am (London
time) on a particular day.
 
(b)
 
The obligations of any Obligor to pay in the due currency
 
shall only be satisfied:
(i)
 
in the
 
case of
 
paragraph
 
above, to
 
the extent
 
of the
 
amount of
 
the due
 
currency
purchased after deducting the costs of conversion; and
(ii)
 
in the
 
case of
 
paragraph
 
above, to
 
the extent
 
of the
 
amount of
 
the due
 
currency
which results from the notional conversion referred to in
 
that paragraph.
 
38.5
 
Permitted Deductions
The
 
Security
 
Agent
 
shall
 
be
 
entitled,
 
in
 
its
 
discretion,
 
(a)
 
to
 
set
 
aside
 
by
 
way
 
of
 
reserve
 
amounts
required to meet and (b) to make and pay,
 
any deductions and withholdings (on account of Taxes
 
or
otherwise) which
 
it is
 
or may
 
be required
 
by any
 
law or
 
regulation to
 
make from
 
any distribution
 
or
payment made by it under this Agreement, and to pay all Taxes
 
which may be assessed against it in
respect of
 
any of
 
the Charged
 
Property,
 
or as
 
a consequence
 
of performing
 
its duties
 
or exercising
its rights, powers, authorities and discretions, or by virtue of its capacity as Security Agent under any
of the Finance Documents or
 
otherwise (other than in
 
connection with its remuneration for
 
performing
its duties under this Agreement).
 
38.6
 
Good discharge
(a)
 
Any distribution or
 
payment to be made
 
in respect of the
 
Secured Obligations by
 
the Security
Agent may be made to the Agent on behalf of the Finance
 
Parties.
 
(b)
 
Any
 
distribution
 
or
 
payment
 
made
 
as
 
described
 
in
 
paragraph
 
(a)
 
above
 
shall
 
be
 
a
 
good
discharge, to the
 
extent of that
 
payment or distribution,
 
by the Security
 
Agent to the
 
extent of
that payment.
 
(c)
 
The Security Agent is under no
 
obligation to make the payments to the
 
Agent under paragraph
 
above in the same currency as that in which the Secured Obligations owing to the relevant
Finance Party are denominated pursuant to the relevant Finance
 
Document.
 
38.7
 
Calculation of amounts
For
 
the
 
purpose
 
of
 
calculating
 
any
 
person’s
 
share
 
of
 
any amount
 
payable
 
to
 
or
 
by it,
 
the
 
Security
Agent shall be entitled to:
(a)
 
notionally convert the Secured
 
Obligations owed to any
 
person into a common
 
base currency
(decided
 
in its
 
discretion
 
by the
 
Security
 
Agent),
 
that
 
notional conversion
 
to be
 
made at
 
the
spot rate at
 
which the Security
 
Agent is able
 
to purchase
 
the notional
 
base currency
 
with the
actual
 
currency
 
of
 
the
 
Secured
 
Obligations
 
owed
 
to
 
that
 
person
 
at
 
the
 
time
 
at
 
which
 
that
calculation is to be made; and
(b)
 
assume that all amounts received or recovered as a result of the enforcement or realisation of
the Security Property
 
are applied in
 
discharge of
 
the Secured Obligations
 
in accordance with
the terms of the Finance Documents under which those
 
Secured Obligations have arisen.
 
38.8
 
Release to facilitate enforcement and realisation
(a)
 
Each
 
Finance
 
Party
 
acknowledges
 
that,
 
for
 
the
 
purpose
 
of
 
any
 
enforcement
 
action
 
by
 
the
Security Agent
 
or a
 
Receiver
 
and/or maximising
 
or facilitating
 
the realisation
 
of the
 
Charged
Property,
 
it
 
may
 
be
 
desirable
 
that
 
certain
 
rights
 
or
 
claims
 
against
 
an
 
Obligor
 
and/or
 
under
certain of the Transaction Security,
 
be released.
 
(b)
 
Each
 
other
 
Finance
 
Party
 
hereby
 
irrevocably
 
authorises
 
the
 
Security
 
Agent
 
(acting
 
on
 
the
instructions
 
of the
 
Agent)
 
to
 
grant
 
any such
 
releases
 
to the
 
extent
 
necessary
 
to effect
 
such
enforcement action
 
and/or realisation
 
including, to
 
the extent
 
necessary for
 
such purpose,
 
to
execute release documents in the name of and on behalf
 
of the other Finance Parties.
 
38.9
 
Dealings with Security Agent
Each Finance Party shall deal with the Security Agent exclusively
 
through the Agent.
 
38.10
 
Agent’s dealings with Hedging Provider
The Agent
 
shall not
 
be under
 
any obligation
 
to act
 
as agent
 
or otherwise
 
on behalf
 
of the
 
Hedging
Provider except as expressly provided in, and for the purposes
 
of, this Agreement.
38.11
 
Disclosure between Finance Parties and Security
Agent
Notwithstanding any
 
agreement to
 
the contrary,
 
each of
 
the Obligors
 
consents, until
 
the end
 
of the
Facility Period,
 
to the disclosure
 
by any
 
Finance Party to
 
each other (whether
 
or not through
 
the Agent
or the Security Agent) of such information concerning the Obligors as any Finance Party shall see
 
fit.
 
38.12
 
Notification of prescribed events
(a)
 
If an Event of Default
 
or Default either occurs or ceases
 
to be continuing, the Agent
 
shall, upon
becoming aware of that occurrence or cessation, notify
 
the Security Agent.
 
(b)
 
If the Security
 
Agent enforces, or
 
takes formal steps to
 
enforce, any of
 
the Transaction Security
it shall notify each other Finance Party of that action.
 
(c)
 
If
 
any
 
Finance
 
Party
 
exercises
 
any
 
right
 
it
 
may
 
have
 
to
 
enforce,
 
or
 
to
 
take
 
formal
 
steps
 
to
enforce, any
 
of the
 
Transaction Security it shall
 
notify the
 
Security Agent
 
and the
 
Security Agent
shall, upon receiving that notification, notify each other
 
Finance Party of that action.
(d)
 
If a
 
Borrower defaults
 
on any
 
payment due
 
under a
 
Hedging Contract,
 
the Hedging
 
Provider
shall, upon
 
becoming aware
 
of that
 
default, notify
 
the Security
 
Agent and
 
the Security
 
Agent
shall, upon receiving that notification, notify the Agent.
(e)
 
If the Hedging Provider terminates or closes-out,
 
in whole or in part, any Hedging Transaction
under
 
any
 
Hedging
 
Contract
 
it
 
shall
 
notify
 
the
 
Security
 
Agent
 
and
 
the
 
Security
 
Agent
 
shall,
upon receiving that notification, notify the Agent.
39
 
Conduct of business by the Finance Parties
39.1
 
Finance Parties tax affairs
No provision of this Agreement will:
(a)
 
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever
manner it thinks fit;
(b)
 
oblige
 
any
 
Finance
 
Party
 
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 any Finance Party to disclose any
 
information relating to its affairs
 
(tax or otherwise) or
any computations in respect of Tax.
 
40
 
Sharing among the Finance Parties
40.1
 
Payments to Finance Parties
If a Finance Party
 
(a
Recovering Finance Party
) receives or recovers
 
any amount from an
 
Obligor
other than in accordance
 
with clause
(Payment mechanics)
 
(a
Recovered Amount
) and applies
that amount to a payment due under the Finance Documents
 
then:
(a)
 
the Recovering Finance Party shall, within three Business Days, notify details
 
of the receipt or
recovery, to the Agent;
(b)
 
the
 
Agent
 
shall
 
determine
 
whether
 
the
 
receipt
 
or
 
recovery
 
is
 
in
 
excess
 
of
 
the
 
amount
 
the
Recovering Finance Party would have been paid had the receipt or recovery
 
been received or
made by the
 
Agent and distributed
 
in accordance with
 
clause
(Payment mechanics)
, without
taking
 
account
 
of
 
any
 
Tax
 
which
 
would
 
be
 
imposed
 
on
 
the
 
Agent
 
in
 
relation
 
to
 
the
 
receipt,
recovery or distribution; and
(c)
 
the Recovering Finance Party
 
shall, within three Business
 
Days of demand by the
 
Agent, pay
to the
 
Agent
 
an
 
amount
 
(the
Sharing
 
Payment
) equal
 
to
 
such
 
receipt
 
or recovery
 
less
 
any
amount which the
 
Agent determines
 
may be retained
 
by the Recovering
 
Finance Party
 
as its
share of any payment to be made, in accordance with clause
(Partial payments)
.
 
40.2
 
Redistribution of payments
The Agent shall
 
treat the Sharing Payment
 
as if it
 
had been paid by
 
the relevant Obligor and
 
distribute
it
 
between
 
the
 
Finance
 
Parties
 
(other
 
than
 
the
 
Recovering
 
Finance
 
Party)
 
(the
Sharing
 
Finance
Parties
) in accordance with clause
(Partial payments)
 
towards the obligations of that Obligor to
the Sharing Finance Parties.
 
40.3
 
Recovering Finance Party’s rights
On a distribution by the Agent under clause
(Redistribution of payments)
 
of a payment received
by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering
Finance Party, an amount of the Recovered Amount
 
equal to the Sharing Payment will be treated as
not having been paid by that Obligor.
 
40.4
 
Reversal of redistribution
If any
 
part of
 
the Sharing
 
Payment received
 
or recovered
 
by a
 
Recovering Finance
 
Party becomes
repayable and is repaid by that Recovering Finance Party,
 
then:
(a)
 
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account
of that
 
Recovering Finance
 
Party an
 
amount equal
 
to the
 
appropriate part
 
of its
 
share of
 
the
Sharing
 
Payment
 
(together
 
with
 
an
 
amount
 
as
 
is
 
necessary
 
to
 
reimburse
 
that
 
Recovering
Finance Party for its proportion of any interest on the Sharing Payment
 
which that Recovering
Finance Party is required to pay) (the
Redistributed Amount
); and
(b)
 
as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to
the relevant Redistributed Amount will be treated as not having
 
been paid by that Obligor.
 
40.5
 
Exceptions
(a)
 
This clause
 
shall not apply to the extent that the Recovering Finance Party would not, after
making any
 
payment pursuant
 
to this
 
clause, have
 
a valid
 
and enforceable
 
claim against
 
the
relevant Obligor.
 
(b)
 
A Recovering Finance
 
Party is not obliged
 
to share with
 
any other Finance
 
Party any amount
which the
 
Recovering Finance
 
Party has
 
received or
 
recovered as
 
a result
 
of taking
 
legal or
arbitration proceedings, if:
(i)
 
it notified that other Finance Party of the legal or arbitration proceedings;
(ii)
 
the
 
taking
 
legal
 
or
 
arbitration
 
proceedings
 
was
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
this
Agreement; and
(iii)
 
that other
 
Finance
 
Party had
 
an
 
opportunity
 
to participate
 
in those
 
legal
 
or arbitration
proceedings but did not do so as soon as reasonably practicable having received notice
and did not take separate legal or arbitration proceedings.
Section 10 -
 
Administration
41
 
Payment mechanics
41.1
 
Payments to the Agent
(a)
 
On each date on which an Obligor
 
or a Lender is required to make a
 
payment under a Finance
Document
 
(other
 
than
 
a
 
Hedging
 
Contract),
 
that
 
Obligor
 
or
 
Lender
 
shall
 
make
 
the
 
same
available to the Agent (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 Agent 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 Agent)
 
and with
 
such bank
 
as the
 
Agent, in
 
each case,
specifies.
 
41.2
 
Distributions by the Agent
Each payment received
 
by the Agent
 
under the Finance
 
Documents for another
 
Party shall, subject
to
 
clause
(Distributions
 
to
 
an
 
Obligor)
 
and
 
clause
(Clawback
 
and
 
pre-funding)
be
 
made
available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement
 
(in the case
 
of a Lender, for the
 
account of its
 
Facility Office), to such
account as that Party may notify to the Agent by not less than five Business Days’ notice with a bank
specified by
 
that Party
 
in the principal
 
financial centre
 
of the country
 
of that currency
 
(or,
 
in relation
to euro,
 
in the
 
principal financial
 
centre of
 
a Participating
 
Member State
 
or London,
 
as specified
 
by
that Party).
 
41.3
 
Distributions to an Obligor
The Agent may (with the
 
consent of the Obligor or
 
in accordance with clause
(Set-off)
) apply any
amount received
 
by it
 
for that
 
Obligor
 
in or
 
towards payment
 
(on the
 
date and
 
in the
 
currency
 
and
funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards
purchase of any amount of any currency to be so applied.
 
41.4
 
Clawback and pre-funding
(a)
 
Where a sum
 
is to be
 
paid to
 
the Agent under
 
the Finance Documents
 
for another
 
Party,
 
the
Agent is not obliged to pay that sum to that
 
other Party (or to enter into or perform
 
any related
exchange
 
contract)
 
until
 
it
 
has
 
been
 
able
 
to
 
establish
 
to
 
its
 
satisfaction
 
that
 
it
 
has
 
actually
received that sum.
 
