EX-4.13 20 exhibit413.htm EX-4.13
Dated [
●
] 2024
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
INC.
EJITE SHIPPING COMPANY INC.
GUAM SHIPPING COMPANY INC.
PALAU SHIPPING COMPANY
INC.
as joint and several Borrowers
and
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1
as Lenders
and
NORDEA BANK ABP
as Swap Bank
and
NORDEA BANK ABP,
FILIAL I NORGE
as Agent, Bookrunner, Security Trustee
and Lead Arranger
LOAN AGREEMENT
relating to
relating to a term loan facility of up to $167,263,025
Index
Clause
Page
1
Interpretation
..............................................................................................................................
2
2
Facility .......................................................................................................................................25
3
Position of the Lenders, the Swap Bank and the Majority Lenders
..........................................25
4
Drawdown .................................................................................................................................27
5
Interest ......................................................................................................................................28
6
Interest Periods .........................................................................................................................30
7
Changes to the Calculation of Interest
......................................................................................30
8
Repayment and Prepayment ....................................................................................................32
9
Conditions Precedent
................................................................................................................34
10
Representations and Warranties ..............................................................................................35
11
General Undertakings ...............................................................................................................39
12
Corporate Undertakings
............................................................................................................44
13
Insurance
...................................................................................................................................45
14
Ship Covenants
..........................................................................................................................51
15
Security Cover ...........................................................................................................................58
16
Payments and Calculations .......................................................................................................61
17
Application of Receipts
..............................................................................................................63
18
Application of Earnings..............................................................................................................64
19
Events of Default .......................................................................................................................65
20
Fees and Expenses
.....................................................................................................................71
21
Indemnities
................................................................................................................................72
22
No Set-off or Tax
Deduction
......................................................................................................75
23
Illegality and sanctions affecting a lender
.................................................................................78
24
Increased Costs .........................................................................................................................79
25
Set off ........................................................................................................................................81
26
Transfers
and Changes in Facility Offices
..................................................................................82
27
Variations and waivers ..............................................................................................................86
28
Notices
.......................................................................................................................................89
29
Joint and Several Liability
..........................................................................................................92
30
Supplemental ............................................................................................................................93
31
Bail-In
.........................................................................................................................................93
32
Law and Jurisdiction
..................................................................................................................94
Schedules
Schedule 1 Lenders and Commitments
..................................................................................................96
Schedule 2 Drawdown Notice ................................................................................................................97
Schedule 3 Condition Precedent Documents
.........................................................................................99
Part A ..............................................................................................................................................
99
Part B ............................................................................................................................................
101
Schedule 4 Transfer Certificate ............................................................................................................103
Schedule 5 Designation Notice
.............................................................................................................107
Schedule 6 Selection Notice
.................................................................................................................109
Execution
Execution Pages
....................................................................................................................................111
THIS AGREEMENT
is made on [
●
] 2024
PARTIES
(1)
MANRA
SHIPPING
COMPANY
INC.
,
JABWOT
SHIPPING
COMPANY
INC.
,
ARORAE
SHIPPING
COMPANY
INC.
,
TAMANA
SHIPPING COMPANY
INC.
,
BERU SHIPPING COMPANY
INC.
,
BONRIKI
SHIPPING COMPANY
INC.
,
TAONGI
SHIPPING COMPANY
INC.
,
EJITE SHIPPING
COMPANY
INC.,
GUAM
SHIPPING
COMPANY
INC.,
and
PALAU
SHIPPING
COMPANY
INC.
as
joint
and
several
borrowers (collectively,
the "
Borrowers
")
(2)
THE BANKS AND FINANCIAL INSTITUTIONS
listed in
Schedule 1
, as Lenders
(3)
NORDEA BANK ABP,
as Swap Bank
(4)
NORDEA BANK ABP,
FILIAL I NORGE,
as Agent
(5)
NORDEA BANK ABP,
FILIAL I NORGE,
as Bookrunner
(6)
NORDEA BANK ABP,
FILIAL I NORGE,
as Lead Arranger
(7)
NORDEA BANK ABP,
FILIAL I NORGE,
as Security Trustee
BACKGROUND
(A)
The Lenders have agreed to
make available to
the Borrowers,
on a joint and several basis,
a term
loan facility of
up to
the lesser
of (i)
$167,263,025 and
(ii) 60%
of the aggregate
Initial Market Value
of the Ships, for the purpose of re-financing the Existing Indebtedness.
(B)
The Swap Bank has agreed to
enter into interest
rate swap transactions
with the Borrowers from
time to time to
hedge the Borrowers' exposure under
this Agreement to interest rate fluctuations.
(C)
The Lenders and
the Swap Bank
have agreed
to share pari
passu in the
security to be
granted to
the Security Trustee pursuant to this Agreement.
OPERATIVE
PROVISIONS
1
INTERPRETATION
1.1
Definitions
Subject to Clause
1.4
(
General interpretation
), in this Agreement:
"
Accounts Pledges
" means,
together,
the Earnings
Account Pledges
in the
Agreed Form
and, in
the singular, means any of them.
"
Agency and
Trust Deed
" means
the agency
and trust
deed dated
the same
date as
this Agreement
and made between the same parties.
"
Agent
"
means
Nordea
Bank
Abp,
filial
i
Norge,
acting
in
such
capacity
through
its
office
at
Essendrops
gate
7,
Postboks
1166,
Sentrum,
0107
Oslo,
920058817
MVA,
Norway,
or
any
successor of it appointed under clause 5 of the Agency and Trust Deed.
"
Agreed Form
" means in
relation to any
document, that
document in the
form approved in
writing
by the Agent
(acting on
the instructions of
all the Lenders)
or as otherwise
approved in accordance
with any other approval procedure specified in any relevant provision of any Finance Document.
"
Annex VI
" means
Annex VI
of the
Protocol
of 1997
to amend
the International
Convention
for
the Prevention of Pollution
from Ships 1973 (Marpol),
as modified by
the Protocol of 1978
relating
thereto.
"
Arorae
" means Arorae Shipping
Company Inc., a corporation
incorporated and existing under
the
laws
of
the
Republic
of
the
Marshall
Islands
whose
registered
address
is
at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Approved
Broker
"
means
Arrow
Sale
&
Purchase
(UK)
Limited,
Breamar
Seascope
Limited,
H.
Clarkson
&
Company
Limited,
Fearnleys
AS,
Maersk
Brokers
K.S.,
Simpson
Spence
&
Young
(London)
Ltd.
and
VesselsValue.Com
or
any
other
any
reputable
sale
and
purchase
broker
approved and appointed by the Agent subject to the prior written consent of the Borrowers.
"
Approved
Flag
" means
the Marshall
Islands flag
or any
other flag
that the
Agent may
approve
that the Ship is registered (such approval not to be unreasonably withheld or delayed).
"
Approved Flag State
" means the Republic of the Marshall Islands or any other
state in which the
Agent may,
at the request of
the Borrowers, approve
that a Ship is
registered (such approval
not
to be unreasonably withheld or delayed).
"
Approved Manager
" means, in relation to each Ship:
(a)
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
offices at 16
& 18 Pendelis
Street, 175 64,
Palaio Faliro, Greece; or
(b)
in relation to any Ship in respect of which the
relevant Borrower exercises its rights
under
Clause
14.24
(
Change of Approved Manager
), Diana Wilhelmsen Management Limited,
a
company
incorporated
and existing
under the
laws of
the Republic
of Cyprus
having
its
registered office
at 21 Vasili
Michailidi Street, 3026
Limassol, Cyprus and
maintaining an
office at 350 Syngrou Avenue, Kalithea, Greece; or
(c)
any other company which the Agent may,
with the authorisation of the Lenders, approve
from
time
to
time
as
the
technical
and/or
commercial
manager
of
each
Ship
(such
approval not to be unreasonably withheld or delayed).
"
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.
"
Authorisation
" means an authorisation, consent, approval, resolution, licence,
exemption, filing,
notarisation, legalisation or registration.
"
Availability Period
" means the
period commencing
on the date
of this Agreement
and ending
on:
(a)
8 August 2024 (or
such later date as the
Agent may, with the authorisation of
the Lenders,
agree with the Borrowers); or
(b)
if
earlier,
the
date
on
which
the
Total
Commitments
are
fully
borrowed,
cancelled
or
terminated.
"
Bail-In Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In Legislation
" means:
(a)
in
relation
to
an
EEA
Member
Country
which
has
implemented,
or
which
at
any
time
implements, Article 55 BRRD, the relevant implementing
law or regulation as described in
the EU Bail-In Legislation Schedule from time to time;
(b)
in relation to any state other than such
an EEA Member Country and
the United Kingdom,
any analogous law or regulation from time
to time which requires contractual recognition
of any Write-down and Conversion Powers contained
in that law or regulation; and
in relation to the United Kingdom, the UK Bail
-In Legislation.
"
Balloon
Instalment
"
means
any
balloon
instalment
referred
to
in
Clause
8.1
(
Amount
of
repayment instalments
).
"
Basel III
" 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".
"
Beru
" means
Beru Shipping
Company Inc.,
a corporation
incorporated and existing
under the
laws
of the
Republic of
the Marshall
Islands whose
registered
address is
at Trust
Company Complex,
Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Bonriki
" means
Bonriki Shipping
Company
Inc., a
corporation
incorporated
and existing
under
the laws
of
the Republic
of the
Marshall
Islands whose
registered
address
is at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Bookrunner
" means Nordea Bank Abp,
filial i Norge, acting in
such capacity through its office
at
Essendrops gate 7, Postboks 1166,
Sentrum, 0107 Oslo,
920058817 MVA,
Norway.
"
Borrower
" means
each of
Manra,
Jabwot, Arorae,
Tamana,
Beru, Bonriki,
Taongi,
Ejite,
Guam
and Palau and in the plural means, all of them.
"
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
an Unpaid Sum
to the
last day
of the
current Interest Period in
relation to the
Loan, the relevant
part of
the Loan or
that 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
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
the current Interest Period.
"
Business
Day
"
means
a
day
(other
than
a
Saturday
or
Sunday)
on
which
banks
are
open
for
general business in London, Athens and Oslo; and
(a)
New York;
and
(b)
(in relation to the fixing of an interest rate) which is a US Government Securities Business
Day.
"
Change of Control
" means the occurrence of
any of the following
acts, events or circumstances
without the prior written consent of the Agent:
(a)
a change in
the ownership of
any Borrower
from the date
of this Agreement
resulting in
such
Borrower
not being
a direct
or
indirect
wholly-owned subsidiary
of
the
Corporate
Guarantor;
and/or
(b)
the Palios
Family (either
directly or indirectly
through companies
legally and beneficially
owned)
ceases
to
own
at
least
12.5
per
cent.
of
the
common
stock
in
the
Corporate
Guarantor;
and/or
(c)
the Palios
Family (either
directly or indirectly
through companies
legally and beneficially
owned) ceases
to control at
least 25 per
cent. of
the maximum
number of
votes that might
be
cast
in
respect
of
any
matter
submitted
to
the
vote
of
the
shareholders
of
the
Corporate Guarantor;
and/or
(d)
Semiramis
Paliou
ceases
to
hold
Chief
Executive
Officer
position
in
the
Corporate
Guarantor and
active role
in the decision making
in respect of
the Corporate
Guarantor;
and/or
(e)
the shares of the Corporate Guarantor cease to be listed
on the New York Stock Exchange
or any other stock exchange acceptable to the Agent.
"
Charter
" means,
in relation
to each
Ship, any
time charter
or other
contract of
employment in
respect
of
that
Ship
with
a
duration
exceeding
(or
capable
of
exceeding)
24
months
or
any
bareboat charter in respect of such Ship and, in the plural, means all of them.
"
Charterer
" means any entity
which has entered into, or
will enter into,
a Charter with a
Borrower
in respect of the Ship owned by it.
"
Charterparty Assignment
" means,
in relation
to each
Charter,
a specific deed
of assignment
of
the
rights
of
the
Borrower
who
is
a
party
to
that
Charter
executed
or
to
be
executed
by
that
Borrower in favour
of the
Security Trustee in
the Agreed
Form and,
in the
plural, means
all of
them.
"
Code
" means the US Internal Revenue Code of 1986.