(b)
 
Unless paragraph
 
below applies, if
 
the Agent pays
 
an amount to
 
another Party and it
 
proves
to be
 
the case
 
that the
 
Agent had
 
not actually
 
received that
 
amount, then
 
the Party
 
to whom
that amount (or the proceeds of
 
any related exchange contract) was paid
 
by the Agent shall on
demand refund
 
the same
 
to the
 
Agent together
 
with interest
 
on that
 
amount from
 
the date
 
of
payment to the date of receipt by the Agent,
 
calculated by the Agent to reflect its cost of funds.
 
(c)
 
If the Agent is
 
willing to make available amounts for
 
the account of a Borrower
 
before receiving
funds from the Lenders then if
 
and to the extent that the
 
Agent does so but it proves to
 
be the
case that
 
it does
 
not then
 
receive funds
 
from a
 
Lender in
 
respect of
 
a sum
 
which it
 
paid to
 
a
Borrower:
(i)
 
the Agent shall notify the Borrowers of that Lender’s identity and the Borrowers shall on
demand refund it to the Agent; and
(ii)
 
the Lender
 
by whom
 
those
 
funds should
 
have been
 
made available
 
or,
 
if that
 
Lender
fails to do so, the Borrowers, shall on demand pay to the Agent the amount (as certified
by the Agent) which will indemnify the Agent against any funding cost incurred by it as
 
a
result of paying out that sum before receiving those funds
 
from that Lender.
 
41.5
 
Partial payments
(a)
 
If the Agent receives a payment for application against amounts due in respect of any Finance
Documents that is insufficient to
 
discharge all the amounts then
 
due and payable by
 
an Obligor
under those Finance
 
Documents, the
 
Agent shall apply
 
that payment towards
 
the obligations
of that Obligor under the Finance Documents in the following
 
order:
(i)
first
,
 
in
 
or
 
towards
 
payment
 
pro
 
rata
 
of
 
any
 
unpaid
 
amount
 
owing
 
to
 
the
 
Agent,
 
the
Security Agent or the Arranger for their own account under those
 
Finance Documents;
(ii)
secondly
, in
 
or towards
 
payment to
 
the Lenders
 
pro rata
 
of any
 
amount owing
 
to the
Lenders under clause
 
(
Lenders’ indemnity to the Agent and others
); and
(iii)
thirdly
, in or towards payment to the Lenders pro rata in the following
 
order:
(A)
 
first, any
 
accrued interest,
 
fee or
 
commission due
 
to them
 
but unpaid
 
under the
Finance Documents;
(B)
 
secondly, any principal
 
due to them but unpaid under this Agreement; and
(C)
 
thirdly, any other sum
 
due to them but unpaid under the Finance Documents);
 
(iv)
fourthly
, in
 
or towards
 
payment to
 
the Hedging
 
Provider of
 
any net
 
amounts due
 
to it
but unpaid under the Hedging Contracts; and
(v)
fifthly
, in
 
or towards
 
payment pro
 
rata to
 
the Finance
 
Parties of
 
any other
 
sum due
 
to
them but unpaid under the Finance Documents.
 
(b)
 
The Agent shall, if so directed by the Majority Lenders vary
 
the order set out in paragraphs
to
 
of paragraph
 
above.
 
(c)
 
Paragraphs
 
and
 
above will override any appropriation made by an Obligor.
 
41.6
 
No set-off by Obligors
All payments
 
to
 
be made
 
by an
 
Obligor
 
under the
 
Finance
 
Documents
 
shall be
 
calculated
 
and
 
be
made without (and free and clear of any deduction for)
 
set-off or counterclaim.
 
41.7
 
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 Unpaid
 
Sum under
 
this
Agreement interest is
 
payable on the
 
principal or Unpaid
 
Sum at
 
the rate
 
payable on the
 
original
due date.
 
41.8
 
Currency of account
(a)
 
Subject to
 
paragraphs
 
and
 
below,
 
dollars is
 
the currency
 
of account
 
and payment
 
for
any sum due from an Obligor under any Finance Document.
 
(b)
 
A repayment of all or part of the
 
Loan or an Unpaid Sum and each payment of interest shall
 
be
made in dollars on its due date.
 
(c)
 
Each payment in respect of the
 
amount of any costs, expenses
 
or Taxes
 
or other losses shall
be
 
made
 
in
 
dollars
 
and,
 
if
 
they
 
were
 
incurred
 
in
 
a
 
currency
 
other
 
than
 
dollars,
 
the
 
amount
payable under the Finance
 
Documents shall be the
 
equivalent in dollars of
 
the relevant amount
in such other currency on the date on which it was incurred.
 
(d)
 
All moneys received or
 
held by the Security
 
Agent or by
 
a Receiver under a
 
Security Document
in a
 
currency other
 
than dollars
 
may be
 
sold for
 
dollars and
 
the Obligor
 
which executed
 
that
Security Document
 
shall
 
indemnify
 
the
 
Security
 
Agent
 
against the
 
full cost
 
in relation
 
to
 
the
sale.
 
Neither
 
the
 
Security
 
Agent
 
nor
 
such
 
Receiver
 
will
 
have
 
any
 
liability
 
to
 
that
 
Obligor
 
in
respect of any loss resulting from any fluctuation in exchange
 
rates after the sale.
 
41.9
 
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 Agent (after consultation
with 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 Agent (acting reasonably).
 
(b)
 
If a
 
change in
 
any currency
 
of a
 
country occurs,
 
this Agreement
 
will, to
 
the extent
 
the Agent
(acting
 
reasonably
 
and
 
after
 
consultation
 
with
 
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.
 
41.10
 
Disruption to payment systems etc.
 
If either the Agent
 
determines (in its discretion)
 
that a Disruption Event
 
has occurred or the
 
Agent is
notified by the Borrowers that a Disruption Event has occurred:
(a)
 
the Agent
 
may,
 
and shall
 
if requested
 
to do
 
so by
 
the Borrowers,
 
consult with
 
the Borrowers
with a view to agreeing with
 
the Borrowers such changes to
 
the operation or administration of
the Facility as the Agent may deem necessary in the circumstances;
(b)
 
the
 
Agent
 
shall
 
not
 
be
 
obliged
 
to
 
consult
 
with
 
the
 
Borrowers
 
in
 
relation
 
to
 
any
 
changes
mentioned
 
in
 
paragraph
 
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)
 
the
 
Agent
 
may
 
consult
 
with
 
the
 
Finance
 
Parties
 
in
 
relation
 
to
 
any
 
changes
 
mentioned
 
in
paragraph
 
above but shall not be obliged to do so if, in
 
its opinion, it is not practicable to do
so in the circumstances;
(d)
 
any such changes
 
agreed upon by
 
the Agent and
 
the Borrowers shall
 
(whether or not
 
it is
 
finally
determined
 
that
 
a
 
Disruption
 
Event
 
has
 
occurred)
 
be
 
binding
 
upon
 
the
 
Parties
 
as
 
an
amendment
 
to
 
(or,
 
as
 
the
 
case
 
may
 
be,
 
waiver
 
of)
 
the
 
terms
 
of
 
the
 
Finance
 
Documents
notwithstanding the provisions of clause
(Amendments and waivers)
;
(e)
 
the Agent 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
 
Agent)
 
arising
 
as
 
a
 
result
 
of
 
its
 
taking,
 
or
 
failing
 
to
 
take,
 
any
 
actions
 
pursuant
 
to
 
or
 
in
connection with this clause
; and
(f)
 
the
 
Agent
 
shall
 
notify
 
the
 
Finance
 
Parties
 
of
 
all
 
changes
 
agreed
 
pursuant
 
to
 
paragraph
above.
 
42
 
Set-off
A
 
Finance
 
Party
 
may
 
set
 
off
 
any
 
matured
 
obligation
 
due
 
from
 
an
 
Obligor
 
under
 
the
 
Finance
Documents (to
 
the extent
 
beneficially owned
 
by that
 
Finance Party)
 
against any
 
matured obligation
owed by
 
that Finance
 
Party to
 
that Obligor,
 
regardless
 
of the
 
place of
 
payment, booking
 
branch or
currency
 
of
 
either
 
obligation.
 
If
 
the
 
obligations
 
are
 
in
 
different
 
currencies,
 
the
 
Finance
 
Party
 
may
convert either obligation at a market rate of exchange in its usual course of business
 
for the purpose
of the set-off.
 
43
 
Notices
43.1
 
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.
 
43.2
 
Addresses
The address,
 
e-mail and
 
fax number
 
(and the
 
department or
 
officer,
 
if any,
 
for whose
 
attention the
communication is to be made) of each Obligor or Finance Party
 
for any communication or document
to be made or delivered under or in connection with the Finance
 
Documents is:
(a)
 
in
 
the
 
case
 
of
 
any
 
Obligor
 
who
 
is
 
a
 
Party,
 
that
 
identified
 
with
 
its
 
name
 
in
The
original parties
);
(b)
 
in
 
the
 
case
 
of
 
any
 
Obligor
 
which
 
is
 
not
 
a
 
Party,
 
that
 
identified
 
in
 
any
 
Finance
 
Document
 
to
which it is a party;
(c)
 
in the case
 
of the Security
 
Agent, the Agent
 
and any other
 
original Finance Party, that identified
with its name in
 
(
The original parties
); and
(d)
 
in the
 
case of
 
each Lender
 
or other
 
Finance Party,
 
that notified
 
in writing
 
to the
 
Agent on
 
or
prior to the date on which it becomes a Party in the relevant
 
capacity,
or, in
 
each case, any
 
substitute address,
 
e-mail, fax number,
 
or department or
 
officer as
 
an Obligor
or Finance
 
Party may
 
notify to
 
the Agent
 
(or the
 
Agent may
 
notify to
 
the other
 
Finance Parties
 
and
the Obligors who are Parties, if a change is made by the Agent) by not less than five Business Days’
notice.
 
43.3
 
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
(Addresses)
, if addressed to that department or officer.
 
(b)
 
Any communication
 
or document
 
to be
 
made or
 
delivered to
 
the Agent
 
or the
 
Security Agent
will be effective only
 
when actually received by
 
the Agent or the
 
Security Agent and then
 
only
if it
 
is expressly
 
marked for
 
the attention
 
of the
 
department or
 
officer identified
 
in
(
The original parties
) (or any
 
substitute department or
 
officer as the
 
Agent or the
 
Security Agent
shall specify for this purpose).
 
(c)
 
All notices from or to an Obligor shall be sent through
 
the Agent.
 
(d)
 
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 Obligors.
 
(e)
 
Any communication or document which becomes effective, in accordance
 
with paragraphs
to
 
above, after 5:00
 
p.m. in the
 
place of receipt
 
shall be deemed
 
only to become
 
effective
on the following day.
 
43.4
 
Notification of address and fax number
Promptly upon changing its’ address or fax number,
 
the Agent shall notify the other Parties.
 
43.5
 
Electronic communication
(a)
 
Any
 
communication
 
to
 
be
 
made
 
between
 
any
 
two
 
Parties
 
under
 
or
 
in
 
connection
 
with
 
the
Finance
 
Documents
 
may
 
be
 
made
 
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 as specified
 
in paragraph
 
above to be
 
made between
an Obligor
 
and
 
a Finance
 
Party 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
 
form of
communication
(c)
 
Any such
 
electronic
 
communication
 
as specified
 
in paragraph
 
above made
 
between any
two Parties will
 
be effective
 
only when actually
 
received (or
 
made available) in
 
readable form
and, in the case of any electronic communication made by a Party to the Agent or the Security
Agent, only if it is addressed in such a
 
manner as the Agent or the Security Agent shall specify
for this purpose.
 
(d)
 
Any
 
electronic
 
communication
 
which
 
becomes
 
effective,
 
in
 
accordance
 
with
 
paragraph
above, after 5:00 p. m.
 
in the place in which
 
the Party to whom the relevant
 
communication is
sent or made available has its address for the purpose of this
 
Agreement or any other Finance
Document 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
 
shall
 
be
construed to include that communication
 
being made available in
 
accordance with this clause
.
 
43.6
 
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
 
Agent,
 
accompanied
 
by
 
a
 
certified
 
English
translation and, in this case, the English translation will prevail unless the document is a
constitutional, statutory or other official document.
 
44
 
Calculations and certificates
44.1
 
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
 
a
 
Finance
 
Party
 
are
prima
 
facie
 
evidence
 
of
 
the
matters to which they relate.
 
44.2
 
Certificates and determinations
Any
 
certification
 
or
 
determination
 
by
 
a
 
Finance
 
Party
 
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.
 
44.3
 
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.
 
45
 
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 nor the legality,
 
validity or enforceability of
 
such provision under the
 
law of any
other jurisdiction will in any way be affected or
 
impaired.
 
46
 
Remedies and waivers
No
 
failure
 
to
 
exercise,
 
nor
 
any
 
delay
 
in
 
exercising,
 
on
 
the
 
part
 
of
 
any
 
Finance
 
Party,
 
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 any Finance Party 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.
 
47
 
Amendments and waivers
47.1
 
Required consents
(a)
 
Subject to
 
clause
(All Lender
 
matters)
 
and clause
(Other exceptions)
, any
 
term of
the
 
Finance
 
Documents
 
may
 
be
 
amended
 
or
 
waived
 
only
 
with
 
the
 
consent
 
of
 
the
 
Majority
Lenders
 
and
 
the
 
Borrowers
 
and
 
any
 
such
 
amendment
 
or
 
waiver
 
will
 
be
 
binding
 
on
 
all
 
the
Finance Parties and other Obligors.
 
(b)
 
The Agent
 
may (or, in
 
the case
 
of the
 
Security Documents, instruct
 
the Security Agent
 
to) effect,
on behalf of any Finance Party,
 
any amendment or waiver permitted by this clause
.
 
(c)
 
Without prejudice
 
to the generality
 
of paragraphs
,
 
and
 
of clause
(Rights and
discretions of the Agent)
, the Agent may engage, pay for and rely
 
on the services of lawyers in
determining the
 
consent
 
level
 
required
 
for and
 
effecting
 
any amendment,
 
waiver
 
or consent
under this Agreement.
 
(d)
 
Each Obligor
 
agrees to
 
any such
 
amendment or
 
waiver permitted
 
by this
 
clause
 
which is
agreed to by the Borrowers.
 
This includes any amendment or waiver which would, but for this
paragraph
, require the consent of the Guarantor.
47.2
 
All Lender matters
Subject to clause
Changes to Reference
 
Rates
), an amendment,
 
waiver or discharge
 
or release
or a consent
 
of, or in
 
relation to, any
 
term of any
 
Finance Document that
 
has the effect
 
of changing
or which relates to:
(a)
 
the definition of “Majority Lenders” in clause
 
(
Definitions
);
(b)
 
the definition of “Last Availability Date” in clause
(Definitions)
;
(c)
 
the definition of “Margin Reset Date” in clause
 
(
Definitions
);
(d)
 
an extension to the date of payment of any amount under the
 
Finance Documents;
(e)
 
a
 
reduction
 
in
 
the
 
Margin
 
(including
 
any
 
New
 
Margin
 
following
 
a
 
Margin
 
Reset
 
Date)
 
or
 
a
reduction in
 
the amount
 
of any
 
payment of
 
principal, interest,
 
fees or
 
commission payable
 
or
the rate at which they are calculated;
(f)
 
an increase in any Commitment or the Total
 
Commitments;
(g)
 
an extension of any period within which the Facility is
 
available for Utilisation;
(h)
 
any requirement that a
 
cancellation of Commitments reduces the Commitments of
 
the Lenders
rateably;
(i)
 
a change to the Borrowers or any other Obligor;
(j)
 
clause
(Change
 
of
 
control)
 
and
 
the
 
definition
 
of
 
“Change
 
of
 
Control”
 
in
 
clause
(Definitions)
;
(k)
 
any provision which expressly requires the consent or
 
approval of all the Lenders;
(l)
 
clause
(Sharing among the Finance Parties)
;
(m)
 
clause
(Finance
 
Parties’
 
rights
 
and
 
obligations)
,
 
clause
 
(
Delivery
 
of
 
a
 
Utilisation
Request
), clause
(Illegality)
, clause
(Changes to
 
the Lenders)
, clause
(Application
of
 
prepayments)
,
 
this
 
clause
,
 
clause
(Governing
 
law)
 
or
 
clause
(Jurisdiction
 
of
English courts)
;
(n)
 
the order of distribution under clause
(Order of application)
;
(o)
 
the currency in which any amount is payable under any
 
Finance Document;
(p)
 
(other than as
 
expressly permitted
 
by the provisions
 
of any Finance
 
Document) the
 
nature or
scope of:
(i)
 
any
 
guarantee
 
and
 
indemnity
 
granted
 
under
 
any
 
Finance
 
Document
 
(including
 
under
clause
(Guarantee and indemnity)
);
(ii)
 
the Charged Property; or
(iii)
 
the
 
manner
 
in
 
which
 
the
 
proceeds
 
of
 
enforcement
 
of
 
the
 
Transaction
 
Security
 
are
distributed; or
(q)
 
the
 
circumstances
 
in
 
which
 
any
 
of
 
the
 
Transaction
 
Security
 
is
 
permitted
 
or
 
required
 
to
 
be
released under any of the Finance Documents,
 
shall not be made, or given, without the prior consent
 
of all the Lenders.
 
47.3
 
Other exceptions
(a)
 
Amendments
 
to
 
or waivers
 
in
 
respect
 
of
 
the
 
Hedging
 
Contracts
 
may only
 
be
 
agreed
 
by the
Hedging Provider.
(b)
 
An amendment
 
or waiver
 
which relates
 
to the
 
rights or
 
obligations of
 
the Agent,
 
the Security
Agent, the Hedging Provider, the Sustainability Co-ordinator or the Arranger in their respective
capacities as
 
such (and
 
not just
 
as a Lender)
 
may not
 
be effected
 
without the
 
consent of
 
the
Agent,
 
the
 
Security
 
Agent,
 
the
 
Hedging
 
Provider,
 
the
 
Sustainability
 
Co-ordinator
 
or
 
the
Arranger (as the case may be).
 
(c)
 
Notwithstanding
 
clauses
 
and
 
and
 
paragraph
 
above,
 
the
 
Agent
 
may
 
make
technical amendments to the Finance
 
Documents arising out of manifest
 
errors on the face of
the Finance
 
Documents, where such
 
amendments would not
 
prejudice or
 
otherwise be
 
adverse
to the interests of any Finance Party without any reference
 
or consent of the Finance Parties.
 
47.4
 
Changes to Reference Rates
(a)
 
Subject
 
to
 
clause
 
(
Other
 
exceptions
),
 
if
 
a
 
Published
 
Rate
 
Replacement
 
Event
 
has
occurred in relation to any Published Rate, any amendment
 
or waiver which relates to:
(i)
 
providing for the use of a Replacement Reference Rate in place of that Published Rate;
and
(ii)
 
any or all of the following:
(A)
 
aligning any provision
 
of any Finance
 
Document to
 
the use
 
of that Replacement
Reference Rate;
(B)
 
enabling
 
that
 
Replacement
 
Reference
 
Rate
 
to
 
be
 
used
 
for
 
the
 
calculation
 
of
interest
 
under
 
this
 
Agreement
 
(including,
 
without
 
limitation,
 
any
 
consequential
changes required to enable that Replacement
 
Reference Rate to be used for
 
the
purposes of this Agreement);
(C)
 
implementing
 
market
 
conventions
 
applicable
 
to
 
that
 
Replacement
 
Reference
Rate;
(D)
 
providing
 
for
 
appropriate
 
fallback
 
(and
 
market
 
disruption)
 
provisions
 
for
 
that
Replacement Reference Rate; or
(E)
 
adjusting the pricing
 
to reduce or eliminate,
 
to the extent reasonably
 
practicable,
any
 
transfer
 
of
 
economic
 
value
 
from
 
one
 
Party
 
to
 
another
 
as
 
a
 
result
 
of
 
the
application of that
 
Replacement Reference Rate (and
 
if any adjustment
 
or method
for
 
calculating
 
any
 
adjustment
 
has
 
been
 
formally
 
designated,
 
nominated
 
or
recommended
 
by
 
the
 
Relevant
 
Nominating
 
Body,
 
the
 
adjustment
 
shall
 
be
determined on the basis of that designation, nomination or recommendation),
may be
 
made with
 
the consent
 
of the
 
Agent (acting
 
on the
 
instructions of
 
the Majority
Lenders) and the Borrowers.
(b)
 
If any Lender fails to respond to a
 
request for an amendment or waiver described in paragraph
(a) above within ten (10)
 
Business Days (or such
 
longer time period in relation
 
to any request
which the Borrowers and the Agent may agree) of that
 
request being made:
(i)
 
its
 
Commitment(s)
 
shall
 
not
 
be
 
included
 
for
 
the
 
purpose
 
of
 
calculating
 
the
 
Total
Commitments under the Facility
 
when ascertaining whether
 
any relevant percentage
 
of
the Total
 
Commitments has been obtained to approve that request;
 
and
(ii)
 
its status as
 
a Lender shall
 
be disregarded for
 
the purpose of
 
ascertaining whether
 
the
agreement of any
 
specified group of
 
Lenders has been
 
obtained to approve
 
that request.
(c)
 
In this clause
Published Rate
 
means:
(a)
 
SOFR; or
(b)
 
the Term
 
SOFR for any Quoted Tenor.
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 Majority Lenders, materially changed;
 
or
(b)
 
(i)
 
either
(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 Majority Lenders) temporary; or
(ii)
 
that
 
Published
 
Rate
 
is
 
calculated
 
in
 
accordance
 
with
 
any
 
such
 
policy
 
or
arrangement for a period of no less than 15 Business
 
Days; or
(d)
 
in
 
the
 
opinion
 
of
 
the
 
Majority
 
Lenders,
 
that
 
Published
 
Rate
 
is
 
otherwise
 
no
 
longer
appropriate for the purposes of calculating interest under
 
this Agreement.
Quoted Tenor
 
means, in relation to Term
 
SOFR, any period for which that rate is customarily
displayed on the relevant page or screen of an information
 
service.
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 paragraph (ii) above;
(b)
 
in
 
the
 
opinion
 
of
 
the
 
Majority
 
Lenders
 
and
 
the
 
Obligors,
 
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 Majority
 
Lenders and
 
the Obligors,
 
an appropriate
 
successor to
 
a
Published Rate.
47.5
 
Releases
Except with the approval
 
of the Lenders or
 
for a release which
 
is expressly permitted
 
or required by
the Finance Documents, the Agent shall not
 
have authority to authorise the Security Agent
 
to release
(nor shall any Finance
 
Party, unless so directed by the Security
 
Agent in accordance with
 
clause
(
Enforcement through Security Agent only
), release:
(a)
 
any Charged Property from the Transaction
 
Security; or
(b)
 
any Obligor from any of its guarantee or other obligations
 
under any Finance Document.
 
47.6
 
Disenfranchisement of Defaulting Lenders
(a)
 
For so long as a Defaulting Lender has any Available
 
Commitment, in ascertaining:
(i)
 
the Majority Lenders; or
(ii)
 
whether:
(A)
 
any given percentage
 
(including, for the
 
avoidance of doubt,
 
unanimity) of
the Total
 
Commitments under the Facility; or
(B)
 
the agreement of any specified group of Lenders,
has been obtained
 
to approve
 
any request for
 
a consent, waiver,
 
amendment or
other vote of Lenders under the Finance Documents,
that
 
Defaulting
 
Lender’s
 
Commitment
 
will
 
be
 
reduced
 
by
 
the
 
amount
 
of
 
its
 
Available
Commitment
 
and, to
 
the extent
 
that such
 
reduction
 
results
 
in that
 
Defaulting Lender’s
Commitment being zero, that Defaulting Lender
 
shall be deemed not to be a Lender
 
for
the purposes of paragraphs (i) and (ii) above.
(b)
 
For the
 
purposes
 
of this
 
clause
, the
 
Agent may
 
assume that
 
the following
 
Lenders are
Defaulting Lenders:
(i)
 
any Lender which has notified
 
the Agent that it has
 
become a Defaulting Lender;
and
(ii)
 
any Lender in relation to which it
 
is aware that any of the events or
 
circumstances
referred to in paragraphs (a), (b) or (c) of the definition of “Defaulting Lender” has
occurred,
unless it
 
has received
 
notice to
 
the contrary
 
from the
 
Lender concerned
 
(together with
any supporting evidence reasonably
 
requested by the
 
Agent) or the Agent
 
is otherwise
aware that the Lender has ceased to be a Defaulting Lender.
47.7
 
Replacement of a Defaulting Lender
(a)
 