"
Commitment
" means,
in relation
to a
Lender,
the amount
set opposite
its name in
Schedule 1
,
or,
as
the
case
may
require,
the
amount
specified
in
the
relevant
Transfer
Certificate,
as
that
amount may be reduced, cancelled or terminated in accordance
with this Agreement (and "
Total
Commitments
" means the aggregate of the Commitments of all the Lenders).
"
Confirmation
"
and
"
Early
Termination
Date
",
in
relation
to
any
continuing
Designated
Transaction, have the meanings given in the Master Agreement.
"
Contractual Currency
" has the meaning given in Clause
21.4
(
Currency indemnity
).
"
Contribution
" means, in relation to a Lender, the part of the Loan which is owing to that Lender.
"
Corporate Guarantee
" means a
corporate guarantee
of the obligations
of the Borrowers
under
this Agreement, the Master Agreement and the other Finance Documents.
"
Corporate Guarantor
" mean Diana Shipping Inc., a corporation domesticated and existing under
the laws
of
the Republic
of the
Marshall
Islands whose
registered
address
is at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
CRD IV
" means:
(a)
Regulation (EU)
No 575/2013
of the
European Parliament
and of
the Council
of 26
June
2013
on
prudential
requirements
for
credit
institutions
and
investment
firms
and
amending regulation (EU) No. 648/2012,
as amended by Regulation (EU) 2019/876;
(b)
Directive 2013/36/EU of the
European Parliament and
of the Council of 26
June 2013 on
access
to
the
activity
of
credit
institutions
and
the
prudential
supervision
of
credit
institutions
and
investment
firms,
amending
Directive
2002/87/EC
and
repealing
Directives 2006/48/EC and 2006/49/EC, as amended by Directive (EU) 2019/878;
and
(c)
any other law or regulation which implements Basel III.
"
Creditor Party
" means the
Agent, the Lead
Arranger,
the Bookrunner,
the Security Trustee,
the
Swap Bank or any Lender, whether as at the date of this Agreement or at any later time.
"
Designated Transaction
" means a Transaction which fulfils the following requirements:
(a)
it is
entered into by
the Borrowers pursuant
to the
Master Agreement with
the Swap
Bank;
(b)
its purpose is the hedging
of all or part of
the Borrowers'
exposure to fluctuations in Term
SOFR under this Agreement for a period expiring no later than the Termination Date;
and
(c)
it is designated by the Borrowers, by delivery
by the Borrowers to the Agent of a notice
of
designation
in
the
form
set
out
in
Schedule
5
(
Designation
Notice
),
as
a
Designated
Transaction for the purposes of the Finance Documents.
"
Dollars
" and "
$
" means the lawful currency for the time being of the United States of America.
"
Drawdown Date
" means
the date
requested by
the Borrowers
for the
Loan to
be made,
or (as
the context requires) the date on which the Loan is actually made.
"
Drawdown Notice
" means a
notice in
the form
set out
in
Schedule 2
(
Drawdown Notice
) (or in
any other form which the Agent approves or reasonably requires).
"
Earnings
" means, in
relation to a
Ship, all moneys
whatsoever which are
now,
or later
become,
payable (actually
or contingently)
to the
Borrower owning
that Ship
or the
Security Trustee
and
which arise out of the use or operation of that Ship, including (but not limited to):
(a)
except to the extent that they fall within paragraph
(b);
(i)
all freight, hire and passage moneys;
(ii)
compensation
payable
to
a
Borrower
or
the
Security
Trustee
in
the
event
of
requisition of a Ship for hire;
(iii)
remuneration for salvage and towage services;
(iv)
demurrage and detention moneys;
(v)
damages for breach
(or payments for
variation or
termination) of
any charterparty
or other contract for the employment of a Ship; and
(vi)
all moneys which are at any
time payable under any Insurances in
respect of loss
of hire; and
(b)
if
and
whenever
a
Ship
is
employed
on
terms
whereby
any
moneys
falling
within
paragraphs
(a)(i)
to
(vi)
are pooled or
shared with any other
person, that proportion
of the
net receipts
of the
relevant pooling
or sharing
arrangement which
is attributable
to the
Ship.
"
Earnings Account
" means an
account in the
name of each
Borrower with the
Agent designated
"[
name
of the
Borrower
] -
Earnings
Account",
or
any
other
account
which
is designated
by
the
Agent as an Earnings Account for the purposes of this Agreement.
"
Earnings Account Pledge
" means, in
respect of each Earnings
Account, a deed
creating security
in the Agreed Form.
"
EEA Member Country
" means any
member state of
the European Union,
Iceland, Liechtenstein
and Norway.
"
Ejite
" means Ejite
Shipping Company Inc.,
a corporation incorporated and existing
under the laws
of the
Republic of
the Marshall
Islands whose
registered
address is
at Trust
Company Complex,
Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Environmental
Approval
"
means
any
present
or
future
permit,
ruling,
variance
or
other
Authorisation required under Environmental Law.
"
Environmental Claim
" means any claim by any
governmental, judicial or regulatory
authority or
any
other
person
which
arises
out
of
an
Environmental
Incident
or
an
alleged
Environmental
Incident or which relates to any Environmental Law and, for this
purpose, "
claim
" includes a claim
for damages, compensation, contribution, injury, fines, losses
and penalties or
any other payment
of any kind, including
in relation to clean-up and
removal, whether or not similar
to the foregoing;
an order
or direction
to take,
or not
to take,
certain action
or to
desist from
or suspend
certain
action; and any
form of
enforcement or
regulatory action,
including the arrest
or attachment
of
any asset.
"
Environmental Incident
" means:
(a)
any
release,
emission,
spill
or
discharge
of
Environmentally
Sensitive
Material
whether
within a Ship
or from
a Ship into
any other
vessel or
into or
upon the air,
water,
land or
soils (including the seabed) or surface water; or
(b)
any incident
in which
Environmentally
Sensitive Material
is released,
emitted, spilled
or
discharged into or
upon the
air, water,
land or
soils (including
the seabed)
or surface water
from
a vessel
other than
any
Ship and
which involves
a collision
between
any Ship
and
such
other
vessel
or
some
other
incident
of
navigation
or
operation,
in
either
case,
in
connection
with
which
a
Ship
is
actually
or
potentially
liable
to
be
arrested,
attached,
detained or injuncted
and/or a Ship
and/or any Borrower and/or
any operator or manager
of a
Ship is at
fault or allegedly
at fault
or otherwise liable
to any
legal or
administrative
action; or
(c)
any other
incident in
which Environmentally Sensitive
Material is
released, emitted,
spilled
or discharged
into or
upon the air,
water,
land or
soils (including the
seabed) or surface
water
otherwise
than
from
a
Ship
and
in
connection
with
which
a
Ship
is
actually
or
potentially
liable
to
be
arrested
and/or
where
any
Borrower
and/or
any
operator
or
manager
of
a
Ship
is
at
fault
or
allegedly
at
fault
or
otherwise
liable
to
any
legal
or
administrative action.
"
Environmental
Law
"
means
any
present
or
future
law
relating
to
vessel
disposal,
energy
efficiency,
carbon
reduction,
emissions,
emissions
trading,
pollution
or
protection
of
human
health or the environment,
to conditions in the
workplace, to the carriage,
generation, handling,
storage, use,
release or spillage
of Environmentally
Sensitive Material or
to actual or
threatened
releases of Environmentally Sensitive Material.
"
Environmentally Sensitive Material
" means and
includes all contaminants, oil,
oil products, toxic
substances and
any other
substance (including
any chemical,
gas or
other hazardous
or noxious
substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"
EU Bail-In
Legislation Schedule
" means
the document
described as
such and
published by
the
Loan Market Association (or any successor organisation) from time to time.
"
EU Ship Recycling Regulation
" means Regulation (EU)
No 1257/2013 of
the European Parliament
and
of
the
Council
of
20
November
2013
on
ship
recycling
and
amending
Regulation
(EC)
No
1013/2006 and Directive 2009/16/EC.
"
Event of Default
" means any of
the events or circumstances
described in Clause
19.1
(
Events of
Default
).
"
Executive Order
"
means an order issued by the president of the United States of America.
"
Existing Facility
Agreements
" means
each of
Existing Facility
Agreement A
and Existing
Facility
Agreement B.
"
Existing Facility Agreement A
" means the loan agreement dated 20 June 2023 and made among
(i) Guam, Palau and the
other entities listed therein as
joint and several
borrowers, (ii) the banks
and financial
institutions listed
therein, as
lenders, (iii)
Nordea Bank
Abp as
swap bank
and (iv)
Nordea Bank Abp, Filial i Norge Branch as agent, lead arranger and security trustee in respect of
a
loan
facility
of
(originally)
up
to
$22,500,000,
as
such
loan
agreement
may
have
been
further
amended, supplemented, novated and/or restated from time to time.
"
Existing Facility Agreement
B
" means the loan
agreement dated 30
September 2022 and made
among (i) Manra, Jabwot,
Arorae, Tamana, Beru, Bonriki, Ejite, Taongi and the other
entities listed
therein as
joint and
several borrowers,
(ii) the
banks and
financial institutions
listed therein,
as
lenders,
(iii) Nordea
Bank Abp
as swap
bank and
(iv) Nordea
Bank Abp,
Filial i
Norge
Branch as
agent,
lead
arranger
and
security
trustee
in
respect
of
a
loan
facility
of
(originally)
up
to
$200,000,000, as such loan agreement may have been further amended, supplemented, novated
and/or restated from time to time.
"
Existing Indebtedness
" means,
as at
any date, (i)
the outstanding Financial
Indebtedness of
Guam
and Palau under
the Existing Facility Agreement
A, amounting to
$18,000,000 as
at the date of
this
Agreement
and
(ii) the
outstanding
Financial Indebtedness
of
Manra,
Jabwot,
Arorae,
Tamana,
Beru, Bonriki, Ejite
and Taongi under the Existing
Facility Agreement B amounting
to $149,263,025
in total as at the date of this Agreement,
as the context may require.
"
Existing
Security
Interests
"
means
any
Security
Interests
created
to
secure
the
Existing
Indebtedness under each Existing Facility Agreement.
"
Facility Office
" means
the office
or offices
notified by
a 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.
"
Fallback Interest Period
" means one Month.
"
FATCA
"
means:
(a)
sections 1471 to 1474 of the Code or any associated regulations;
(b)
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental
agreement between the
US and
any other jurisdiction,
which (in
either case)
facilitates the
implementation of any law or regulation referred to in paragraph
(a)
above; or
(c)
any agreement pursuant
to the implementation of
any treaty,
law or regulation referred
to in paragraphs
(a)
or
(b)
above with the
US Internal Revenue Service,
the US government
or any governmental or taxation authority in any other jurisdiction.
"
FATCA
Deduction
" means
a deduction
or withholding
from a payment
under a
Finance Document
required by FATCA.
"
FATCA
Exempt Party
" means
a Party
that is
entitled to
receive payments
free from
any FATCA
Deduction.
"
Finance Documents
" means:
(a)
this Agreement;
(b)
the Agency and Trust Deed;
(c)
the Master Agreement;
(d)
the Master Agreement Assignment;
(e)
the Corporate Guarantee;
(f)
the General Assignments;
(g)
the Mortgages;
(h)
the Accounts Pledges;
(i)
the Shares Pledges;
(j)
the Manager's Undertakings;
(k)
any Charterparty Assignment; and
(l)
any other document (whether
creating a Security Interest or
not) which is
executed at any
time
by
any
Borrower,
the
Corporate
Guarantor,
the
Approved
Manager
or
any
other
person as security for, or to establish any form of subordination or priorities arrangement
in
relation
to,
any
amount
payable
to
the
Lenders
and/or
the
Swap
Bank
under
this
Agreement or any of the other documents referred to in this definition.
"
Financial Indebtedness
" means, in relation to a person (the "
debtor
"), a liability of the debtor:
(a)
for
principal, interest
or
any
other
sum
payable
in
respect of
any
moneys
borrowed
or
raised by the debtor;
(b)
under any loan stock, bond, note or other security issued by the debtor;
(c)
under
any
acceptance
credit,
guarantee
or
letter
of
credit
facility
or
dematerialised
equivalent made available to the debtor;
(d)
under
a
financial
lease,
a
deferred
purchase
consideration
arrangement
or
any
other
agreement having the
commercial effect of
a borrowing
or raising of
money by the
debtor;
(e)
under any foreign
exchange transaction, any
interest or currency
swap or any other
kind
of derivative transaction entered into by the debtor or, if the agreement under which any
such transaction
is entered
into
requires netting
of mutual
liabilities, the
liability of
the
debtor for the net amount; or
(f)
under a guarantee,
indemnity or similar obligation
entered into
by the debtor
in respect
of
a
liability
of
another
person
which
would
fall
within
paragraphs
(a)
to
(e)
if
the
references to the debtor referred
to the other person.