The Borrowers
 
may, at any
 
time a
 
Lender has
 
become and
 
continues to
 
be a
 
Defaulting Lender,
by giving 10 Business Days’ prior notice
 
to the Agent and such Lender replace
 
such Lender by
requiring
 
such
 
Lender
 
to
 
(and
 
to
 
the
 
extent
 
permitted
 
by
 
law
 
such
 
Lender
 
shall)
 
assign
 
or
transfer
 
pursuant
 
to
 
clause
 
(
Changes
 
to
 
the
 
Lenders
)
 
all (and
 
not
 
part
 
only)
 
of
 
its
 
rights
under this
 
Agreement (and any
 
Security Document to
 
which that
 
Lender is
 
a party
 
in its
 
capacity
as a Lender) to
 
an Eligible Institution
 
(a
Replacement Lender
) which confirms
 
its willingness
to assume and does
 
assume all the obligations
 
or all the relevant
 
obligations of the assigning
Lender in
 
accordance with
 
clause
 
(
Changes to
 
the Lenders
) for
 
a purchase
 
price in
 
cash
payable at the time of transfer which is either:
(i)
 
in an amount equal to:
(A)
 
the outstanding principal amount of such Lender's participation
 
in the Loan;
(B)
 
all accrued interest owing to such Lender;
(C)
 
the
 
Break
 
Costs
 
which
 
would
 
have
 
been
 
payable
 
to
 
such
 
Lender
 
pursuant
 
to
clause
 
(
Break
 
Costs
)
 
had
 
the
 
Borrowers
 
prepaid
 
in
 
full
 
that
 
Lender's
participation in the Loan on the date of the assignment;
 
and
(D)
 
all other
 
amounts
 
payable
 
to that
 
Lender
 
under the
 
Finance
 
Documents
 
on the
date of the assignment.
(ii)
 
in an amount agreed between that Defaulting
 
Lender, the Replacement
 
Lender and the
Borrowers and which does not exceed the amount described
 
in paragraph (i) above.
(b)
 
Any assignment
 
by
 
a Defaulting
 
Lender
 
pursuant
 
to this
 
clause
 
shall
 
be subject
 
to the
following conditions:
(i)
 
the Borrowers shall have no right to replace the Agent
 
or the Security Agent;
(ii)
 
neither the Agent
 
nor the Defaulting
 
Lender shall have
 
any obligation to
 
the Borrowers
to find a Replacement Lender;
(iii)
 
the assignment must take place no later
 
than 10 Business Days after the notice referred
to in paragraph (a) above;
(iv)
 
in
 
no
 
event
 
shall
 
the
 
Defaulting
 
Lender
 
be
 
required
 
to
 
pay
 
or
 
surrender
 
to
 
the
Replacement Lender any of
 
the fees received by the
 
Defaulting Lender pursuant
 
to the
Finance Documents; and
(v)
 
the Defaulting Lender shall only be obliged to assign its
 
rights pursuant to paragraph (a)
above once
 
it is satisfied
 
that it
 
has complied
 
with all
 
necessary “know
 
your customer”
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
 
regulations
 
in
 
relation
 
to
 
that
assignment to the Replacement Lender.
(c)
 
The Defaulting Lender shall perform the
 
checks described in paragraph (b) (v)
 
above as soon
as reasonably practicable following delivery of a notice referred
 
to in paragraph (a) above and
shall notify
 
the
 
Agent
 
and
 
the
 
Borrowers
 
when
 
it
 
is satisfied
 
that
 
it has
 
complied
 
with
 
those
checks.
47.8
 
Disenfranchisement of Guarantor Affiliates
(a)
 
For so long as a Guarantor Affiliate:
(i)
 
beneficially owns a Commitment; or
(ii)
 
has
 
entered
 
into
 
a
 
sub-participation
 
agreement
 
relating
 
to
 
a
 
Commitment
 
or
 
other
agreement
 
or
 
arrangement
 
having
 
a
 
substantially
 
similar
 
economic
 
effect
 
and
 
such
agreement or arrangement has not been terminated,
in ascertaining:
(A)
 
the Majority Lenders; or
(B)
 
whether:
(1)
 
any
 
given
 
percentage
 
(including,
 
for
 
the
 
avoidance
 
of
 
doubt,
 
unanimity)
 
of
 
the
Total
 
Commitments; or
(2)
 
the agreement of any specified group of Lenders,
has been
 
obtained
 
to
 
approve
 
any request
 
for
 
a consent,
 
waiver,
 
amendment
 
or other
 
vote
under the Finance Documents,
such Commitment shall be deemed to be zero
 
and such Guarantor Affiliate or the
 
person with
whom
 
it
 
has
 
entered
 
into
 
such
 
sub-participation,
 
other
 
agreement
 
or
 
arrangement
 
shall
 
be
deemed not
 
to be
 
a Lender
 
for the
 
purposes of
 
paragraphs (A)
 
and (B)
 
above (unless
 
in the
case
 
of
 
a
 
person
 
not
 
being
 
a
 
Guarantor
 
Affiliate
 
it
 
is
 
a
 
Lender
 
by
 
virtue
 
otherwise
 
than
 
by
beneficially owning the relevant Commitment).
(b)
 
Each
 
Lender
 
shall,
 
unless
 
such
 
Debt
 
Purchase
 
Transaction
 
is
 
an
 
assignment
 
or
 
transfer,
promptly notify the Agent in writing
 
if it knowingly enters into a
 
Debt Purchase Transaction with
a
 
Guarantor
 
Affiliate
 
(a
Notifiable
 
Debt
 
Purchase
 
Transaction
),
 
such
 
notification
 
to
 
be
substantially in
 
the form
 
set out
 
in Part
 
I of
Forms of
 
Notifiable Debt
 
Purchase
Transaction Notice
).
(c)
 
A Lender shall
 
promptly notify the
 
Agent if a Notifiable
 
Debt Purchase Transaction
 
to which it
is a party:
(i)
 
is terminated; or
(ii)
 
ceases to be with a Guarantor Affiliate,
such
 
notification
 
to
 
be
 
substantially
 
in
 
the
 
form
 
set
 
out
 
in
 
Part
 
II
 
of
Forms
 
of
Notifiable Debt Purchase Transaction
 
Notice
).
(d)
 
Each Guarantor Affiliate that is a Lender agrees that:
(i)
 
in relation to
 
any meeting or conference
 
call to which all
 
the Lenders are
 
invited to attend
or participate, it shall
 
not attend or participate
 
in the same if
 
so requested by
 
the Agent
or, unless the Agent otherwise agrees, be entitled to receive the agenda or any minutes
of the same; and
(ii)
 
in its
 
capacity as
 
Lender,
 
unless the
 
Agent otherwise
 
agrees, it
 
shall not
 
be entitled
 
to
receive any
 
report or
 
other document
 
prepared at
 
the behest
 
of, or
 
on the
 
instructions
of, the Agent or one or more of the Lenders.
48
 
Confidential Information
48.1
 
Confidential Information
Each Finance
 
Party agrees
 
to keep all
 
Confidential Information
 
confidential and
 
not to disclose
 
it to
anyone, save to
 
the extent permitted
 
by clause
(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.
 
48.2
 
Disclosure of Confidential Information
Any Finance Party may disclose:
(a)
 
to any of its Affiliates
 
and Related Funds and
 
any of its or their
 
officers, directors,
 
employees,
professional advisers, auditors, partners
 
and Representatives such Confidential Information
 
as
that
 
Finance
 
Party
 
shall
 
consider
 
appropriate
 
if
 
any
 
person
 
to
 
whom
 
the
 
Confidential
Information is to be given pursuant
 
to this paragraph
 
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 underwriter, insurance company,
 
mutual insurance association or other insurer (or their
officers,
 
directors,
 
employees,
 
professional
 
advisers,
 
auditors
 
or
 
partners)
 
or
 
broker
 
with
 
or
through whom the
 
Agent or the Security
 
Agent has effected
 
or proposes to
 
effect any form
 
of
insurance
 
for
 
the
 
benefit
 
of
 
any
 
of
 
the
 
Finance
 
Parties
 
in
 
relation
 
to
 
their
 
interests
 
and/or
potential
 
liabilities
 
in
 
relation
 
to
 
the
 
Transaction
 
Security
 
(including,
 
but
 
not
 
limited
 
to,
 
any
mortgagee
 
interest
 
insurance
 
or
 
mortgagee
 
additional
 
perils
 
insurance)
 
such
 
Confidential
Information
 
as
 
the
 
Agent
 
or
 
the
 
Security
 
Agent
 
shall
 
consider
 
appropriate
 
in
 
relation
 
to
 
that
insurance (including but
 
not limited to
 
the name of a
 
Ship, its IMO number
 
and the amount
 
of
the outstanding indebtedness in respect thereof);
(c)
 
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
 
or which
 
succeeds
 
(or which
 
may
potentially
 
succeed)
 
it
 
as
 
Agent
 
or
 
Security
 
Agent
 
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 Obligors
 
and to any
 
of that person’s
 
Affiliates, Related
Funds, Representatives and professional advisers;
(iii)
 
appointed by any
 
Finance Party or
 
by a person
 
to whom paragraphs
 
(c)
 
or (c)
 
above
applies
 
to
 
receive
 
communications,
 
notices,
 
information
 
or
 
documents
 
delivered
pursuant
 
to
 
the
 
Finance
 
Documents
 
on
 
its
 
behalf
 
(including,
 
without
 
limitation,
 
any
person appointed
 
under paragraph
 
of clause
 
(
Relationship with
 
the Lenders
and Hedging Provider
));
(iv)
 
who invests in or
 
otherwise finances (or
 
may potentially invest
 
in or otherwise finance),
directly or indirectly,
 
any transaction referred to in paragraphs (c)
 
or (c)
 
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,
 
arbitration,
 
administrative
 
or
 
other
 
investigations,
 
proceedings
 
or
disputes;
(vii)
 
to whom or for whose
 
benefit that Finance Party
 
charges, assigns or otherwise
 
creates
Security (or may do so) pursuant to clause
 
(Security over Lenders’ rights);
(viii)
 
who is a Party; or
(ix)
 
with the consent of the Borrowers;
in each case, such Confidential Information as that
 
Finance Party shall consider appropriate if:
(A)
 
in relation
 
to paragraphs
 
(c)(i), (c)(ii)
 
and (c)(iii)
 
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
 
and, in
the event
 
that such
 
person is
 
a fund,
 
the Agent
 
has notified
 
the Borrowers
 
of its
intention to disclose such Confidential Information;
(B)
 
in
 
relation
 
to
 
paragraph
 
(c)(iv)
 
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 and, in the event that such person
is a
 
fund,
 
the
 
Agent has
 
notified
 
the
 
Borrowers
 
of its
 
intention to
 
disclose
 
such
Confidential Information;
(C)
 
in relation to paragraphs (c)(v),
 
(c)(vi) and (c)(vii) 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 that Finance Party,
 
it is not practicable so to do in the circumstances,
and provided further that, in relation to sub-paragraphs
 
(i), (ii), (iii) and (iv) of paragraph
(c) above, the
 
Borrowers’ consent
 
is required unless
 
the Confidential Information
 
is (a)
provided to another Lender
 
or an Affiliate of
 
a Lender or a
 
Related Fund or (b)
 
given at
a time when an Event of Default has occurred and has not been waived by the Agent in
writing or (c) is provided
 
for the purposes of an assignment which
 
is for the sole purpose
of a securitisation, covered bond
 
program or similar transaction in
 
respect of the Facility;
(d)
 
to any
 
person appointed
 
by that
 
Finance
 
Party or
 
by a
 
person to
 
whom
 
paragraphs
 
(c)
 
or
(c)
 
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
 
if the
 
service provider
 
to whom
 
the Confidential
 
Information is
 
to be
 
given has
entered
 
into
 
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
 
relevant
Finance Party; and
(e)
 
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 Obligors.
48.3
 
Entire agreement
This clause
 
constitutes the entire
 
agreement between
 
the Parties in
 
relation to
 
the obligations of
the
 
Finance
 
Parties
 
under
 
the
 
Finance
 
Documents
 
regarding
 
Confidential
 
Information
 
and
supersedes any previous agreement,
 
whether express or implied,
 
regarding Confidential Information.
 
48.4
 
Inside information
Each of the Finance Parties
 
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 each
of the Finance Parties undertakes not to use any Confidential
 
Information for any unlawful purpose.
 
48.5
 
Notification of disclosure
Each
 
of
 
the
 
Finance
 
Parties
 
agrees
 
(to
 
the
 
extent
 
permitted
 
by
 
law
 
and
 
regulation)
 
to
 
inform
 
the
Borrowers:
(a)
 
of the
 
circumstances of any
 
disclosure of Confidential
 
Information made to
 
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 or
 
the rules
of
 
any
 
relevant
 
stock
 
exchange
 
or
 
pursuant
 
to
 
any
 
applicable
 
law
 
or
 
regulation
 
pursuant
 
to
clause
 
(
Disclosure of Confidential
 
Information
) except where
 
such disclosure
 
is made to
any such person 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
.
 