"
Financial Year
" means,
in relation to
the Corporate Guarantor, each period
of 1
year commencing
on 1 January in respect of which its annual audited accounts are or ought to be prepared.
"
Fleet Vessels
" means all of the
vessels (including, but not
limited to, the Ships) from time
to time
wholly owned by members of the Group (each a "
Fleet Vessel
").
"
Funding
Rate
"
means
any
individual
rate
notified
by
a
Lender
to
the
Agent
pursuant
to
sub-
paragraph
(ii)
of paragraph
(a)
of Clause
7.3
(
Cost of funds
).
"
GAAP
"
means,
at
any
time,
the
most
recent
and
updated
generally
accepted
accounting
principles in the United States of America.
"
General Assignment
" means,
in relation
to each
Ship, a first
priority general
assignment of
the
Earnings, the Insurances and any Requisition Compensation
in the Agreed Form and,
in the plural,
means all of them.
"
Group
" means the Corporate Guarantor and all its subsidiaries (including, but not limited to, the
Borrowers)
from
time
to
time
during the
Security Period
and
"
member of
the Group
"
shall
be
construed accordingly.
"
Guam
" means Guam Shipping Company
Inc., a corporation incorporated
and existing under the
laws
of
the
Republic
of
the
Marshall
Islands
whose
registered
address
is
at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Hong
Kong
Convention
"
means
the
International
Maritime
Organization's
convention
for
the
Safe and Environmentally Sound Recycling
of Ships, 2009
together with the
guidelines to be
issued
by the International Maritime Organization in connection with such convention.
"
IACS
" means the International Association of Classification Societies.
"
Initial
Market
Value
"
means,
in
respect
of
a
Ship,
the
Market
Value
as
determined
by
the
valuations referred to in paragraph 5 of Part
B of Schedule 3 (
Conditions precedent documents
).
"
Insurances
" means, in relation to a Ship:
(a)
all policies and contracts of
insurance, including entries of such
Ship in any protection and
indemnity
or
war
risks
association,
effected
in
respect
of
such
Ship,
its
Earnings
or
otherwise in relation to such
Ship whether before, on or after the
date of this Agreement;
and
(b)
all rights and other assets relating to, or derived from, any of the foregoing, including any
rights to a return of
a premium and any rights in
respect of any claim whether or not
the
relevant
policy,
contract of
insurance or
entry has
expired on
or before
the date
of this
Agreement.
"
Interest Period
" means, in relation to the Loan
or any part of the Loan, each
period determined
in
accordance
with
Clause
6
(
Interest
Periods
)
and,
in
relation
to
an
Unpaid
Sum,
each
period
determined in accordance with Clause
5.3
(
Default interest
).
"
Interpolated
Term
SOFR
"
means,
in
relation
to
the
Loan
or
any
part
of
the
Loan,
the
rate
(rounded to
the same number of
decimal places as Term
SOFR) which results
from interpolating
on a linear basis between:
(a)
either
(i)
the
applicable Term
SOFR (as
of
the
Quotation
Day)
for
the longest
period (for
which Term SOFR is available) which is less than
the Interest Period of the Loan
or
that part of the Loan; or
(ii)
if no such
Term SOFR is available for a
period which is
less than the
Interest Period
of the Loan
or that part
of the
Loan, SOFR for
the day which
is two US
Government
Securities Business Days before the Quotation Day;
and
(b)
the
applicable
Term
SOFR (as
of
the
Quotation
Day)
for
the
shortest
period (for
which
Term
SOFR is available) which exceeds
the Interest Period
of the Loan or that
part of the
Loan.
"
Inventory
of
Hazardous
Material
"
means,
in
relation
to
each
Ship, an
inventory
certificate
or
statement
of
compliance
(as
applicable)
issued
by
such
Ship's
classification
society
which
is
supplemented by a
list of any
and all materials
known to be
potentially hazardous utilised
in the
construction of such Ship pursuant to the requirements of the EU Ship Recycling Regulation.
"
ISM
Code
"
means
the
International
Safety
Management
Code
(including
the
guidelines
on
its
implementation),
adopted
by
the
International
Maritime
Organisation,
as
the
same
may
be
amended
or
supplemented
from
time
to
time
(and
the
terms
"
safety
management
system
",
"
Safety Management Certificate
" and "
Document of
Compliance
" have the
same meanings
as are
given to them in the ISM Code).
"
ISPS
Code
"
means
the
International
Ship
and
Port
Facility
Security
Code
as
adopted
by
the
International Maritime
Organisation, as
the same may
be amended or
supplemented from
time
to time.
"
ISSC
" means
a valid
and current
International Ship
Security Certificate
issued under
the ISPS
Code.
"
Jabwot
" means
Jabwot
Shipping Company
Inc., a
corporation
incorporated
and existing
under
the laws
of
the Republic
of the
Marshall
Islands whose
registered
address
is at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Lead Arranger
" means Nordea Bank
Abp, filial i Norge,
acting in such capacity through
its office
at Essendrops gate 7, Postboks 1166,
Sentrum, 0107 Oslo,
920058817 MVA,
Norway.
"
Lender
" means
a bank
or financial
institution listed
in
Schedule 1
(
Lenders and
Commitments
)
and
acting
through
its
branch
indicated
in
Schedule 1
(
Lenders
and Commitments
)
(or
through
another
branch
notified
to
the
Agent
under
Clause
26.14
(
Change
of
Facility
Office
))
or
its
transferee, successor or assign and, in the plural, means all of them.
"
Loan
" means
the aggregate
principal amount outstanding
under this Agreement
and a "
part of
the Loan
" means any part of the Loan as the context may require.
"
Major Casualty
" means,
in relation
to a
Ship, any
casualty to
that Ship
in respect
of which
the
claim
or
the
aggregate
of
the
claims
against
all
insurers,
before
adjustment
for
any
relevant
franchise or deductible, exceeds $1,000,000 or the equivalent in any other currency.
"
Majority Lenders
" means:
(a)
before
the
Loan
has
been
made,
a
Lender
or
Lenders
whose
Commitments
aggregate
more than 66.67 per cent. of the Total Commitments; and
(b)
at any
other time,
a Lender or
Lenders whose
Contributions aggregate
more than
66.67
per cent. of the Loan.
"
Management Agreement
" means,
in relation
to each
Ship, an
agreement made
or to
be made
between the Borrower who is
the owner of such
Ship and the
Approved Manager in respect
of the
commercial and technical management of such Ship in the Agreed Form and, in the
plural, means
all of them.
"
Manager's Undertaking
" means, in relation
to each Ship, a
letter of undertaking executed
or to
be
executed
by
the
Approved
Manager
in
favour
of
the
Security
Trustee
in
the
Agreed
Form
agreeing certain matters in relation
to the management of that Ship and subordinating the rights
of the Approved
Manager against
that Ship and
the Borrower
which is the
owner thereof to
the
rights of the Security Trustee under the Finance Documents and, in the plural, means all of them.
"
Manra
" means Manra Shipping Company Inc.,
a corporation incorporated and existing under the
laws
of
the
Republic
of
the
Marshall
Islands
whose
registered
address
is
at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Margin
" means 2.00 per cent. per annum.
"
Market Disruption Rate
" means the Reference Rate.
"
Market Value
" means,
in relation
to each
Ship (and
each other
Fleet Vessel),
the market
value
thereof determined in accordance with Clause
15.3
(
Valuation of Ships
).
"
Master
Agreement(s)
"
means
each
master
agreement
(on
the
2002
ISDA
Master
Agreement
form) in the Agreed Form made or to be made between (i) any of the Borrowers and (ii) the
Swap
Bank
and
includes
all
Designated
Transactions
from
time
to
time
entered
into,
and
all
Confirmations of such Designated Transactions
from time to time exchanged,
under such master
agreements.
"
Master Agreement Assignment
" means the assignment of the Master Agreement in the Agreed
Form.
"
Material
Adverse
Effect
" means
in
the
reasonable opinion
of
the Majority
Lenders
a material
adverse effect on:
(a)
the business,
operations,
property,
condition (financial
or
otherwise) of
the Borrowers,
the Corporate Guarantor,
any Approved Manager which is a member of the Group or the
Group as a whole; or
(b)
the ability of
any Borrower
or the
Corporate Guarantor
to perform
its obligations
under
any Finance Document; or
(c)
the validity
or enforceability
of,
or the
effectiveness or
ranking of
any Security
Interests
granted or intended
to be granted
pursuant to any
of, the Finance
Documents or
the rights
or remedies of any Creditor Party under any of the Finance Documents.
"
Month
" means a period starting
on one day in a
calendar month and ending on the
numerically
corresponding day in the next calendar month, except that:
(a)
(subject to
paragraph
(c)
below) if
the numerically
corresponding
day
is not
a Business
Day,
that period shall end on the next
Business Day in that calendar month
in which that
period is to
end if there
is one, or
if there is
not, on the immediately
preceding Business
Day;
(b)
if there is no numerically corresponding day in the calendar month
in which that period is
to end, that period shall end on the last Business Day in that calendar month; and
(c)
if an
Interest
Period
begins on
the last
Business Day
of
a calendar
month, that
Interest
Period
shall
end
on
the last
Business Day
in
the calendar
month
in which
that
Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"
Mortgage
" means, in
relation to a Ship,
the first preferred Marshall Islands
ship mortgage on
that
Ship in the Agreed Form and, in the plural, means all of them.
"
Namorik
" means Namorik
Shipping Company Inc., a
corporation incorporated and existing under
the laws
of
the Republic
of the
Marshall
Islands whose
registered
address
is at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Notifying Lender
" has
the meaning
given in
Clause
23.1 (
Illegality
) or
Clause
24.1 (
Increased costs
)
as the context requires.
"
Palau
" means
Palau Shipping
Company Inc.,
a corporation
incorporated and
existing under
the
laws
of
the
Republic
of
the
Marshall
Islands
whose
registered
address
is
at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"Palios Family"
means, together,
each of the following:
(a)
Mr.
Simeon Palios;
(b)
all the lineal descendants in direct line of Mr. Simeon Palios;
(c)
a husband or wife or widower or widow of any of the above persons;
(d)
the
estates,
trusts
or
legal
representatives
of
which
any
of
the
above
persons
are
the
beneficiaries; and
(e)
each company legally
or beneficially owned or
(as the case may
be) controlled by one
or
more
of
the
persons
or
entities
which
would
fall
within
paragraphs
(a)
to
(d)
of
this
definition,
and each one of the above shall be referred to as "
a member of the Palios Family
";
"
Participating
Member
State
" means any member state of the European Union that has the euro
as its
lawful currency in
accordance with
legislation of the
European Union relating
to Economic
and Monetary Union.
"
Party
"
means a party to this Agreement.
"
Payment Currency
" has the meaning given in Clause
21.4
(
Currency indemnity
).
"
Permitted Security Interests
" means:
(a)
Security Interests created by the Finance Documents;
(b)
until the Drawdown Date, the Existing Security Interests;
(c)
liens for unpaid master's and crew's wages in accordance with usual maritime practice;
(d)
liens for salvage;
(e)
liens arising
by operation
of law
for not
more than
two months'
prepaid hire
under any
charter in relation to a Ship not prohibited by this Agreement;
(f)
liens for master's disbursements incurred in the ordinary course
of trading and any other
lien arising
by operation of
law or
otherwise in
the ordinary
course of the
operation, repair
or maintenance of a
Ship, provided such liens do not
secure amounts more than
30 days
overdue (unless the overdue amount is being contested by the
relevant Borrower in good
faith by appropriate
steps) and subject, in
the case of liens
for repair or
maintenance, to
Clause
14.15(g)
(
Restriction on chartering, appointment of managers etc.