48.6
 
Continuing obligations
The obligations
 
in this
 
clause
 
are continuing
 
and, in
 
particular,
 
shall survive
 
and remain
 
binding
on each Finance Party for a period of twelve Months from the
 
earlier of:
(a)
 
the date on which all amounts payable
 
by the Obligors under or in
 
connection with the Finance
Documents
 
have
 
been
 
paid
 
in
 
full
 
and
 
all
 
Commitments
 
have
 
been
 
cancelled
 
or
 
otherwise
cease to be available; and
(b)
 
the date on which such Finance Party otherwise ceases to be
 
a Finance Party.
48.7
 
Publicity
Each of the Agent and the Arranger has the right, at its own
 
expense, to publish information about its
participation
 
in
 
and
 
the
 
agency
 
and
 
arrangement
 
of
 
the
 
Facility
 
and
 
for
 
such
 
purpose
 
use
 
the
Guarantor’s logo and trademark in connection with such publication provided they have received the
written consent of the Guarantor.
49
 
Confidentiality of Funding Rates
 
49.1
 
Confidentiality and disclosure
(a)
 
The Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose
it to anyone, save to the extent permitted by paragraphs
 
(b) and (c) below.
(b)
 
The Agent may disclose:
(i)
 
any
 
Funding
 
Rate
 
to
 
the
 
Borrowers
 
pursuant
 
to
 
clause
 
(
Notification
 
of
 
rates
 
of
interest
); and
(ii)
 
any
 
Funding
 
Rate
 
to
 
any
 
person
 
appointed
 
by
 
it
 
to
 
provide
 
administration
 
services
 
in
respect
 
of
 
one
 
or
 
more
 
of
 
the
 
Finance
 
Documents
 
to
 
the
 
extent
 
necessary
 
to
 
enable
such
 
service
 
provider
 
to
 
provide
 
those
 
services
 
if
 
the
 
service
 
provider
 
to
 
whom
 
that
information is
 
to be
 
given has
 
entered into
 
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 Agent and the relevant
 
Lender.
(c)
 
The Agent may disclose any Funding Rate, and 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 Agent
 
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
 
Agent 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 relevant Lender.
 
49.2
 
Related obligations
(a)
 
The Agent and each Obligor acknowledge 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 the
 
Agent
 
and each
 
Obligor
undertake not to use any Funding Rate for any unlawful purpose.
(b)
 
The Agent and each Obligor agree
 
(to the extent permitted by law
 
and regulation) to inform the
relevant Lender:
(i)
 
of
 
the
 
circumstances
 
of
 
any
 
disclosure
 
made
 
pursuant
 
to
 
clause
 
46.1(c)(ii)
(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
49.3
 
No Event of Default
No Event
 
of Default
 
will occur
 
under clause
Other obligations
) by
 
reason only
 
of an
 
Obligor’s
failure to comply with this clause
50
 
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.
 
51
 
Contractual recognition of bail in
(a)
 
Notwithstanding
 
any
 
other
 
term
 
of
 
any
 
Finance
 
Document
 
or
 
any
 
other
 
agreement,
arrangement
 
or
 
understanding
 
between
 
the
 
Parties,
 
each
 
Party
 
acknowledges
 
and
 
accepts
that
 
any
 
liability
 
of
 
any
 
Party
 
to
 
any
 
other
 
Party
 
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:
(i)
 
any Bail-In Action in relation to any such liability,
 
including (without limitation):
(A)
 
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;
(B)
 
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
(C)
 
a cancellation of any such liability; and
(ii)
 
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.
(b)
 
In this Agreement and (unless
 
otherwise defined in the relevant
 
Finance Document) the other
Finance Documents:
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.
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 the United Kingdom, the UK Bail-In Legislation;
 
and
 
(c)
 
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.
EEA
 
Member
 
Country
 
means
 
any
 
member
 
state
 
of
 
the
 
European
 
Union,
 
Iceland,
Liechtenstein and Norway.
EU Bail-In
 
Legislation Schedule
 
means the
 
document described
 
as such
 
and published
 
by
the Loan Market Association (or any successor person)
 
from time to time.
 
Resolution Authority
 
means any
 
body which
 
has authority
 
to exercise
 
any Write-down
 
and
Conversion Powers.
 
UK Bail-In Legislation
 
means Part I
 
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 institutions
 
or their
 
affiliates
 
(otherwise than
through liquidation, administration or other insolvency
 
proceedings).
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; and
(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;
(c)
 
in relation to any UK Bail-In Legislation:
 
(i)
 
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; and
(ii)
 
any similar or analogous powers under that UK Bail-In
 
Legislation.
Section 11 -
 
Governing Law and Enforcement
52
 
Governing law
This Agreement and any non-contractual obligations connected
 
with it are governed by English law.
 
53
 
Enforcement
53.1
 
Jurisdiction of English courts
(a)
 
The
 
courts
 
of
 
England
 
have
 
exclusive
 
jurisdiction
 
to
 
settle
 
any
 
dispute
 
arising
 
out
 
of
 
or
 
in
connection with this Agreement or any non-contractual obligations connected with it (including
a dispute regarding the existence, validity or termination
 
of this Agreement) (a Dispute).
 
(b)
 
The Parties agree
 
that the courts
 
of England are
 
the most appropriate
 
and convenient courts
to settle Disputes and accordingly no Party will argue
 
to the contrary.
 
(c)
 
Notwithstanding paragraphs
 
and
 
above, no
 
Finance Party shall
 
be prevented
 
from taking
proceedings relating
 
to a
 
Dispute in
 
any other
 
courts with
 
jurisdiction.
 
To
 
the extent
 
allowed
by law, the Finance Parties
 
may take concurrent proceedings in any number of jurisdictions.
53.2
 
Service of process
Without prejudice to any other mode of service allowed under any relevant law,
 
any Obligor who is a
Party:
(a)
 
irrevocably appoints
 
the person
 
named in
The original
 
parties
) as
 
that Obligor’s
English process agent as its agent for service of process in relation to any proceedings before
the English courts in connection with any Finance Document;
(b)
 
agrees
 
that
 
failure
 
by
 
an
 
agent
 
for
 
service
 
of
 
process
 
to
 
notify
 
the
 
relevant
 
Obligor
 
of
 
the
process will not invalidate the proceedings concerned; and
(c)
 
if
 
any
 
person
 
appointed
 
as process
 
agent
 
for
 
an
 
Obligor
 
is unable
 
for
 
any reason
 
to
 
act as
agent for service
 
of process, that
 
Obligor must immediately
 
(and in any
 
event within ten
 
days
of such
 
event taking
 
place) appoint
 
another agent
 
on terms
 
acceptable to
 
the Agent.
 
Failing
this, the Agent 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 original parties
Part 1
The Borrowers
Name:
Bikini Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Jabat Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Tuvalu Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Name:
Kaben Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Taroa
 
Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Gala Properties Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Rairok Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
 
 
 
 
 
 
 
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Name:
Fayo Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Lae Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Name:
Namu Shipping Company Inc.
Original Jurisdiction
 
Republic of the Marshall Islands
Registered office
Trust Company Complex, Ajeltake Road,
 
Ajeltake Island, Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English process agent (if not
incorporated in England)
Hill Dickinson Services (London) Ltd. of Broadgate Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Part 2
The Guarantor
Name of Gurantor
Diana Shipping Inc.
 
Original Jurisdiction
Republic of the Marshall Islands
Registration number
 
(or equivalent, if any)
13671
Registered office
Trust
 
Company Complex,
 
Ajeltake Road,
 
Ajeltake
 
Island,
 
Majuro,
Marshall Islands MH96960
Address for service of notices
c/o Diana Shipping Services S.A.
Pendelis 16, 175 64 Palaio Faliro, Greece
e-mail: corpgov@dianashippingservices.com
Attention: Margarita Veniou
English
 
process
 
agent
 
(if
 
not
incorporated in England)
Hill
 
Dickinson
 
Services
 
(London)
 
Ltd.
 
of
 
Broadgate
 
Tower,
 
20
Primrose Street, London, EC2A 2EW,
 
United Kingdom
Part 3
The Original Lenders
 
Name
DNB (UK) LTD.
Facility
 
Office
 
and
 
contact
details for notices
 
8
th
 
Floor,
 
The
 
Walbrook
 
Building,
 
25
 
Walbrook,
 
London
 
EC4N
 
8AF,
United Kingdom
e-mail: cmoalondon@dnb.no
 
Attention: Shane Gillogley
Commitment ($)
100,000,000
TOTAL
 
COMMITMENTS
 
100,000,000
Part 4
The Agent
Name
DNB BANK ASA
Facility
 
Office,
 
contact
details
 
and
 
account
 
details
for payment
8
th
 
Floor,
 
The
 
Walbrook
 
Building,
 
25
 
Walbrook,
 
London
 
EC4N
 
8AF,
United Kingdom
e-mail:
 
cmoalondon@dnb.no
 
Attention: Shane Gillogley
Part 5
The Security Agent
Name
DNB BANK ASA
Facility
 
Office,
 
contact
details
 
and
 
account
 
details
for payment
 
8
th
 
Floor,
 
The
 
Walbrook
 
Building,
 
25
 
Walbrook,
 
London
 
EC4N
 
8AF,
United Kingdom
e-mail:
 
cmoalondon@dnb.no
 
Attention: Shane Gillogley
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Part 6
The Hedging Provider
Name
DNB BANK ASA
Facility
 
Office
 
and
 
contact
details for notices
 
8
th
 
Floor,
 
The
 
Walbrook
 
Building,
 
25
 
Walbrook,
 
London
 
EC4N
 
8AF,
United Kingdom
e-mail: ISDA@dnb.no and cmoalondon@dnb.no
 
Attention: ISDA Team
 
and Shane Gillogley
Part 7
The Sustainability Co-ordinator
Name
DNB BANK ASA
Facility
 
Office
 
and
 
contact
details for notices
 
8
th
 
Floor,
 
The
 
Walbrook
 
Building,
 
25
 
Walbrook,
 
London
 
EC4N
 
8AF,
United Kingdom
e-mail:
 
cmoalondon@dnb.no
 
Attention: Shane Gillogley
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Schedule 2
 
Ship information
Ship A
Name of Ship:
New York
IMO Number:
9405332
Owner:
Bikini Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
I
X
HULL
X
MACH
Bulk carrier BC-A ( maximum cargo density 3.00 t/m3; holds
2,4,6,8 may be empty) ESP
X
STAR-HULL,
X
AUT-UMS , MON-SHAFT ,
 
SEEMP,
GRABLOADING , CYBER MANAGED , INWATERSURVEY
Classification Society:
Bureau Veritas
Major Casualty Amount:
$1,000,000
Ship B
Name of Ship:
Maia
IMO Number:
9422938
Owner:
Jabat Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
NS / MNS
(CSR, BC-A, BC-XII, GRAB 20)(ESP)(IWS)(PSCM)(M0)
(Strengthened for heavy cargo loading where hold nos. 2,4 &
 
6 may
be empty)
Classification Society:
Nippon Kaiji Kyokai
Major Casualty Amount:
$1,000,000
Ship C
Name of Ship:
Myrto
IMO Number:
9518086
Owner:
Tuvalu Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
NS* / MNS*
(CSR, BC-A, BC-XII, GRAB 20, PSPC-WBT)(ESP)(IWS)(PSCM)
(Strengthened for heavy cargo loading where hold nos. 2,4 &
 
6 may
be empty)
Classification Society:
Nippon Kaiji Kyokai
Major Casualty Amount:
$1,000,000
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Ship D
Name of Ship:
Selina
IMO Number:
9473183
Owner:
Kaben Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
I
X
HULL
X
MACH
Bulk carrier CSR BC-A (holds 2,4,6 may be empty) ESP GRAB[20]
Unrestricted navigation
 
X
 
VeriSTAR
 
-HULL,
X
AUT-UMS, MON-SHAFT,
 
GREEN
PASSPORT
PROTECTED FO TANK,
 
CYBER MANAGED, INWATERSURVEY
Classification Society:
Bureau Veritas
Major Casualty Amount:
$1,000,000
Ship E
Name of Ship:
Ismene
IMO Number:
9493535
Owner:
Taroa
 
Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
X
1A1
 
Bulk
 
carrier
 
BC(A)
 
BIS
 
Clean
 
CSR
 
E0
 
ESP
 
Grab(20
 
t)
Holds(2,4,6)may be empty TMON
Classification Society:
Det Norske Veritas
Major Casualty Amount:
$1,000,000
Ship F
Name of Ship:
Houston
IMO Number:
9539602
Owner:
Gala Properties Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
I
X
HULL
X
MACH
Bulk
 
carrier
 
BC-A
 
(holds
 
2,4,6,8
 
may
 
be
 
empty)
 
ESP
 
GRAB[25]
Unrestricted navigation
 
X
STAR-HULL,
X
AUT-UMS,
 
MON-SHAFT,
 
GREEN
 
PASSPORT,
SEEMP
 
CYBER MANAGED, INWATERSURVEY
Classification Society:
Bureau Veritas
Major Casualty Amount:
$1,000,000
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
exhibit450p167i0
Ship G
Name of Ship:
Medusa
IMO Number:
9461130
Owner:
Rairok Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
NS* / MNS*
(CSR, BC-A, BC-XII, GRAB 20)(ESP)(IWS)(PSCM)
(Strengthened for heavy cargo loading where hold nos. 2,4 &
 
6 may
be empty)
Classification Society:
Nippon Kaiji Kyokai
Major Casualty Amount:
$1,000,000
Ship H
Name of Ship:
Artemis
IMO Number:
9335989
Owner:
Fayo Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
NS* / MNS*
(BC, SHC 2,4,6 E)(ESP)(PSCM)M0)
Classification Society:
Nippon Kaiji Kyokai
Major Casualty Amount:
$1,000,000
Ship I
Name of Ship:
Los Angeles
IMO Number:
9588483
Owner:
Lae Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
I
X
HULL
X
MACH
Bulk carrier CSR CPS(WBT) BC-A (holds 2,4,6
☆
 
8 may be empty)
GRAB
X
[25]
ESP
Unrestricted navigation
X
VeriSTAR
 
-HULL ,
X
AUT-UMS , MON-SHAFT , GREEN
PASSPORT
 
, PROTECTED FO TANK
 
, CYBER MANAGED ,
INWATERSURVEY
Classification Society:
Bureau Veritas
Major Casualty Amount:
$1,000,000
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
exhibit450p167i0
Ship J
Name of Ship:
Philadelphia
IMO Number:
9588495
Owner:
Namu Shipping Company Inc.
Flag State:
The Republic of the Marshall Islands
Classification:
I
X
HULL
X
MACH
Bulk carrier CSR CPS(WBT) BC-A (holds 2,4,6
☆
 
8 may be empty)
GRAB
X
25
ESP
Unrestricted navigation
X
 
VeriSTAR
 
-HULL
 
,
X
AUT-UMS
 
,
 
MON-SHAFT
 
,
 
GREEN
PASSPORT
 
,
 
PROTECTED
 
FO
 
TANK
 
,
 
CYBER
 
MANAGED
 
,
INWATERSURVEY
Classification Society:
Bureau Veritas
Major Casualty Amount:
$1,000,000
Schedule 3
 
Conditions precedent
Part 1
Conditions precedent to any Utilisation
1
 
Original Obligors' corporate documents
(a)
 
A
 
copy
 
of
 
the
 
Constitutional
 
Documents
 
(including
 
any
 
joint
 
venture
 
or
 
shareholders’
agreements
 
or
 
any
 
silent
 
partnership
 
agreements
 
in
 
respect
 
of
 
any
 
Original
 
Obligor)
 
and,
 
if
applicable, a certificate of good standing of each Original Obligor.
 
(b)
 
A
 
copy
 
of
 
a
 
resolution
 
of
 
the
 
board
 
of
 
directors
 
of
 
each
 
Original
 
Obligor
 
(other
 
than
 
the
Guarantor) and a copy of a resolution of the executive committee
 
of the Guarantor:
(i)
 
approving
 
the
 
terms
 
of,
 
and
 
the
 
transactions
 
contemplated
 
by,
 
the
 
Transaction
Documents to which
 
it is a
 
party (its
Relevant Documents
) and resolving
 
that it execute,
deliver and perform its Relevant Documents;
(ii)
 
authorising
 
a
 
specified
 
person
 
or
 
persons
 
to
 
execute
 
its
 
Relevant
 
Documents
 
on
 
its
behalf; and
(iii)
 
authorising
 
a
 
specified
 
person
 
or
 
persons,
 
on
 
its
 
behalf,
 
to
 
sign
 
and/or
 
despatch
 
all
documents
 
and
 
notices
 
(including,
 
if
 
relevant,
 
any
 
Utilisation
 
Request)
 
to
 
be
 
signed
and/or despatched by it under or in connection with its
 
Relevant Documents.
 
(c)
 
A
 
specimen
 
of
 
the
 
signature
 
of
 
each
 
person
 
authorised
 
by
 
the
 
resolution
 
referred
 
to
 
in
paragraph
 
above in relation to its Relevant Documents and related
 
documents.
 
(d)
 
A copy of
 
a resolution signed
 
by all the
 
holders of
 
the issued
 
shares in each
 
Original Obligor
(other than the
 
Guarantor), approving
 
the terms of,
 
and the transactions
 
contemplated by,
 
its
Relevant Documents.
(e)
 
A copy of a resolution of the board of directors of each corporate
 
shareholder of each Original
Obligor
 
(other
 
than
 
the
 
Guarantor)
 
approving
 
the
 
terms
 
of
 
the
 
resolution
 
referred
 
to
 
in
paragraph
 
above.
(f)
 
A certificate of the Guarantor (signed
 
by a director) confirming that borrowing
 
or guaranteeing
or
 
securing,
 
as
 
appropriate,
 
the
 
Total
 
Commitments
 
would
 
not
 
cause
 
any
 
borrowing,
guarantee, security or similar limit binding on any Original Obligor
 
to be exceeded.
 
(g)
 
A copy of any power
 
of attorney under which any
 
person is appointed by
 
any Original Obligor
to execute any of its Relevant Documents on its behalf.
 
(h)
 
A certificate
 
of an
 
authorised
 
signatory of
 
each relevant
 
Original Obligor
 
certifying that
 
each
copy document relating
 
to it specified
 
in this Part
 
of this Schedule
 
is correct, complete
 
and in
full force and effect and has not been amended or superseded as at a date no
 
earlier than the
date
 
of
 
this
 
Agreement
 
and
 
that
 
any
 
such
 
resolutions
 
or
 
power
 
of
 
attorney
 
have
 
not
 
been
revoked.
 
2
 
Legal opinions
(a)
 
A legal opinion of Norton Rose Fulbright LLP,
 
Greece addressed to the Arranger,
 
the Security
Agent, the Agent and each Original Lender on matters of English law, substantially in the form
approved by the Agent.
 
(b)
 
A
 
legal
 
opinion
 
of
 
the
 
legal
 
advisers
 
to
 
the
 
Arranger,
 
the
 
Security
 
Agent
 
and
 
the
 
Agent
 
in
England and also each jurisdiction
 
in which an Obligor is
 
incorporated and/or registered,
 
or in
which an Account opened at
 
the relevant time is established
 
substantially in the form approved
by the Agent.
 
3
 
Other documents and evidence
(a)
 
Evidence
 
that
 
any
 
process
 
agent
 
referred
 
to
 
in
 
clause
 
(
Service
 
of
 
process
)
 
or
 
any
equivalent provision
 
of any
 
other Finance
 
Document entered
 
into on
 
or before
 
the Utilisation
Date, if not an Original Obligor,
 
has accepted its appointment.
(b)
 
A copy
 
of any
 
other Authorisation
 
or other
 
document, opinion
 
or assurance
 
which the
 
Agent
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
Finance Document or for the validity and enforceability
 
of any Finance Document.
 
(c)
 
The Original Financial Statements.
 
(d)
 
Evidence
 
that
 
the
 
fees,
 
commissions,
 
costs
 
and
 
expenses
 
then
 
due
 
from
 
the
 
Borrowers
pursuant to clause
 
(
Fees
), any Fee Letter and clause
(Costs and expenses)
have been
paid or will be paid by the first Utilisation Date.
 
4
 
Bank Accounts
Evidence
 
that
 
any Account
 
required to
 
be established
 
under clause
(Bank
 
accounts)
 
has been
opened
 
and
 
established,
 
that
 
any
 
Account
 
Security
 
in
 
respect
 
of
 
each
 
such
 
Account
 
has
 
been
executed and delivered by the relevant Account Holder(s) and that any notice required to be given to
an
 
Account
 
Bank
 
under
 
that
 
Account
 
Security
 
has
 
been
 
given
 
to
 
it
 
and
 
acknowledged
 
by
 
it in
 
the
manner required by that Account Security and that an amount has
 
been credited to it.
5
 
Finance Documents
(a)
 
The Fee Letters duly executed by all parties to them.
(b)
 
Evidence that the
 
Hedging Master
 
Agreement has
 
been duly executed
 
by the Borrowers
 
and
the Hedging Provider.
(c)
 
The
 
Hedging
 
Contract
 
Security
 
duly
 
executed
 
and
 
any
 
notice
 
requested
 
by
 
the
 
Hedging
Provider under the
 
Hedging Contract Security
 
has been given
 
to it and
 
acknowledged by it
 
in
the manner required by the Hedging Contract Security.
(d)
 
The Share Security in respect of each Borrower
 
duly executed by the Guarantor together with
all letters, transfers, certificates
 
and other documents required
 
to be delivered
 
under each such
Share Security.
6
 
“Know your customer” information
Such
 
documentation
 
and
 
information
 
as
 
any
 
Finance
 
Party
 
may
 
reasonably
 
request
 
through
 
the
Agent to
 
comply
 
with
 
“know
 
your
 
customer”
 
or similar
 
identification
 
procedures
 
under all
 
laws and
regulations applicable to
 
that Finance Party
 
(including, but not
 
limited to, a copy
 
of a structure
 
chart
in respect of the Group, copies of the Disclosed Persons’ passport and evidence of,
 
signing authority
of any
 
person that
 
has signed
 
the documentation
 
relevant to
 
“know your
 
customer” checks
 
by any
Finance Party).
 
Part 2
Ship and security conditions precedent
1
 
Corporate documents
(a)
 
A
 
certificate
 
of
 
an
 
authorised
 
signatory
 
of
 
the
 
relevant
 
Owner
 
certifying
 
that
 
each
 
copy
document relating to it specified in
 
Part 1 of this Schedule
 
remains correct, complete and in full
force
 
and
 
effect
 
as
 
at
 
a
 
date
 
no
 
earlier
 
than
 
a
 
date
 
approved
 
for
 
this
 
purpose
 
and
 
that
 
any
resolutions or power
 
of attorney referred to
 
in Part 1 of
 
this Schedule in relation
 
to it have not
been revoked or amended.
 
(b)
 
A certificate
 
of an
 
authorised signatory of
 
each other
 
Obligor which
 
is party
 
to any
 
of the
 
Original
Security Documents
 
required to
 
be executed
 
at or
 
before
 
the Utilisation
 
Date, certifying
 
that
each copy document
 
relating to it
 
specified in Part
 
1 of this
 
Schedule remains correct, complete
and in
 
full force
 
and effect
 
as at
 
a date
 
no earlier
 
than a
 
date approved
 
for this
 
purpose and
that any resolutions
 
or power of
 
attorney referred
 
to in Part
 
1 of this
 
Schedule in
 
relation to it
have not been revoked or amended.
 
2
 
Security
(a)
 
The Mortgage and
 
the Deed of
 
Covenant or,
 
as the case
 
may be, the General
 
Assignment in
respect of each Ship duly executed by the relevant Owner.
 
(b)
 
If a Ship is
 
subject to a Charter, the relevant Charter Assignment duly
 
executed by the relevant
Owner.
(c)
 
A
 
Manager's
 
Undertaking
 
in
 
respect
 
of
 
each
 
Ship
 
pursuant
 
to
 
the
 
Finance
 
Documents
 
duly
executed by each manager of the Relevant Ship.
(d)
 
Duly executed notices
 
of assignment and
 
acknowledgements of
 
those notices as
 
required by
any of the above Security Documents.
 
3
 
Registration of Ship
Evidence that each Ship:
(a)
 
is legally
 
and beneficially owned
 
by the
 
relevant Owner and
 
permanently registered in
 
the name
of the
 
relevant Owner
 
free from
 
any Security
 
Interests (other
 
than Security
 
Interests created
under the Finance Documents and Permitted Maritime Liens) through the relevant Registry as
a ship under the laws and flag of the relevant Flag State;
(b)
 
is
 
classed
 
with
 
the
 
relevant
 
Classification
 
free
 
of
 
all
 
overdue
 
requirements
 
and
recommendations of the relevant Classification Society;
(c)
 
is insured in the manner required by the Finance Documents;
 
and
(d)
 
is free of
 
any charter commitment
 
which would require
 
approval under the
 
Finance Documents.
 
4
 
Mortgage registration
Evidence that
 
the Mortgage
 
in respect
 
of
each Ship
 
has been
 
permanently
 
registered against
 
that
Ship through the relevant Registry under the laws and flag
 
of the relevant Flag State.
5
 
Existing Indebtedness
(a)
 
Evidence in all respects
 
satisfactory to the
 
Agent that the Existing
 
Indebtedness has been,
 
or
will be,
 
immediately following
 
the Utilisation,
 
repaid in
 
full, together
 
with interest
 
thereon and
together with any other
 
amounts in relation to
 
it owing by any Obligors,
 
and that any undrawn
or available commitments in relation to it have been cancelled.
(b)
 
Evidence that all Security
 
Interests created by any
 
Obligors over or in
 
relation to each Ship
 
in
respect of
 
the Existing
 
Indebtedness have
 
been discharged
 
and that the
 
Obligors have
 
been
released from their obligations or liabilities in relation to
 
the Existing Indebtedness.
6
 
Legal opinions
(a)
 
A legal opinion of Norton
 
Rose Fulbright LLP Greece
 
addressed to the Arranger,
 
the Security
Agent, the Agent and the Original
 
Lenders on matters of English law,
 
substantially in the form
approved by the Agent.
 