);
(g)
any
Security Interest
created
in favour
of a
plaintiff or
defendant in
any proceedings
or
arbitration as security for costs and expenses where a Borrower is actively prosecuting or
defending such proceedings or arbitration in good faith; and
(h)
Security Interests arising by operation of
law in respect of
taxes which are not overdue for
payment or in
respect of taxes
being contested in
good faith by appropriate
steps and in
respect of which appropriate reserves have been made.
"
Pertinent Document
" means:
(a)
any Finance Document;
(b)
any policy or
contract of insurance
contemplated by or
referred to in Clause
13 (
Insurance
)
or any other provision of this Agreement or another Finance Document;
(c)
any other document contemplated by or referred to in any Finance Document; and
(d)
any
document
which
has
been
or
is
at
any
time
sent
by
or
to
a
Servicing
Bank
in
contemplation of or
in connection with any
Finance Document or any
policy, contract
or
document falling within paragraphs
(b)
or
(c).
"
Pertinent Jurisdiction
", in relation to a company, means:
(a)
England and Wales;
(b)
the country under the laws of which the company is incorporated or formed;
(c)
a
country
in
which
the
company
has
the
centre
of
its
main
interests
or
in
which
the
company's central management and control is or has recently been exercised;
(d)
a country
in which
the overall
net income
of the
company is
subject to
corporation tax,
income tax or any similar tax;
(e)
a
country
in which
assets of
the company
(other than
securities issued
by,
or
loans to,
related
companies)
having
a
substantial
value
are
situated,
in
which
the
company
maintains a branch or
permanent place of
business, or in
which a Security
Interest created
by the company must
or should be
registered in order to
ensure its validity
or priority; and
(f)
a country
the courts
of which
have jurisdiction
to make
a winding
up, administration
or
similar
order
in
relation
to
the
company,
whether
as
main
or
territorial
or
ancillary
proceedings, or which would have
such jurisdiction if their assistance
were requested
by
the courts of a country referred to in paragraphs
(b)
or
(c).
"
Pertinent Matter
" means:
(a)
any
transaction
or
matter
contemplated
by,
arising
out
of,
or
in
connection
with
a
Pertinent Document; or
(b)
any statement relating to
a Pertinent
Document or
to a transaction
or matter falling
within
paragraph
(a),
and covers
any such
transaction, matter
or statement,
whether entered
into, arising
or made at
any time before the signing of this Agreement or on or at any time after that signing.
"
Poseidon
Principles
"
means
the
financial
industry
framework
for
assessing
and
disclosing
the
climate alignment of ship finance portfolios published in June 2019
as the same may be amended
or replaced from time to time.
"
Potential Event of Default
" means an event or
circumstance which, with the
giving of any notice,
the lapse of
time, a determination of
the Lenders and/or
the satisfaction of
any other condition,
would constitute an Event of Default.
"
Quotation Day
" means, in relation to
any period for which
an interest rate
is to be determined,
two
US
Government
Securities Business
Days
before
the
first
day
of
that
period unless
market
practice
differs
in the
relevant
syndicated
loan market
in which
case the
Quotation Day
will be
determined
by
the
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).
"
Reference Rate
" means, in relation to the Loan or any part of the Loan:
(a)
the applicable Term
SOFR as of the Quotation Day and for a
period equal in length to the
Interest Period of the Loan or that part of the Loan; or
(b)
as otherwise determined pursuant to Clause
7.1
(
Unavailability of Term SOFR
),
and if, in either case, that rate is less than zero,
the Reference Rate shall be deemed to be zero
.
"
Relevant
Market
"
means
the
market
for
overnight
cash
borrowing
collateralised
by
US
Government Securities.
"
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.
"
Relevant Person
" has the meaning given in Clause
19.9
(
Relevant Persons
).
"
Repayment
Date
" means
a date
on which
a repayment
is required
to be
made under
Clause
8
(
Repayment and Prepayment
).
"
Repayment Instalment
" means any
repayment instalment
referred to
in Clause
8.1
(
Amount of
repayment instalments
).
"
Requisition Compensation
" includes all
compensation or other
moneys payable by reason
of any
act or event such as is referred to in paragraph
(b)
of the definition of "
Total Loss
".
"
Resolution
Authority
"
means
any
body
which
has
authority
to
exercise
any
Write-down
and
Conversion Powers.
"
Restricted Party
" means a person:
(a)
that
is listed
on
any
Sanctions List
(whether designated
by
name or
by reason
of
being
included in a class of person);
(b)
located, organised or resident in a country
or territory that is the target of Sanctions that
broadly
prohibit
dealings
with
that
country
or
territory
(currently,
Crimea,
Cuba,
Iran,
North Korea, Syria, Donetsk and Luhansk); or
(c)
that is directly
or indirectly owned or
controlled by a
person referred
to in (a) and/or
(b)
above; or
(d)
with which any
Lender is prohibited
from dealing or
otherwise engaging in a
transaction
with by any Sanctions.
"
Sanctions Authority
" means 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,
official
institution
or
agency
acting
on
behalf
of
any
of
them
in
connection
with
Sanctions.
"
Sanctions
"
means
the
economic
or
financial
Sanctions
and/or
regulations,
trade
embargoes,
prohibitions,
restrictive
measures,
decisions,
Executive
Orders
or
notices
from
regulators
implemented,
adapted,
imposed,
administered,
enacted
and/or
enforced
by
any
Sanctions
Authority.
"
Sanctions List
" means a
list of
persons or
entities published in
connection with Sanctions
by or
on behalf of any Sanctions Authority.
"
Secured
Liabilities
"
means
all
liabilities
which
the
Borrowers,
the
Corporate
Guarantor,
the
Security Parties or any
of them have, at
the date of this Agreement
or at any
later time or times,
under
or
in
connection
with
any
Finance
Document
or
any
judgment
relating
to
any
Finance
Document; and for this purpose, there shall be disregarded any total or partial discharge of these
liabilities, or variation of their terms, which is effected
by, or
in connection with, any bankruptcy,
liquidation, arrangement or other procedure under
the insolvency laws of any country.
"
Security Interest
" means:
(a)
a mortgage, charge (whether
fixed or floating)
or pledge, any
maritime or
other lien
or any
other security interest of any kind;
(b)
the security rights of a plaintiff under an action
in rem
; and
(c)
any
arrangement
entered
into
by
a
person
(A)
the
effect
of
which
is
to
place
another
person
(B)
in a
position which
is
similar,
in economic
terms,
to
the
position in
which
B
would have been had he held a security interest over an asset of A; but this paragraph
(c)
does not apply to a right of set off or
combination of accounts conferred by the
standard
terms of business of a bank or financial institution.
"
Security Party
" means
the Corporate
Guarantor,
the Approved
Manager and
any other
person
(except
a
Creditor
Party)
who,
as
a
surety
or
mortgagor,
as
a
party
to
any
subordination
or
priorities
arrangement,
or
in
any
similar
capacity,
executes
a
document
falling
within
the
last
paragraph of the definition of "
Finance Documents
".
"
Security Period
" means the
period commencing
on the date
of this Agreement
and ending on
the
date on which
the Agent notifies
the Borrowers, the
Security Parties and
the other
Creditor Parties
that:
(a)
all amounts which have become due for
payment by the Borrowers
or any Security Party
under the Finance Documents have been paid;
(b)
no amount is owing
or has accrued (without yet
having become due for
payment) under
any Finance Document;
(c)
neither
a
Borrower
nor
any
Security
Party
has
any
future
or
contingent
liability
under
Clause
20
(
Fees and expenses
),
21
(
Indemnities
) or
22
(
No set-off or Tax Deduction
) below
or any other provision of this Agreement or another Finance Document; and
(d)
the Agent,
the Security Trustee
and the Majority
Lenders do not
consider that there
is a
significant risk that
any payment or
transaction under a Finance
Document would be
set
aside,
or
would
have
to
be
reversed
or
adjusted,
in
any
present
or
possible
future
bankruptcy
of
the
Borrowers
or
a
Security
Party
or
in
any
present
or
possible
future
proceeding relating to
a Finance Document or
any asset covered
(or previously covered)
by a Security Interest created by a Finance Document.
"
Security Trustee
" means Nordea
Bank Abp, filial
i Norge, acting in
such capacity through its
office
at
Essendrops
gate
7,
Postboks
1166,
Sentrum,
0107
Oslo,
920058817
MVA,
Norway,
or
any
successor of it appointed under clause 5 of the Agency and Trust Deed.
"
Selection Notice
" means a
notice substantially in
the form set
out in Schedule
6 (
Selection Notice
)
given in accordance with Clause 6 (
Interest Periods
).
"
Servicing Bank
" means the Agent or the Security Trustee.
"
Shares
Pledge
"
means,
in
relation
to
each
Borrower,
a
deed
executed
by
the
Corporate
Guarantor,
creating security over the equity interests of
that Borrower in the Agreed Form and,
in
the plural, means all of them.
"
Ship
A
"
means
the
2015-built
Ultaramax
bulk
carrier
vessel
of
60,508
deadweight
tonnage
registered in the name of Manra under the
Approved Flag under IMO No.
9747390 with the name
"DSI PEGASUS".
"
Ship
B
"
means
the
2017-built
Ultaramax
bulk
carrier
vessel
of
60,456
deadweight
tonnage
registered in the name
of Jabwot under
the Approved Flag
under IMO No.
9738337 with the
name
"DSI PHOENIX".
"
Ship
C
"
means
the
2016-built
Ultaramax
bulk
carrier
vessel
of
60,309
deadweight
tonnage
registered in the name of Arorae under
the Approved Flag under
IMO No. 9749269 with
the name
"DSI AQUARIUS".
"
Ship
D
"
means
the
2015-built
Ultaramax
bulk
carrier
vessel
of
60,446
deadweight
tonnage
registered in the
name of
Tamana under the
Approved Flag
under IMO
No. 9747405
with the
name
"DSI POLLUX".
"
Ship
E
"
means
the
2018-built
Ultaramax
bulk
carrier
vessel
of
60,362
deadweight
tonnage
registered in
the name of Beru
under the Approved
Flag under IMO
No. 9800635 with the
name
"DSI PYXIS".
"
Ship
F
"
means
the
2015-built
Ultaramax
bulk
carrier
vessel
of
60,309
deadweight
tonnage
registered in the name of
Bonriki under the
Approved Flag under IMO
No. 9729362 with
the name
"DSI AQUILA".
"
Ship
G
"
means
the
2018-built
Ultaramax
bulk
carrier
vessel
of
60,404
deadweight
tonnage
registered in
the name of
Ejite under the
Approved Flag under
IMO No. 9738349
with the name
"DSI POLARIS".
"
Ship
H
"
means
the
2016-built
Ultaramax
bulk
carrier
vessel
of
60,309
deadweight
tonnage
registered in the name of Taongi under the Approved Flag
under IMO No. 9749245
with the name
"DSI ALTAIR
".
"
Ship
I
"
means
the
2012-built Post
-Panamax
bulk
carrier
vessel
of
98,697
deadweight
tonnage
registered in the name of Guam under the Approved Flag under IMO No. 9599157 with the name
of "AMPHITRITE".
"
Ship
J
" means
the 2012-built
Post-Panamax
bulk carrier
vessel
of
98,704 deadweight
tonnage
registered in the name of Palau
under the Approved Flag under IMO No. 9598660 with the name
of "POLYMNIA".
"
Ships
" means,
together,
Ship A, Ship
B, Ship
C, Ship
D, Ship
E, Ship
F,
Ship G,
Ship H, Ship
I and
Ship J and, in the singular, means any 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).
"
Statement
of Compliance
"
means
a
Statement
of
Compliance related
to
fuel oil
consumption
pursuant to regulations 6.6 and 6.7 of Annex VI.
"
Swap Bank
" means Nordea Bank Abp.
"
Swap Exposure
" means, as
at any
relevant date,
the amount certified
by the
Swap Bank
to the
Agent to be the aggregate net amount in Dollars which would be payable by the
Borrowers to the
Swap Bank
under (and
calculated in
accordance with)
section 6(e)
(
Payments on Early
Termination
)
of
the
Master
Agreement
if
an
Early
Termination
Date
had
occurred
on
the
relevant
date
in
relation to all outstanding Designated Transactions
.
"
Tamana
" means Tamana
Shipping Company Inc., a corporation
incorporated and existing
under
the laws
of
the Republic
of the
Marshall
Islands whose
registered
address
is at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Taongi
" means Taongi Shipping
Company Inc., a
corporation incorporated and existing
under the
laws
of
the
Republic
of
the
Marshall
Islands
whose
registered
address
is
at
Trust
Company
Complex, Ajeltake Road, Ajeltake Island, Majuro MH96960, Marshall Islands.
"
Termination
Date
"
means
the
date
falling
on
the
sixth
anniversary
of
the
Drawdown
Date
in
respect of the Loan.
"
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 Loss
" means, in relation to a Ship
(a)
actual, constructive, compromised, agreed or arranged total loss of such Ship;
(b)
any
expropriation,
confiscation,
requisition or
acquisition of
such
Ship, whether
for
full
consideration,
a
consideration
less
than
its
proper
value,
a
nominal
consideration
or
without any consideration, which is effected by any government
or official authority or
by
any person
or persons
claiming to
be or
to represent
a government
or official
authority
(excluding a requisition
for hire for
a fixed period not
exceeding 1 year
without any right
to
an
extension)
unless
it
is
within
one
month
redelivered
to
the
full
control
of
the
Borrower owning that Ship;
(c)
any condemnation of such Ship by any tribunal or by any person or person claiming to be
a tribunal; and
(d)
any
arrest,
capture,
seizure
or
detention
of
such
Ship (including
any
hijacking or
theft)
unless it is
within 30 days redelivered
to the full
control of the Borrower
owning such Ship.
"
Total Loss Date
" means, in relation to a Ship:
(a)
in
the
case
of
an
actual
loss
of
such
Ship,
the
date
on
which
it
occurred
or,
if
that
is
unknown, the date when such Ship was last heard of;
(b)
in the case of
a constructive, compromised, agreed
or arranged total loss of
such Ship, the
earliest of:
(i)
the date on which a notice of abandonment is given to the insurers; and
(ii)
the date of any compromise, arrangement or agreement made by or on behalf of
the
Borrower
owning
such
Ship
with
such
Ship's
insurers
in
which
the
insurers
agree to treat such Ship as a total loss; and
(c)
in the case of any other type of
total loss, on the date (or the most likely date) on which it
appears to the Agent that the event constituting the total loss occurred.
"
Transaction
" has the meaning given in the Master Agreement.
"
Transfer Certificate
" has the meaning given in Clause
26.2
(
Transfer by a Lender
).
"
Trust Property
" has the meaning given in clause 3.1 of the Agency and Trust Deed.
"
UK Bail-In Legislation
" means Part 1 of the United Kingdom Banking Act 2009 and any other law
or
regulation
applicable
in
the
United
Kingdom
relating
to
the
resolution
of
unsound or
failing
banks,
investment
firms
or
other
financial
institutes
or
their
affiliates
(otherwise than
through
liquidation, administration or other insolvency proceedings).
"
Unpaid Sum
" means any sum due and payable but unpaid by a Security Party under
the Finance
Documents.
"
US
" means the United States of America.
"
US Government Securities Business Day
" means any day other than:
(a)
a Saturday or a Sunday; and
(b)
a day on
which the Securities
Industry and Financial
Markets Association (or
any successor
organisation) recommends
that the fixed
income departments of
its members be
closed
for the entire day for purposes of trading in US Government securities.
"
US Tax Obligor
" means:
(a)
a person which is resident for tax purposes in the US; or
(b)
a person some or all of
whose payments under the Finance Documents
are from sources
within the US for US federal income tax purposes.
"
Write-down and Conversion Powers
" means:
(a)
in relation to
any Bail-In Legislation described
in the EU Bail-In Legislation
Schedule from
time to time, the powers described as such in relation to that Bail-In Legislation in the EU
Bail-In Legislation Schedule;
(b)
in relation
to the
UK Bail-In
Legislation, any
powers under
that UK
Bail-In Legislation
to
cancel, transfer
or dilute
shares issued
by a
person that
is a
bank or
investment
firm or
other
financial
institution
or
affiliate
of
a
bank,
investment
firm
or
other
financial
institution, to cancel, reduce, modify or
change the form of a liability of
such a person or
any contract
or instrument under
which that liability
arises, to convert
all or part
of that
liability into shares,
securities or
obligations of that
person or any
other person, to
provide
that any such
contract or instrument
is to have
effect as if
a right
had been
exercised under
it or to suspend any
obligation in respect of that
liability or any of the powers
under that
UK Bail-In Legislation that are related to or ancillary to any of those powers; and
(c)
in relation to any other applicable 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.
1.2
Construction of certain terms
In this Agreement:
"
administration
notice
"
means
a
notice
appointing
an
administrator,
a
notice
of
intended
appointment and
any other notice
which is required
by law
(generally or
in the case
concerned)
to be filed with the court or given to a person
prior to, or in connection with, the appointment of
an administrator.
"
approved
" means, for the purposes of Clause
13
(
Insurance
), approved in writing by the Agent.
"
asset
" includes
every kind
of property,
asset, interest
or right,
including any
present, future
or
contingent right to any revenues or other payment.
(i)
a Lender's "
cost of funds
" in relation to
its participation in
the Loan or
any part of
the Loan
is a reference
to the average
cost (determined either on an actual
or a notional basis) which 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 that part of the Loan for a period equal
in
length to the Interest Period of the Loan or that part of the Loan.
"
company
" includes any partnership, joint venture and unincorporated association.
"
consent
"
includes
an
authorisation,
consent,
approval,
resolution,
licence,
exemption,
filing,
registration, notarisation and legalisation.
"
contingent liability
" means
a liability
which is
not certain
to arise
and/or the
amount of
which
remains unascertained.
"
document
" includes a deed; also a letter or fax.
"
excess risks
" means, in
relation to
a Ship, the
proportion of claims
for general
average,
salvage
and salvage charges not recoverable under the hull and machinery policies in
respect of such Ship
in consequence of its
insured value being less
than the value at which
such Ship is assessed
for the
purpose of such claims.
"
expense
"
means
any
kind
of
cost,
charge
or
expense
(including
all
legal
costs,
charges
and
expenses) and any applicable value added or other tax.
"
law
" includes any order or
decree, any form
of delegated legislation, any
treaty or international
convention and any
regulation or resolution of
the Council of the European
Union, the European
Commission, the United Nations or its Security Council.
"
legal or administrative action
" means any legal proceeding or arbitration and any administrative
or regulatory action or investigation.
"
liability
" includes
every kind
of debt or
liability (present or
future, certain or
contingent), whether
incurred as principal or surety or otherwise.
"
obligatory insurances
" means,
in relation
to a
Ship, all
insurances effected, or
which the
Borrower
owning such
Ship is
obliged to
effect,
under Clause
13
(
Insurance
) or
any other
provision of
this
Agreement or another Finance Document.
"
parent company
" has the meaning given in Clause
1.3
(
Meaning of "subsidiary"
).
"
person
" includes any
company; any
state, political
sub-division of a state
and local or municipal
authority; and any international organisation.
"
policy
",
in
relation
to
any
insurance,
includes
a
slip,
cover
note,
certificate
of
entry
or
other
document evidencing the contract of insurance or its terms.
"
protection
and indemnity
risks
" means
the usual
risks covered
by a
protection and
indemnity
association managed in
London, including pollution risks
and the proportion
(if any) of
any sums
payable to
any other
person or
persons in
case of
collision which are
not recoverable
under the
hull and machinery policies
by reason of the incorporation in them
of clause 6 of the
International
Hull Clauses (1/11/02
or 1/11/03), clause
8 of the
Institute Time Clauses
(Hulls) (1/11/95)
or clause
8 of
the Institute Time
Clauses (Hulls) (1/10/83)
or the Institute
Amended Running Down
Clause
(1/10/71) or any equivalent provision.
"
regulation
" includes any regulation,
rule, official directive, request
or guideline (either
having the
force of law or compliance
with which is reasonable
in the ordinary
course of business of
the party
concerned) 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.
"
subsidiary
" has the meaning given in Clause
1.3
(
Meaning of "subsidiary"
).
"
successor
" includes
any person
who is
entitled (by
assignment, novation,
merger or
otherwise)
to
any person's
rights under
this Agreement
or any
other Finance
Document (or
any interest
in
those rights) or who, as administrator, liquidator or otherwise, is entitled to exercise those rights;
and in particular references to a successor include a person to whom those rights (or any interest
in those
rights) are
transferred
or pass
as a
result of
a merger,
division, reconstruction
or other
reorganisation of it or any other person.
"
tax
" includes any present or future tax, duty, impost, levy or charge of any kind
which is imposed
by any state, any political sub-division of a state or any
local or municipal authority (including any
such imposed in connection with exchange controls), and any connected penalty, interest or
fine.
"
war
risks
"
includes
the
risk
of
mines
and
all
risks
excluded
by
clauses
29,
30
or
31
of
the
International Hull Clauses (1/11/02),
clauses 29 or 30 of
the International Hull Clauses (1/11/03),
clauses 24, 25
or 26 of
the Institute Time
Clauses (Hulls) (1/11/95) or
clauses
23, 24 or
25 of the
Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.
1.3
Meaning of "subsidiary"
A company (S) is a subsidiary of another company (P) if:
(a)
a majority of
the issued shares
in S (or
a majority of the
issued shares in
S which carry
unlimited
rights to capital and income distributions) are directly owned by P or are indirectly attributable to
P; or
(b)
P has direct
or indirect control
over a majority of
the voting rights
attaching to
the issued shares
of S; or
(c)
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
(d)
P
otherwise
has
the
direct
or
indirect
power
to
ensure
that
the
affairs
of
S
are
conducted
in
accordance with the wishes of P,
and any company of which S is a subsidiary is a parent company of S.
1.4
General Interpretation
In this Agreement:
(a)
references to,
or to a provision of,
a Finance Document or any other
document are references
to
it as amended or supplemented, whether before the date of this Agreement or otherwise;
(b)
references
to, or
to a
provision of,
any law
include any amendment,
extension, re-enactment
or
replacement, whether made before the date of this Agreement or otherwise;
(c)
words denoting the singular number shall include the plural and vice versa; and
(d)
Clauses
1.1
(
Definitions
)
to
1.4
(
General
interpretation
)
apply
unless
the
contrary
intention
appears.
1.5
Headings
In interpreting a Finance Document or any provision
of a Finance Document, all
clause, sub-clause
and other headings in that and any other Finance Document shall be entirely disregarded.
2
FACILITY
2.1
Amount of facility
Subject
to
the
other
provisions
of
this
Agreement,
the
Lenders
shall
make
available
to
the
Borrowers,
in
one
advance,
a
senior
secured
term
loan
facility
of
up
to
the
lesser
of
(i)
$167,263,025 and (ii)
60% of the
aggregate Initial Market Value of the Ships, for
the purpose of
re-
financing the Existing Indebtedness.
2.2
Lenders' participations in the Loan
Subject to the other provisions of this Agreement, each Lender shall participate in the Loan in the
proportion which, as at the Drawdown Date, its Commitment bears to the Total
Commitments.
2.3
Purpose of the Loan
The Borrowers undertake
with each Creditor Party to use
the Loan only for the purpose stated
in
the preamble to this Agreement.
3
POSITION OF THE LENDERS, THE SWAP BANK AND THE MAJORITY LENDERS
3.1
Interests of Lenders and Swap Bank several
The rights of
the Lenders and
the Swap Bank under
this Agreement and the
Master Agreement are
several; accordingly:
(a)
each Lender
shall be
entitled to
sue for
any amount
which has
become due
and payable
by the
Borrowers to it under this Agreement; and
(b)
the Swap Bank shall be entitled to sue for any amount which has become due and payable by the
Borrowers to it under the Master Agreement,
without joining the Agent,
the Security Trustee, any other Lender and
the Swap Bank as additional
parties in the proceedings.
3.2
Proceedings by individual Lender or Swap Bank
However,
without the
prior consent of
the Majority Lenders,
no Lender
nor the Swap
Bank may
bring proceedings in respect of:
(a)
any
other
liability or
obligation
of
any
Borrower
or a
Security Party
under or
connected
with
a
Finance Document; or
(b)
any misrepresentation or breach of warranty by any
Borrower or a Security Party in or connected
with a Finance Document.