(b)
 
A legal
 
opinion
 
of the
 
legal
 
advisers
 
to the
 
Arranger,
 
the
 
Security
 
Agent,
 
the
 
Agent
 
and
 
the
Original
 
Lenders
 
in
 
each
 
jurisdiction
 
in
 
which
 
an
 
Obligor
 
is
 
incorporated
 
and/or
 
registered
and/or
 
which
 
is
 
or
 
is
 
to
 
be
 
the
 
Flag
 
State
 
of
 
a
 
Ship,
 
or
 
in
 
which
 
an
 
Account
 
opened
 
at
 
the
relevant time is established,
 
substantially in the form approved by the Agent.
 
7
 
Insurance
In relation to each of the Insurances of the Ships:
(a)
 
an opinion from insurance consultants appointed by the
 
Agent on such Insurances;
(b)
 
evidence that
 
such Insurances
 
have been
 
placed
 
in accordance
 
with clause
 
(
Insurance
);
and
(c)
 
evidence that approved
 
brokers, insurers and/or
 
associations have issued
 
or will issue letters
of undertaking in
 
favour of the
 
Security Agent in
 
an approved form in
 
relation to the Insurances.
 
8
 
ISM and ISPS Code
Copies of:
(a)
 
the document of compliance issued in accordance with the ISM Code to the person who is the
operator of each Ship for the purposes of that code;
(b)
 
the safety management
 
certificate in respect
 
of each Ship
 
issued in accordance
 
with the ISM
Code;
(c)
 
the international ship security certificate in respect of each
 
Ship issued under the ISPS Code;
 
(d)
 
if so requested by the Agent, any other certificates
 
issued under any applicable code required
to be observed by each Ship or in relation to its operation under
 
any applicable law; and
(e)
 
the Inventory of Hazardous Material for each Ship.
9
 
Value of security
 
One valuation of
 
the Ships (dated
 
not more than
 
30 days before
 
the Utilisation)
 
by an approved
 
valuer
made (at the
 
cost of
 
the Borrowers)
 
in accordance with
 
clause
 
(
Minimum security
 
value
) in form
and substance acceptable to the Agent.
10
 
Fees and expenses
Evidence that the fees,
 
commissions, costs and
 
expenses then due
 
from the Borrowers
 
pursuant to
clause
(Fees)
, any Fee Letter, clause
(Costs and expenses)
 
and
 
(
Mortgagee’s insurance
)
have been paid or will be paid by the Utilisation Date.
 
11
 
Environmental matters
Copies of:
(a)
 
each
 
Ship’s
 
certificate
 
of
 
financial
 
responsibility
 
and
 
vessel
 
response
 
plan
 
required
 
under
United States law and evidence of their approval by
 
the appropriate United States government
entity; and
(b)
 
the Inventory of Hazardous Material for each Ship.
12
 
Management Agreement
Where a manager
 
of a Ship
 
has been approved
 
in accordance with
 
clause
(Manager)
, a copy,
certified
 
by
 
an
 
approved
 
person
 
to
 
be
 
a
 
true
 
and
 
complete
 
copy,
 
of
 
the
 
agreement
 
between
 
the
relevant Owner and the manager relating to the appointment
 
of the manager.
 
13
 
Process agent
Evidence that
 
any process
 
agent referred
 
to in
 
clause
 
(
Service of
 
process
) or
 
any equivalent
provision
 
of
 
any
 
other
 
Finance
 
Document
 
entered
 
into
 
on
 
or
 
before
 
the
 
Utilisation
 
Date,
 
if
 
not
 
an
Obligor, has accepted its appointment.
14
 
Charter
 
If there is a Charter in respect of a Ship, a copy of the
 
same and any relevant Charter Documents.
15
 
Inspection
If required by the Agent, an inspection of each Ship carried out
 
by surveyors appointed by the Agent
and a report prepared by such surveyors, following such inspection evidencing
 
that each Ship is in a
condition in all respects
 
acceptable to the Agent
 
(each such inspection
 
and report to be
 
prepared at
the cost of the Borrowers who will facilitate each such inspection
 
by the surveyors).
16
 
Minimum balances
The Owners maintain
 
sufficient credit
 
balances in the
 
Earnings Accounts such
 
that the Obligors
 
are
in compliance with clause
 
(
Minimum liquidity
) in respect
 
of each Ship
 
and its Earnings Account.
17
 
Other documents
Any other documents as may be requested by the Agent.
Schedule 4
 
Utilisation Request
From:
 
Bikini Shipping Company Inc.
Jabat Shipping Company Inc.
Tuvalu Shipping Company Inc.
Kaben Shipping Company Inc.
Taroa
 
Shipping Company Inc.
Gala Properties Inc.
Rairok Shipping Company Inc.
Fayo Shipping Company Inc.
Lae Shipping Company Inc.
and
 
Namu Shipping Company Inc.
To:
DNB Bank ASA
Dated:
 
[
l
]
Dear Sirs
$100,000,000
Facility Agreement dated [
l
] (the Facility Agreement)
1
 
We
 
refer
 
to
 
the
 
Facility
 
Agreement.
 
This
 
is
 
a
 
Utilisation
 
Request.
 
Terms
 
defined
 
in
 
the
 
Facility
Agreement have
 
the same
 
meaning in
 
this Utilisation
 
Request unless
 
given a
 
different
 
meaning
 
in
this Utilisation Request.
 
2
 
We wish to borrow the Loan on the following
 
terms:
Proposed Utilisation Date (or,
 
if that is not a Business Day,
 
the Next Business Day) [
l
]
3
 
We confirm
 
that each condition
 
specified in clause
(Further conditions
 
precedent)
 
of the Facility
Agreement is satisfied on the date of this Utilisation Request.
 
4
 
The Loan will be made available
 
to refinance the Existing Indebtedness
 
[and its proceeds should be
credited to [
l
] [
specify account
]].
 
5
 
We request that the first Interest Period for the
 
Loan to end on [
l
].
6
 
This Utilisation Request is irrevocable.
 
Yours faithfully
…………………………………
authorised signatory for
BIKINI SHIPPING COMPANY
 
INC.
JABAT SHIPPING
 
COMPANY INC.
TUVALU SHIPPING
 
COMPANY INC.
KABEN SHIPPING COMPANY
 
INC.
TAROA SHIPPING
 
COMPANY INC.
GALA PROPERTIES INC.
RAIROK SHIPPING COMPANY
 
INC.
FAYO
 
SHIPPING COMPANY
 
INC.
LAE SHIPPING COMPANY
 
INC.
and
 
NAMU SHIPPING COMPANY
 
INC.
Schedule 5
 
Selection Notice
From:
 
Bikini Shipping Company Inc.
Jabat Shipping Company Inc.
Tuvalu Shipping Company Inc.
Kaben Shipping Company Inc.
Taroa
 
Shipping Company Inc.
Gala Properties Inc.
Rairok Shipping Company Inc.
Fayo Shipping Company Inc.
Lae Shipping Company Inc.
and
 
Namu Shipping Company Inc.
To:
DNB Bank ASA
Dated:
 
[
l
]
Dear Sirs
$100,000,000
Facility Agreement dated [
l
] (the Facility Agreement)
1
 
We refer to
 
the Facility
 
Agreement. This is
 
a Selection
 
Notice. Terms defined in the
 
Facility Agreement
have the
 
same meaning
 
in this
 
Selection
 
Notice unless
 
given a
 
different
 
meaning in
 
this Selection
Notice.
 
2
 
We request that the next Interest Period for the
 
Loan be [●] Months.
 
3
 
This Selection Notice is irrevocable.
 
Yours faithfully
……………………………………………………………..
 
authorised signatory for
BIKINI SHIPPING COMPANY
 
INC.
JABAT SHIPPING
 
COMPANY INC.
TUVALU SHIPPING
 
COMPANY INC.
KABEN SHIPPING COMPANY
 
INC.
TAROA SHIPPING
 
COMPANY INC.
GALA PROPERTIES INC.
RAIROK SHIPPING COMPANY
 
INC.
FAYO
 
SHIPPING COMPANY
 
INC.
LAE SHIPPING COMPANY
 
INC.
and
 
NAMU SHIPPING COMPANY
 
INC.
Schedule 6
 
Form of Transfer Certificate
To:
 
[
l
] as Agent
From: [
The Existing Lender
] (the
Existing Lender
) and [
The New Lender
] (the
New Lender
)
Dated:
$100,000,000 Facility Agreement dated [
l
] (the Facility Agreement)
1
 
We refer to the Facility Agreement.
 
This agreement (the
Agreement
) shall take effect as a Transfer
Certificate for the purposes of the Facility Agreement.
 
Terms
 
defined in the Facility Agreement have
the same meaning in this Agreement unless given a different
 
meaning in this Agreement.
 
2
 
We refer to clause
(Procedure available for assignment)
 
of the Facility Agreement:
(a)
 
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender
under
 
the
 
Facility
 
Agreement
 
and
 
the
 
other
 
Finance
 
Documents
 
which
 
correspond
 
to
 
that
portion of
 
the Existing
 
Lender’s Commitment
 
and participation
 
in the
 
Loan under
 
the Facility
Agreement as specified in the Schedule.
 
(b)
 
The Existing
 
Lender is
 
released from
 
the obligations
 
owed by
 
it which
 
correspond to that
 
portion
of the
 
Existing Lender’s
 
Commitment and
 
participation in
 
the Loan
 
under the
 
Facility Agreement
specified
 
in
 
the
 
Schedule
 
(but
 
the
 
obligations
 
owed
 
by
 
the
 
Obligors
 
under
 
the
 
Finance
Documents shall not be released).
 
(c)
 
On the
 
Transfer Date the
 
New Lender
 
becomes a
 
Party as
 
a Lender
 
and is
 
bound by
 
obligations
equivalent to those from which the Existing Lender is released under
 
paragraph
 
above.
 
(d)
 
The proposed Transfer Date is [●].
 
(e)
 
The Facility Office and address,
 
fax number and attention
 
details for notices of
 
the New Lender
for
 
the
 
purposes
 
of
 
clause
(Addresses)
 
of
 
the
 
Facility
 
Agreement
 
are
 
set
 
out
 
in
 
the
Schedule.
 
3
 
The New Lender expressly acknowledges the limitations
 
on the Existing Lender's obligations set out
in clause
 
(Limitation of responsibility of Existing Lenders)
 
of the Facility Agreement.
4
 
The New Lender confirms that it [is]/[is not] a Guarantor
 
Affiliate.
5
 
This Agreement acts
 
as notice to
 
the Agent (on
 
behalf of each
 
Finance Party) and,
 
upon delivery in
accordance with clause
(Copy of Transfer Certificate to Borrowers)
, to the Borrowers (on behalf
of each Obligor) of the assignment referred to in this Agreement.
 
6
 
This Agreement
 
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 this Agreement.
 
7
 
This Agreement and any non-contractual obligations connected
 
with it are governed by English law.
 
8
 
This Agreement has been entered into on the date stated at
 
the beginning of this Agreement.
 
Note: The execution of this
 
Transfer Certificate may not assign a
 
proportionate share of the Existing
Lender's interest
 
in the
 
Security Documents
 
in all
 
jurisdictions.
 
It is
 
the responsibility
 
of the
 
New
Lender
 
to
 
ascertain
 
whether
 
any
 
other
 
documents
 
or
 
other
 
formalities
 
are
 
required
 
to
 
perfect
 
an
assignment of such
 
a share in the
 
Security Documents in
 
any jurisdiction and,
 
if so, to arrange
 
for
execution of those documents and completion of those formalities.
 
The Schedule
Rights to be assigned and obligations to be released
 
and undertaken
[insert relevant details]
[Facility
 
Office
 
address,
 
fax
 
number
 
and
 
attention
 
details
 
for
 
notices
 
and
 
account
 
details
 
for
payments.]
[Existing Lender] [New
 
Lender]
By:
 
By:
This Agreement is
 
accepted by
 
the Agent
 
as a
 
Transfer Certificate for
 
the purposes of
 
the Facility
 
Agreement
and the Transfer Date is confirmed as [
l
].
 
Signature of
 
this Agreement
 
by the
 
Agent constitutes
 
confirmation by
 
the Agent
 
of receipt
 
of notice
 
of the
assignment referred to herein, which notice the Agent receives
 
on behalf of each Finance Party.
 
[
Agent
]
By:
Schedule 7
 
Form of Compliance Certificate
To:
 
DNB Bank ASA as Agent
From: Diana Shipping Inc. as Guarantor
Dated: [
l
]
Dear Sirs
$100,000,000
Facility Agreement dated [
l
]
(the
Facility Agreement
)
1
 
I/We refer
 
to the
 
Facility Agreement.
 
This is
 
a Compliance
 
Certificate. Terms
 
defined in
 
the Facility
Agreement have the same
 
meaning when used in
 
this Compliance Certificate unless given
 
a different
meaning in this Compliance Certificate.
 