3.3
Obligations several
The obligations
of the
Lenders and
the Swap
Bank under
this Agreement
and of
the Swap
Bank
under the Master
Agreement are several;
and a failure
of a Lender
or the Swap
Bank to perform
its
obligations
under
this
Agreement
or
of
the
Swap
Bank
to
perform
its obligations
under
the
Master Agreement shall not result in:
(a)
the obligations of the other Lenders or (as the case may be) the Swap Bank being increased; nor
(b)
any Borrower, any Security Party or any other Creditor Party being
discharged (in whole
or in part)
from its obligations under any Finance Document,
and in
no circumstances
shall a
Lender or
the Swap
Bank have
any responsibility
for a
failure of
another Lender or the
Swap Bank to
perform its obligations
under this Agreement or
the Master
Agreement.
3.4
Parties bound by certain actions of Majority Lenders
Every Lender,
the Swap Bank, each Borrower and each Security Party shall be bound by:
(a)
any determination made,
or action
taken, by the
Majority Lenders
under any
provision of
a Finance
Document;
(b)
any instruction or authorisation
given by the
Majority Lenders to the
Agent or the
Security Trustee
under
or
in
connection
with
any
Finance
Document (subject
always
to
Clause
27.2
(
Variations,
waivers etc. by Majority Lenders)
);
(c)
any
action
taken
(or
in
good
faith
purportedly
taken)
by
the
Agent
or
the
Security
Trustee
in
accordance with such an instruction or authorisation.
3.5
Reliance on action of Agent
However,
each Borrower and each Security Party:
(a)
shall
be
entitled
to
assume
that
the
Majority
Lenders
have
duly
given
any
instruction
or
authorisation which,
under any
provision
of
a Finance
Document, is
required
in relation
to
any
action which the Agent has taken or is about to take; and
(b)
shall not
be entitled
to require
any evidence
that such
an instruction
or authorisation
has been
given.
3.6
Construction
In Clauses
3.4
(
Parties bound by certain actions of Majority Lenders
) and
3.5
(
Reliance on action of
Agent
)
references
to
action
taken
include
(without
limitation)
the
granting
of
any
waiver
or
consent, an approval of any document and an agreement to any matter.
4
DRAWDOWN
4.1
Request for the Loan
Subject to the following conditions, the Borrowers
may request the Loan to
be made by ensuring
that the Agent receives a completed
Drawdown Notice not later than 11.00
a.m. (Oslo time) three
Business Days (or such shorter period as the
Agent may,
in its absolute discretion, agree) prior to
the intended Drawdown Date.
4.2
Availability
The conditions referred to in Clause
4.1
(
Request for the Loan
) are that:
(a)
the Drawdown Date has to be a Business Day during the Availability Period;
(b)
the amount of the Loan shall not exceed the lesser of (i) the Existing Indebtedness and (ii) 60% of
the aggregate Initial Market Value of the Ships;
(c)
the Loan shall not exceed the Total Commitments;
and
(d)
the Borrowers may not deliver more than one Drawdown Notice for the Loan.
4.3
Notification to Lenders of receipt of the Drawdown Notice
The Agent
shall promptly
notify the Lenders
that it
has received
the Drawdown
Notice and shall
inform each Lender of:
(a)
the amount of the Loan to be utilised and the Drawdown Date;
(b)
the amount of that Lender's participation in the Loan; and
(c)
the duration of the first Interest Period.
4.4
Drawdown Notice irrevocable
The
Drawdown
Notice
must
be
signed
by
an
officer
or
an
authorised
representative
of
each
Borrower; and
once served, the
Drawdown Notice
cannot be revoked
without the prior
consent
of the Agent, acting on the authority of the Majority Lenders.
4.5
Lenders to make available Contributions
Subject to
the provisions
of this
Agreement, each
Lender shall,
on and
with value
on the
Drawdown
Date,
make
available
to
the Agent
for
the account
of the
Borrowers
the amount
due from
that
Lender on the Drawdown Date under Clause
2.2
(
Lenders' participations
in the Loan
).
4.6
Disbursement of the Loan
Subject to
the provisions
of this
Agreement,
the Agent
shall on
the Drawdown
Date
pay
to the
Borrowers the
amounts which the Agent
receives from the
Lenders under Clause
4.5
(
Lenders to
make available Contributions
); and that payment to the Borrowers shall be made:
(a)
to the account which the Borrowers specify in the Drawdown Notice; and
(b)
in the like funds as the Agent received the payments from the Lenders.
4.7
Disbursement of the Loan to third party
The payment by
the Agent
under Clause
4.6 (
Disbursement of
the Loan
) shall
constitute the making
of the Loan
and the Borrowers shall
at that time
become indebted, as
principal and
direct obligors,
to each Lender in an amount equal to that Lender's Contribution.
4.8
Designated Transactions under the Master Agreement
(a)
The Borrowers
may at
any time
conclude Designated Transactions
with the Swap
Bank pursuant
to
the
Master
Agreement
for
the
purpose
of
swapping
their
interest
payment
obligations
and
managing
exposure
to
interest
rate
fluctuations
and
currency
risk
under
this
Agreement.
The
Borrowers
agree
that
signature
of
the
Master
Agreement
does
not
commit
the
Swap
Bank
to
conclude
Designated
Transactions,
or
even
to
offer
terms
for
doing
so,
but
does
provide
a
contractual
framework
within
which
Designated
Transactions
may
be
concluded
and
secured,
assuming that mutually acceptable terms can be agreed at the relevant time.
(b)
The
Lenders
agree
that,
to
enable
the
Borrowers
to
secure
their
obligations
to
the
Swap
Bank
under the
Master Agreement,
the security
of the
other Finance
Documents shall
be held
by the
Security Trustee
not only to secure the Borrowers' obligations
under this Agreement but also the
Borrowers' obligations under the
Master Agreement on
the terms set
out in Clause
17 (
Application
of receipts
).
5
INTEREST
5.1
Calculation of interest
The rate of interest on the Loan or any part of the Loan for each Interest Period is the percentage
rate per annum which is the aggregate of the applicable:
(a)
Margin; and
(b)
Reference Rate.
5.2
Payment of interest
(a)
The Borrowers
shall pay
accrued interest
on the
Loan or
any part
of the
Loan on the
last day
of
each Interest Period.
(b)
If
an
Interest
Period
is
longer
than
three
Months,
the
Borrowers
shall
also
pay
interest
then
accrued on the
Loan or the
relevant part of the
Loan on the
dates falling at three
Monthly intervals
after the first day of the Interest Period.
5.3
Default interest
(a)
If a Security Party
fails to pay any amount payable by
it under a Finance
Document on its due
date,
interest shall accrue on the Unpaid
Sum from the due date up
to the date of actual
payment (both
before
and after
judgment) at
a rate
which, subject to
paragraph
(b)
below,
is two
per cent. per
annum higher
than the
rate which
would have
been payable
if the
Unpaid Sum
had, during
the
period
of
non-payment,
constituted
part
of
the
Loan
in
the
currency
of
the
Unpaid
Sum
for
successive Interest Periods, each of a duration selected by
the Agent.
Any interest accruing under
this Clause
5.3 (
Default interest
) shall be
immediately payable by the
Borrowers on demand by the
Agent.
(b)
If an Unpaid Sum consists of all or part
of the Loan which became due on a day which
was not the
last day of an Interest Period relating to the Loan or that part of the Loan:
(i)
the first Interest
Period for that Unpaid Sum shall have
a duration equal to the unexpired
portion of the current Interest Period relating to the Loan or that part of the Loan; and
(ii)
the rate
of interest
applying to that
Unpaid Sum during that
first Interest
Period shall be
two
per cent.
per annum
higher than
the rate
which would
have
applied if
that Unpaid
Sum had not become due.
(c)
Default interest (if unpaid) arising on an Unpaid Sum will
be compounded with the Unpaid
Sum at
the end
of each
Interest Period
applicable to
that Unpaid
Sum but
will remain
immediately due
and payable.
(d)
For the avoidance
of doubt,
this Clause
5.3 (
Default interest
) does
not apply
to any
amount payable
under the Master Agreement in respect of any continuing Designated Transaction as to which the
relevant provisions of the Master Agreement shall apply.
5.4
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, any part
of the Loan or any Unpaid Sum.
6
INTEREST PERIODS
6.1
Selection of Interest Periods
(a)
The Borrowers
may
select the
Interest
Period
for
the Loan
in the
Drawdown
Notice. Subject
to
paragraphs (f) and
(h) below, the Borrowers may select
each subsequent Interest
Period in respect
of 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 five Business Days before the expiry of the preceding Interest Period.
(c)
If
the
Borrowers
fail
to
select
an
Interest
Period
in
the
Drawdown
Notice
or
fail
to
deliver
a
Selection
Notice
to
the
Agent
in
accordance
with
paragraphs
(a)
and
(b)
above,
the
relevant
Interest Period,
subject to paragraphs (f) and (h) below will be three Months.
(d)
Subject to this
Clause 6 (
Interest Periods
), the Borrowers
may select
an Interest Period
of one or
three Months
or any
other period
agreed between
the Borrowers
and the
Agent (acting
on the
instructions of all the Lenders).
(e)
An
Interest
Period
in
respect
of
the
Loan
or
any
part
of
the
Loan
shall
not
extend
beyond
the
Termination Date
.
(f)
The first Interest Period
for the Loan shall start on the Drawdown
Date and, subject to paragraph
(g) below,
each subsequent
Interest
Period
shall start
on
the last
day
of
the preceding
Interest
Period.
(g)
If
the
Borrowers
have
selected
an
Interest
Period
which
ends
on
a
day
which is
after
the
next
Repayment
Date,
the
Agent
may
shorten
the
Interest
Period
as
necessary
to
ensure
that
the
Interest Period ends on the relevant Repayment Date
.
(h)
The Loan shall have one Interest Period only at any time.
6.2
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).
7
CHANGES TO THE CALCULATION OF INTEREST
7.1
Unavailability of Term SOFR
(a)
Interpolated Term
SOFR
:
If no
Term
SOFR is
available for
the Interest
Period of
the Loan
or any
part of the Loan,
the applicable Reference
Rate shall be the
Interpolated Term
SOFR for a
period
equal in length to the Interest Period of the Loan or that part of the Loan.
(b)
Shortened Interest Period
:
If no Term
SOFR is available for
the Interest Period
of the Loan or any
part of the Loan and it is
not possible to calculate the Interpolated Term SOFR, the Interest Period
of the Loan
or that part
of the Loan
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)
Cost
of
funds
:
If
paragraph
(b)
above
applies
but
no
Term
SOFR
is
available
for
the
applicable
Fallback
Interest
Period
or
the
Interest
Period
is
shorter
than
the
applicable
Fallback
Interest
Period, there shall be
no Reference Rate
for the Loan or that
part of the Loan (as applicable)
and
Clause
7.3
(
Cost of funds
) shall apply to the Loan or that part of the Loan for that Interest Period.
7.2
Market disruption
If before
close of
business in
London on
the Quotation
Day for
the relevant
Interest Period
,
the
Agent
receives
notification
from
a
Lender
or
Lenders
(whose
participations
in
the
Loan
or
the
relevant part of the Loan exceed
50 per cent. of the Loan or that part of the Loan as appropriate)
that its cost
of funds relating
to its participation
in the Loan or
that part of
the Loan would
be in
excess of the Market Disruption Rate
then Clause
7.3
(
Cost of funds
) shall apply
to the Loan
or that
part of the Loan (as applicable) for the relevant Interest Period.
7.3
Cost of funds
(a)
If this Clause
7.3
(
Cost of funds
) applies, the rate of interest on each Lender's share of the Loan or
the
relevant
part
of
the
Loan
for
the
relevant
Interest
Period
shall
be
the
percentage
rate
per
annum which is the sum of:
(i)
the Margin; and
(ii)
the
weighted
average
of
the
rates
notified
to
the
Agent
by
each
Lender
as
soon
as
practicable and
in any
event before
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 that part of the Loan.
(b)
If this Clause
7.3
(
Cost of funds
) applies and the
Agent or the Borrowers
so requires, the Agent and
the Borrowers
shall enter into negotiations (for a period of not more than 30 days) with a view to
agreeing
a
substitute
basis
for
determining
the
rate
of
interest
or
(as
the
case
may
be)
an
alternative basis for funding.
(c)
Subject
to
Clause
27.4
(
Changes
to
reference
r
ates
),
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 paragraph (e) below does not apply and any
rate notified to the Agent under sub-paragraph
(ii)
of paragraph
(a)
above is less than zero, the relevant rate shall be deemed to be zero.
(e)
If this Clause
7.3
(
Cost of funds
) applies pursuant to Clause 7.2 (
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 sub-paragraph
(ii)
of paragraph
(a)
above,
that Lender's cost of funds relating to its participation in the Loan or the relevant part of the Loan
for that Interest Period
shall be
deemed, for
the purposes
of paragraph
(a)
above, to be
the Market
Disruption Rate.
(f)
If this Clause
7.3
(
Cost of funds
) applies but any Lender does not notify a rate
to the Agent by the
time specified in sub-paragraph
(ii)
of paragraph
(a)
above the rate of
interest shall be calculated
on the basis of the rates notified by the remaining Lenders.
7.4
Break Costs
(a)
The Borrowers
shall, within
three Business
Days of demand
by a
Creditor Party, pay to
that Creditor
Party its
Break Costs
attributable to
all or any
part of the
Loan or Unpaid
Sum being paid
by the
Borrowers
on a day prior to the
last day of an Interest Period for the Loan, the
relevant part of the
Loan or that Unpaid Sum.
(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.
8
REPAYMENT
AND PREPAYMENT
8.1
Amount of repayment instalments
(a)
The Borrowers shall repay the Loan by:
(b)
23 equal
consecutive quarterly
instalments
(each, a
"
Repayment
Instalment
" and,
in the
plural
means, all of them) each in an amount equal to $4,453,749; and
(c)
a balloon instalment in an amount of $64,826,798 (the "
Balloon Instalment
");
8.2
Repayment Dates
The first
Repayment
Instalment
in respect
of
the Loan
shall be
repaid
on
the date
falling
three
Months after the Drawdown Date, each subsequent Repayment Instalment in respect of the Loan
shall be repaid at quarterly intervals
thereafter and the Balloon Instalment shall be repaid
on the
Termination Date.
8.3
Final Repayment Date
On the final Repayment Date, the Borrowers shall additionally pay to the Agent for the account of
the Creditor Parties all other sums then accrued or owing under any Finance Document.
8.4
Voluntary prepayment
Subject to the following conditions, the Borrowers
may prepay the whole or
any part of the Loan
on the last day of an Interest Period.
8.5
Conditions for voluntary prepayment
The conditions referred to in Clause
8.4
(
Voluntary prepayment
) are that:
(a)
a partial prepayment shall be $500,000 or a higher integral multiple of $500,000;
(b)
the Agent
has received
from the
Borrowers at
least five
days' prior
written notice
specifying the
amount to be prepaid and the date on which the prepayment is to be made;
(c)
the Borrowers have provided evidence satisfactory to the Agent that any consent required by any
Borrower or any Security
Party in connection
with the
prepayment has been
obtained and remains
in force,
and that
any regulation
relevant
to this
Agreement which
affects
any Borrower
or any
Security Party has been complied with; and
(d)
the Borrowers have complied with
Clause
8.13
(
Unwinding of Designated
Transactions
) on or
prior
to the date of prepayment.
8.6
Effect of notice of prepayment
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given
with the
authorisation of
the Majority
Lenders, and
the amount
specified in
the prepayment notice
shall
become
due
and
payable
by
the
Borrowers
on
the
date
for
prepayment
specified
in
the
prepayment notice.
8.7
Notification of notice of prepayment
The Agent shall
notify the
Lenders promptly upon
receiving a
prepayment notice, and
shall provide
any
Lender which
so
requests
with a
copy
of
any
document
delivered
by
the
Borrowers
under
Clause 8.5(c) (
Conditions for voluntary prepayment
).
8.8
Mandatory prepayment
(a)
The
Borrowers
shall
be
obliged
to
prepay
the
Relevant
Amount
of
the Loan
if a
Ship is
sold
or
becomes a Total Loss:
(i)
in the case of
a sale, on
or before the date on
which the Mortgage on
that Ship is released;
or
(ii)
in the case
of a Total
Loss, on the
earlier of the
date falling
180 days
after the Total
Loss
Date and the date of receipt by the Security Trustee
of the proceeds of insurance relating
to such Total Loss.
(b)
In this Clause
8.8
(
Mandatory prepayment
) "
Relevant Amount
" means, in
relation to
a Ship that
has been sold or become
a Total
Loss, the amount achieved
by dividing the Market
Value of
that
Ship by the aggregate of the
Market Value of all the Ships (including
the Ship that has been
sold or
become a Total
Loss) and multiplying it by the Loan on the date that such Ship is sold or becomes
a Total
Loss.
8.9
Mandatory prepayment upon Change of Control
(a)
If a Change of Control occurs:
(b)
the Borrower shall promptly notify the Agent upon becoming aware of that event; and
(c)
if the Majority Lenders so require,
the Agent shall, by not
less than 10 Business Days' notice
to the
Borrowers, cancel
the Total
Commitments and declare
the Loan, together
with accrued interest,
and
all
other
amounts
accrued
under
the
Finance
Documents
immediately
due
and
payable,
whereupon
the
Total
Commitments
will
be
cancelled
and
the
Loan
and
all
such
outstanding
interest and other amounts will become immediately due and payable.
8.10
Amounts payable on prepayment
A prepayment shall be
made together with
accrued interest (and any
other amount payable under
Clause
21
(
Indemnities
) or otherwise) in respect of the amount prepaid
and, subject to any Break
Costs without premium or penalty.
8.11
Application of partial prepayment
(a)
Each partial prepayment
made pursuant to
Clause
8.4 (
Voluntary prepayment
) shall be
applied pro
rata against the then outstanding Repayment Instalments
and the Balloon Instalment.
(b)
Each partial prepayment made pursuant
to Clauses
8.8
(
Mandatory prepayment
) shall be applied
pro rata against the then outstanding Repayment Instalments
and the Balloon Instalment.
8.12
No re-borrowing
No amount prepaid may be re-borrowed.
8.13
Unwinding of Designated Transactions
On
or
prior to
any
repayment
or
prepayment
of
the Loan
under this
Clause
8
(
Repayment
and
prepayment
)
or
any
other
provision
of
this
Agreement,
each
Borrower
shall
wholly
or
partially
reverse,
offset,
unwind
or
otherwise
terminate
one
or
more
of
the
continuing
Designated
Transactions
so
that
the
notional
principal
amount
of
the
continuing
Designated
Transactions
thereafter
remaining
does
not
and
will
not
in
the
future
(taking
into
account
the
scheduled
amortisation) exceed
the amount of the
Loan as reducing from
time to time
thereafter pursuant
to Clause
8.1
(
Amount of repayment instalments
).
9
CONDITIONS PRECEDENT
9.1
Documents, fees and no default
Each Lender's obligation
to contribute to
the Loan is
subject to the
following conditions precedent:
(a)
that, on or before the service of the Drawdown Notice, the Agent receives:
(i)
the documents described in
Part A
of
Schedule 3
(
Condition precedent documents
) in form
and substance satisfactory to the Agent and its lawyers; and
(ii)
the arrangement fee referred to in Clause
20.1
(a) (
Fees
);
(b)
that, on or before the Drawdown Date, the Agent receives or is satisfied that it will receive on the
advance
of
the
Loan
the
documents
described
in
Part
B
of
Schedule
3
(
Condition
precedent
documents
) in form and substance satisfactory to it and its lawyers;
(c)
that,
on
or
before
the
service
of
the
Drawdown
Notice,
the
Agent
receives
payment
of
any
expenses payable pursuant to Clause
20.2 (
Costs of negotiation,
preparation etc
.) which is
due and
payable on the Drawdown Date;
(d)
that both at the date of the Drawdown Notice and at the Drawdown Date:
(i)
no Event
of Default
or Potential
Event
of Default
has occurred
or would
result from
the
borrowing of the Loan;
(ii)
the representations and warranties in Clause
10.1
(
General
) and those of any Borrower or
any Security
Party which
are set
out in
the other
Finance Documents would
be true and
not
misleading
if
repeated
on
each of
those
dates
with reference
to
the
circumstances
then existing;
(iii)
none of the
circumstances contemplated
by Clause
7.2
(
Market disruption
) has occurred
and is continuing; and
(iv)
there has
been no
material adverse
change in
the financial
condition, state
of affairs
or
prospects
of
the
Borrowers
(or
any
of
them),
the
Corporate
Guarantor
or
any
other
Security Party
since 9 June
2024 in
the light
of which the
Agent considers
that there
is a
significant risk that the Borrowers, the
Corporate Guarantor or any other Security
Party is,
or
will later
become, unable
to
discharge
its liabilities
under the
Finance Documents
to
which it is a party as they fall due;
(e)
that, if
the ratio
set out
in Clause
15.1 (
Minimum required
security cover
) were
applied immediately
following
the
making
of
the
Loan,
the
Borrowers
would
not
be
obliged
to
provide
additional
security or prepay part of the Loan under that Clause; and
(f)
that
the
Agent
has
received,
and
found
to
be
acceptable
to
it,
any
further
opinions,
consents,
agreements and documents
in connection
with the Finance
Documents which
the Agent may, with
the
authorisation
of
the
Majority
Lenders,
request
by
notice
to
the
Borrowers
prior
to
the
Drawdown Date.
9.2
Waiver of conditions precedent
If the Majority Lenders, at
their discretion, permit the Loan
to be borrowed before
certain of the
conditions referred to in Clause
9.1
(
Documents, fees and no default
) are satisfied, the Borrowers
shall ensure that those
conditions are satisfied within
five Business Days after the
Drawdown Date
(or such longer period as the Agent may, with the authorisation of the Majority Lenders, specify).
10
REPRESENTATIONS
AND WARRANTIES
10.1
General
Each Borrower represents and warrants to each Creditor Party as follows.
10.2
Status
(a)
Each Borrower is duly incorporated and validly
existing and in good standing under
the laws of the
Marshall Islands.
10.3
Shares and ownership
(a)
Each Borrower is authorised to issue five hundred
(500) registered shares with par value of $0.01
each.
(b)
The legal title and beneficial ownership
of all those shares is held, free
of any Security Interest or
other claim, by the Corporate Guarantor.
10.4
Corporate power
Each
Borrower
has
the
corporate
capacity,
and
has
taken
all
corporate
action and
obtained
all
consents necessary for it:
(a)
to register permanently the Ship owned by it in its name under the Approved Flag;
(b)
to execute the Finance Documents to which that Borrower is a party; and
(c)
to
borrow
under
this
Agreement,
to
enter
into
Designated
Transactions
under
the
Master
Agreement
and to
make
all the
payments
contemplated
by,
and to
comply with,
those Finance
Documents to which it is a party.
10.5
Consents in force
All
the
consents
referred
to
in
Clause
10.4
(
Corporate
power
)
remain
in
force
and
nothing
has
occurred which makes any of them liable to revocation.
10.6
Legal validity; effective Security Interests
The Finance
Documents to
which each
Borrower is
a party,
do now or,
as the
case may
be, will,
upon execution
and delivery
(and, where
applicable, registration
as provided
for in
the Finance
Documents):
(a)
constitute that
Borrower's legal, valid
and binding obligations
enforceable against
that Borrower
in accordance with their respective terms; and
(b)
create legal,
valid and binding
Security Interests
enforceable in
accordance with their
respective
terms over all the assets to which they, by their terms, relate;
subject to any relevant insolvency laws affecting creditors' rights generally.
10.7
No third party Security Interests
Without limiting
the generality
of Clause
10.6
(
Legal validity;
effective Security
Interests
), at
the
time of the execution and delivery of each Finance Document to which a Borrower is a party:
(a)
each
Borrower
which
is
a
party
to
that
Finance
Document
will
have
the
right
to
create
all
the
Security Interests which that Finance Document purports to create; and
(b)
no third party will have any
Security Interest (except for Permitted Security Interests) or any other
interest, right
or claim over,
in or in
relation to
any asset to
which any
such Security Interest,
by
its terms, relates.
10.8
No conflicts
The execution
by each Borrower
of each Finance Document
to which it
is a party,
the borrowing
by the Borrowers
of the
Loan (or
any part thereof)
and its
compliance with
each Finance
Document
to which it is a party will not involve or lead to a contravention of:
(a)
any law or regulation; or
(b)
the constitutional documents of that Borrower; or
(c)
any contractual
or other obligation
or restriction
which is binding
on that
Borrower or
any of
its
assets.