2
 
I/We confirm that: [
l
]
3
 
We confirm that, as at the end of the Measurement
 
Period ended on [30 June] [31 December] [
l
]:
 
(a)
Cash
: the Group’s Cash is $[
l
], compared against a minimum required amount of $[
l
].
(b)
Market Value Adjusted Net Worth
: the Market Value Adjusted Net Worth was $[
l
] compared
against a minimum required amount of $150,000,000.
(c)
Equity
:
 
the
 
ratio
 
of
 
Market
 
Value
 
Adjusted
 
Net
 
Worth
 
to
 
Total
 
Assets
 
was
 
[
l
]
 
percentage,
compared against a minimum required percentage of 25%.
4
 
We confirm that the Security Value
 
is $[
l
], compared against a Minimum Value
 
of $[
l
].
 
5
 
[I/We confirm that there is no Change of Control].
6
 
[I/We
 
confirm
 
that
 
no
 
[Event
 
of]
 
Default
 
is
 
continuing.]
 
[
If
 
this
 
statement
 
cannot
 
be
 
made,
 
the
certificate should identify any [Event of] Default that is continuing and the steps, if any, being
taken to remedy it
.]
Signed by:
……………………………………………………
[Chief Financial Officer]
DIANA SHIPPING INC.
 
Schedule 8
 
Sustainability Margin Adjustment
1
In this
Annex VI:
Shall have the meaning given to it in clause
 
(
Poseidon principles
).
Concluded
Trainings:
 
In
 
any
 
given
 
calendar
 
year,
 
means
 
the
 
number
 
of
 
successfully
 
concluded
(electronic
 
record
 
provided
 
by
 
Seagull
 
Maritime
 
AS,
 
part
 
of
 
OCEAN
Technologies
 
Group)
 
ECBT
 
on
 
board
 
Training
 
Eligible
 
Vessels
 
through
 
the
learnings
 
and
 
assessment
 
platform
 
of
 
a
 
certified
 
maritime
 
training
 
provider
(such
 
as
 
Seagull
 
Maritime
 
AS,
 
part
 
of
 
OCEAN
 
Technologies
 
Group)
 
during
that year.
ECBT:
E-learning
 
computer
 
based
 
training
 
(ECBT)
 
of
 
Fleet
 
seafarers
 
through
 
the
learning
 
and
 
assessment
 
platform
 
of
 
-Seagull
 
Maritime
 
AS,
 
part
 
of
 
OCEAN
Technologies
 
Group
 
(certified
 
as
 
Maritime
 
Training
 
Provider
 
by
 
DNV
attached).
 
ECBT
 
includes,
 
among
 
others,
 
the
 
following
 
e-learning
 
trainings
targeted for dry-bulk carriers:
•
 
MARPOL (Various
 
topics);
•
 
Ship Energy Efficiency;
•
 
ISO 14001 Environmental Management;
•
 
Ballast water management;
•
 
Marine environmental awareness;
•
 
Hatch cover maintenance and operation;
•
 
Cyber security awareness;
•
 
Marine environmental awareness, Environmental challenges;
•
 
Marine environmental awareness, Sustainable shipping;
•
 
Green Passport;
•
 
Loading and unloading of bulk cargoes;
•
 
Leadership, Shipboard personnel management and training.
Fleet:
Shall mean all
 
vessels that
 
are managed by
 
Diana Shipping
 
Services S.A.
 
of
Panama.
Fleet AER Score:
Shall mean the average efficiency ratio of the Fleet
Σ
Ci
AER
= _______________
Σ(DWT
i
 
x D
i
)
Where Ci is the total carbon emissions for
 
the running year for vessel i , DWT
is the nominal
 
deadweight of vessel
 
i and Di
 
is the total
 
distance travelled for
the running year for vessel i,
 
calculated by reference to the relevant Statement of Compliance.
Fleet Vessel:
Shall mean any vessel in the Fleet.
Key
 
Performance
 
Indicators:
 
Means any of Key Performance Indicator 1 or Key Performance
 
Indicator 2.
Key Performance
 
Indicator 1:
Means Fleet AER Score.
Key
 
Performance
 
Indicator 2:
 
Means Safety ECBT Score.
Poseidon
Principles:
Shall have the meaning given to it in clause
 
(b) (
Poseidon principles
).
Recognised
 
Organization:
Shall
 
mean,
 
in
 
respect
 
of
 
a
 
Fleet
 
Vessel,
 
an
 
organisation
 
representing
 
that
Fleet Vessel’s
 
flag state and, for
 
the purposes of Schedule
 
8, duly authorised
to
 
determine
 
whether
 
the
 
owner
 
of
 
such
 
Fleet
 
Vessel
 
has
 
complied
 
with
regulation 22A of Annex Vl.
Safety ECBT Score:
 
Means the ratio of Concluded Trainings
 
over Total
 
Seafarers.
Statement of
 
Compliance
Shall mean the certificate(s) from
 
a Recognised Organization relating
 
to each
Fleet
 
Vessel
 
and
 
a
 
calendar
 
year
 
setting
 
out
 
the
 
AER
 
of
 
a
 
Vessel
 
for
 
all
voyages performed
 
by it
 
over that
 
calendar year
 
using ship
 
fuel oil
 
consumption
data required to be collected and reported in accordance
 
with Regulation 22A
of Annex VI in respect of that calendar
 
year.
Sustainability
Certificate:
Shall mean a certificate signed by
 
the Chief Financial Officer of the Guarantor,
substantially
 
in
 
the
 
form
 
set
 
out
 
in
 
Schedule
 
9
 
(
Form
 
of
 
the
 
Sustainability
Certificate
),
 
that
 
shows
 
the
 
calculation
 
of
 
the
 
Fleet
 
AER
 
Score
 
and
 
the
 
Key
Performance Indicators and sets forth the Sustainability
 
Margin Adjustment.
Total Seafarers:
 
Shall
 
mean
 
the
 
total
 
number
 
of seaf
 
arers
 
serving
 
on
 
board Training
 
Eligible
Vessels.
Training Eligible
 
Vessels:
 
In any given year,
 
means Fleet Vessels
 
that are managed
 
by Diana Shipping
Services S.A. of Panama for more than 180 days during that
 
year.
Vessel AER:
 
Shall mean the average efficiency ratio of a Fleet Vessel as calculated per the
Poseidon Principles as follows:
Σ
Ci
AER
=_______________
ΣDWT x D
i
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Where
 
C
i
is
 
the
 
carbon
 
emissions
 
for
 
voyage
 
i
 
computed
 
using
 
the
 
fuel
consumption
 
and
 
carbon
 
factor
 
of
 
each
 
type
 
of
 
fuel,
 
DWT
 
is
 
the
 
design
deadweight of
 
that Fleet
 
Vessel,
 
and D
i
is the
 
distance travelled
 
on voyage
i
.
The AER is
computed for all voyages performed over a calendar year.
2
Pursuant to
 
clause 9.5
 
(
Sustainability Margin
 
Adjustment
), the
 
Sustainability Margin
 
Adjustment will
apply as follows:
Key Performance
Indicators
Baseline
2022
2023
2024
2025
2026
2027
2028
Key
 
Performance
 
Indicator 1: (Fleet AER
Score)
3.00
Targets
2.94
2.87
2.81
2.74
2.66
2.57
Key
 
Performance
 
Indicator 2: (Safety
 
ECBT
Score)
14.05
Targets
14.26
14.48
14.69
14.91
15.14
15.36
Schedule 9
 
Form of Sustainability Certificate
To:
 
[
l
] as Agent and Sustainability Co-ordinator (for and
 
on behalf of the Finance Parties)
From: DIANA SHIPPING INC.
Dated:
 
[
l
]
Dear Sirs
$100,000,000
Facility Agreement dated [
l
] 2023 (the Agreement)
1
We refer to
 
the Agreement. This
 
is a
 
Sustainability Certificate. Terms defined in the
 
Agreement have
the same meaning
 
when used
 
in this Sustainability
 
Certificate unless
 
given a different
 
meaning in
this Sustainability Certificate.
2
We confirm that, as at the date hereof:
(a)
 
the calculation of the
 
Fleet AER Score for the prior
 
calendar year ended [31 December
202][●], is as follows:
[●];
 
(b)
 
the calculation
 
of Key
 
Performance
 
Indicator
 
1 for
 
the
 
relevant calendar
 
year
 
ended
[31 December 202][●], is as follows:
[●];
 
(c)
 
the calculation
 
of Key
 
Performance
 
Indicator
 
2 for
 
the
 
relevant calendar
 
year
 
ended
[31 December 202][●], is as follows:
[●];
 
and
(d)
 
accordingly, the Sustainability
 
Margin Adjustment effective on [
l
] 20[
l
] is as follows:
 
[●].
Signed by:
........................................................
 
Chief Financial Officer of
 
DIANA SHIPPING INC.
Schedule 10
 
Forms of Noticeable Debt Purchase Transaction Notice
 
Form of Notice on Entering into Notifiable Debt Purchase Transaction
Part I
To:
 
DNB Bank ASA as Agent
From: [The Lender], a company incorporated in [insert jurisdiction of incorporation] with
 
limited liability
Dated: [
l
]
$100,000,000
Facility Agreement dated [
l
] (the Facility Agreement)
1
 
We refer
 
to clause
Disenfranchisement of Guarantor
 
Affiliates
) of
 
the Facility
 
Agreement.
 
Terms
defined
 
in
 
the
 
Facility
 
Agreement
 
have
 
the
 
same
 
meaning
 
in
 
this
 
notice
 
unless
 
given
 
a
 
different
meaning in this notice.
2
 
We have entered into a Notifiable Debt Purchase
 
Transaction.
3
 
The Notifiable Debt Purchase
 
Transaction referred to
 
in paragraph 2 above relates
 
to the amount of
our Commitment as set out below.
Amount
 
of
 
our
 
Commitment
 
to
which
 
Notifiable
 
Debt
 
Purchase
Transaction relates:
[insert
 
amount
 
(of
 
that
 
Commitment)
 
to
 
which
 
the
relevant Debt Purchase Transaction
 
applies]
[
Lender
]
By:
 
 
Part II
Form of Notice on Termination
 
of Notifiable Debt Purchase Transaction
 
/
Notifiable Debt Purchase Transaction
 
ceasing to be with Guarantor Affiliate
To:
 
DNB Bank ASA as Agent
From: [The Lender], a company incorporated in [insert jurisdiction of incorporation] with
 
limited liability
Dated: [
l
]
$100,000,000
Facility Agreement dated [
l
] (the Facility Agreement)
1
 
We refer
 
to clause
Disenfranchisement of Guarantor
 
Affiliates
) of
 
the Facility
 
Agreement.
 
Terms
defined
 
in
 
the
 
Facility
 
Agreement
 
have
 
the
 
same
 
meaning
 
in
 
this
 
notice
 
unless
 
given
 
a
 
different
meaning in this notice.
2
 
A Notifiable
 
Debt Purchase Transaction which
 
we entered into
 
and which we
 
notified you of
 
in a
 
notice
dated [
l
] has [terminated]/ [ceased to be with a Guarantor Affiliate].
3
 
The Notifiable Debt Purchase
 
Transaction referred to
 
in paragraph 2 above relates
 
to the amount of
our Commitment as set out below.
4
 
Amount of our Commitment to which Notifiable Debt Purchase
 
Transaction relates:
 
[insert
 
amount
(of that Commitment) to which the relevant Debt Purchase
 
Transaction applies]
[
Lender
]
By:
SIGNATURES
THE BORROWERS
BIKINI SHIPPING COMPANY
 
INC.
By:
 
.............................................................
JABAT SHIPPING
 
COMPANY INC.
By:
 
.............................................................
TUVALU SHIPPING
 
COMPANY INC.
By:
 
.............................................................
KABEN SHIPPING COMPANY
 
INC.
By:
 
.............................................................
TAROA SHIPPING
 
COMPANY INC.
By:
 
.............................................................
GALA PROPERTIES INC.
By:
 
.............................................................
RAIROK SHIPPING COMPANY
 
INC.
By:
 
.............................................................
FAYO
 
SHIPPING COMPANY
 
INC.
By:
 
.............................................................
LAE SHIPPING COMPANY
 
INC.
By:
 
.............................................................
NAMU SHIPPING COMPANY
 
INC.
By:
 
.............................................................
THE GUARANTOR
DIANA SHIPPING INC.
By:
 
.............................................................
THE ARRANGER
DNB (UK) LTD.
By:
 
.............................................................
THE AGENT
DNB BANK ASA
By:
 
.............................................................
THE SECURITY AGENT
DNB BANK ASA
By:
 
.............................................................
THE LENDERS
DNB (UK) LTD.
By:
 
.............................................................
THE HEDGING PROVIDER
DNB BANK ASA
By:
 
.............................................................
THE SUSTAINABILITY
 
CO-ORDINATOR
DNB BANK ASA
By:
 
.............................................................