10.9
No withholding taxes
All payments which each Borrower is liable to make under the Finance Documents to which it is a
party may be made without deduction or withholding for or on account
of any tax payable
under
any law of any Pertinent Jurisdiction.
10.10
No default
No Event of Default or Potential Event
of Default has occurred.
10.11
Information
All information which
has been
provided in
writing by
or on
behalf of
the Borrowers or
any Security
Party to
any Creditor
Party in connection
with any Finance
Document satisfied the requirements
of Clause
11.5
(
Information provided
to be
accurate
); all
audited and
unaudited accounts
which
have been
so provided
satisfied the
requirements of
Clause
11.7
(
Form of
financial statements
);
and there has
been no material adverse
change in the financial
position or state
of affairs
of any
Borrower or the Corporate Guarantor from that disclosed in the latest of those accounts.
10.12
No litigation
No legal or
administrative action involving
any Borrower
(including action relating to
any alleged
or
actual
breach
of
the
ISM
Code
or
the
ISPS
Code)
has
been
commenced
or
taken
or,
to
any
Borrower's knowledge, is likely to be commenced or taken.
10.13
Compliance with certain undertakings
At the date of this Agreement, the Borrowers
are in compliance with Clauses
11.2
(
Title; negative
pledge
),
11.4 (
No other
liabilities or
obligations to
be incurred
),
11.9 (
Consents
) and
11.13 (
Principal
place of business
).
10.14
Taxes
paid
Each Borrower
has paid all taxes
applicable to, or
imposed on or in
relation to that
Borrower,
its
business or the Ship owned by it.
10.15
ISM Code and ISPS Code compliance
All requirements of the
ISM Code and
the ISPS Code
as they relate to the
Borrowers, the Approved
Manager and the Ships have been complied with.
10.16
No money laundering
Without
prejudice
to
the
generality
of
Clause
2.3
(
Purpose
of
the
Loan
),
in
relation
to
the
borrowing by the Borrowers
of the Loan, the performance
and discharge of their obligations
and
liabilities under the Finance
Documents, and the transactions and
other arrangements affected or
contemplated by
the Finance Documents
to which
a Borrower
is a party,
the Borrowers
confirm
(i) that
they are
acting for their
own account;
(ii) that they
will use the
proceeds of
the Loan for
their own benefit, under their
full responsibility and exclusively
for the purposes specified
in this
Agreement; (iii)
that no
Borrower and
no Security
Party nor
any of
their respective
subsidiaries,
directors, or officers, or, to the best of the Borrowers'
knowledge, any affiliate, agent or employee
thereof 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
Borrower
and
each
Security
Party
has
instituted
and
maintains
policies
and
procedures
designated to prevent
violation of such laws regulations
and rules and (iv) that the
foregoing will
not involve or lead
to a contravention of
any law, official requirement or other
regulatory measure
or
procedure
implemented
to
combat
"money
laundering"
(as
defined
in
Article
1
of
Directive
2005/60/EC of the European Parliament and of the Council).
10.17
No immunity
No Borrower,
nor any
of their
assets are
entitled to
immunity on
the grounds
of sovereignty
or
otherwise
from
any
legal
action
or
proceeding
(which
shall
include,
without
limitation,
suit
attachment prior to judgement, execution or other enforcement).
10.18
Sanctions
(a)
Each
Borrower,
Security
Party
and
member
of
the
Group
and
their
respective
subsidiaries,
directors,
officers,
employees,
and
to
the
best
of
each
Borrower's
knowledge,
their
respective
agents or representatives has been and is in compliance with Sanctions.
(b)
No Borrower, Security Party or member of the Group, none of their subsidiaries and none of their
respective directors, officers,
employees, and to the best of
each Borrower's knowledge, none of
their respective agents or representatives:
(i)
is a Restricted Party,
or is involved in any
transaction through which it is likely
to become
a Restricted
Party or
result in
the imposition of
Sanctions against
any party
to a
Finance
Document; or
(ii)
is
subject to
or
involved
in
any
inquiry,
claim,
action,
suit,
proceedings
or
investigation
against it with respect to Sanctions by any Sanctions Authority.
10.19
Compliance with applicable laws
Each Borrower is at all times in compliance with all applicable laws or regulations.
10.20
Compliance with Environmental Laws
All Environmental
Laws relating
to the
ownership, operation
and management
of each
Ship and
the business of
each member of
the Group
(as now conducted
and as
reasonably anticipated
to
be conducted
in the
future) and
the terms
of
all Environmental
Approvals
have
been complied
with.
10.21
No Environmental Claim
No Environmental
Claim has been
made or threatened
against any
member of the
Group or any
Ship which might reasonably be expected to have a Material Adverse Effect.
10.22
No Environmental Incident
No
Environmental
Incident
has
occurred
and
no
person
has
claimed
that
an
Environmental
Incident has occurred.
11
GENERAL UNDERTAKINGS
11.1
General
Each Borrower undertakes with each
Creditor Party to comply with
the following provisions of
this
Clause
11
(
General undertakings
) at all times during the Security Period except as the Agent
may,
with the authorisation of the Majority Lenders, otherwise permit.
11.2
Title; negative pledge
Each Borrower will:
(a)
hold the legal
title to, and
own the entire
beneficial interest in
the Ship
owned by it,
the Insurances
and Earnings, free
from all Security
Interests and
other interests
and rights of
every kind, except
for
those
created
by
the
Finance
Documents
and
the
effect
of
assignments
contained
in
the
Finance Documents and except for Permitted Security Interests; and
(b)
not create
or permit
to arise
any Security
Interest (except
for Permitted
Security Interests)
over
any other asset, present or future (including, but not limited
to, that Borrower's rights against the
Swap
Bank
under
the
Master
Agreement
or
all
or
any
part
of
that
Borrower's
interest
in
any
amount payable to that Borrower by the Swap Bank under the Master Agreement).
11.3
No disposal of assets
No Borrower will transfer,
lease or otherwise dispose of:
(a)
all
or
a
substantial
part
of
its
assets,
whether
by
one
transaction
or
a
number of
transactions,
whether related or not; or
(b)
any debt payable to it
or any other
right (present, future
or contingent right) to
receive a payment,
including any right to damages or compensation,
but paragraph
(a)
does not apply to any charter of a Ship as to
which Clause
14.15
(
Restriction on
chartering, appointment of managers etc.
) applies.
11.4
No other liabilities or obligations to be incurred
No Borrower will incur any liability or obligation except:
(a)
under the Finance Documents to which it is a party;
(b)
liabilities
or
obligations
reasonably
incurred
in
the
ordinary
course
of
owning,
operating
and
chartering the Ship owned by it;
(c)
in respect of the Designated Transactions; and
(d)
until the
Drawdown Date,
any liabilities
incurred under
the Existing
Facility Agreement
to which
such Borrower is a party.
11.5
Information provided to be accurate
All financial
and other information
which is provided
in writing
by or
on behalf
of a Borrower
under
or in connection with any Finance
Document will be true and
not misleading and will
not omit any
material fact or consideration.
11.6
Provision of financial statements
Each Borrower will deliver or procure that the Corporate Guarantor shall deliver to the Agent:
(a)
as soon as possible, but in no event later than 180 days after the end of
each Financial Year of the
Corporate
Guarantor
the
audited
annual
consolidated
financial
statements
of
the
Corporate
Guarantor
for
that
Financial
Year
of
the
Corporate
Guarantor
(commencing
with
the
financial
statements for the year that ended on 31 December 2023);
(b)
as soon as possible, but in no
event later than 90
days after the end of
each Financial Year
of the
Corporate
Guarantor
the
unaudited
annual
consolidated
financial
statements
of
the
Corporate
Guarantor
for
that
Financial
Year
of
the
Corporate
Guarantor
(commencing
with
the
financial
statements for the year that ended on 31 December 2023);
(c)
as soon as possible, but
in no event later
than 90 days after
30 June in each Financial Year
of the
Corporate
Guarantor
the
unaudited
semi-annual
consolidated
financial
statements
of
the
Corporate Guarantor for the
first six-month period
of such
Financial Year and
in the
form published
in the relevant
press release
(commencing with the financial statements
for the 6-month period
ended
on
30
June
2024)
certified
as
to
their
correctness
by
the
chief
financial
officer
of
the
Corporate Guarantor; and
(d)
promptly after a request by
the Agent, such further
financial or other
information in respect of
the
Borrowers, the
Ships, the Corporate
Guarantor,
the other Security
Parties, the
Fleet Vessels
and
the Group (including, but not limited to, charter arrangements, Financial Indebtedness, operating
expenses) as the Agent may reasonably require.
11.7
Form of financial statements
All accounts delivered under Clause
11.6
(
Provision of financial statements
) will:
(a)
be prepared in accordance with all applicable laws and GAAP consistently applied;
(b)
give a true
and fair view
of the state
of affairs
of the Group
at the date
of those accounts
and of
its profit for the period to which those accounts relate; and
(c)
fully disclose or provide for all significant liabilities of the Group.
11.8
Shareholder and creditor notices
Each
Borrower
will
send
the
Agent,
at
the
same
time
as
they
are
despatched,
copies
of
all
communications which
are despatched
to that
Borrower's shareholders
or creditors
or any
class
of them.
11.9
Consents
Each
Borrower
will
maintain
in
force
and
promptly
obtain
or
renew,
and
will
promptly
send
certified copies to the Agent of, all consents required:
(a)
for that Borrower to perform its obligations under any Finance Document to which it is a party;
(b)
for the validity or enforceability of any Finance Document to which it is a party; and
(c)
for that Borrower to continue to own and operate the Ship owned by it,
and that Borrower will comply with the terms of all such consents.
11.10
Maintenance of Security Interests
Each Borrower will:
(a)
at its own cost, do all that is necessary to ensure that any Finance Document to which it is a party
validly creates the obligations and the Security Interests which it purports to create; and
(b)
without limiting the generality
of paragraph
(a)
, at its
own cost, promptly
register,
file, record or
enrol
any
Finance
Document
with
any
court
or
authority
in
all
Pertinent
Jurisdictions, pay
any
stamp, registration or similar tax in all Pertinent Jurisdictions in respect of
any Finance Document,
give
any
notice or
take
any
other
step
which,
in
the opinion
of
the Majority
Lenders,
is
or
has
become necessary or
desirable for
any Finance Document
to be
valid, enforceable
or admissible
in evidence or to ensure or protect the priority of any Security Interest which it creates.
11.11
Notification of litigation
Each Borrower
will provide
the Agent
with details
of any
legal or
administrative action
involving
that Borrower, any Security Party,
the Approved Manager or the Ship
owned by it, the Earnings or
the Insurances as soon as such action is instituted
or it becomes apparent to that Borrower that it
is
likely
to
be
instituted,
unless
it
is
clear
that
the
legal
or
administrative
action
cannot
be
considered material in the context of any Finance Document.
11.12
No amendment to Master Agreement
No
Borrower
will
agree
to
any
amendment
or
supplement
to,
or
waive
or
fail
to
enforce,
the
Master Agreement or any of its provisions.
11.13
Principal place of business
No Borrower will establish,
or do anything
as a result
of which it
would be deemed
to have, a place
of business any country other than Greece.
11.14
Confirmation of no default
Each Borrower will, within
two Business Days after
service by the
Agent of a
written request, serve
on the Agent a notice which is signed by a senior officer of that Borrower and which:
(a)
states that no Event of Default or Potential
Event of Default has occurred; or
(b)
states that
no Event
of Default
or Potential
Event of
Default has
occurred, except
for a
specified
event or matter,
of which all material details are given.
The Agent may
serve requests under
this Clause
11.14
(
Confirmation of no
default
) from time
to
time but only
if asked to do
so by a
Lender or
Lenders having Contributions
exceeding ten per
cent.
of the Loan or (if the Loan has not been made) Commitments
exceeding ten per cent. of the Total
Commitments; and this Clause
11.14
(
Confirmation of no default
) does not
affect the
Borrowers'
obligations under Clause
11.15
(
Notification of default
).
11.15
Notification of default
Each Borrower will notify the Agent as soon as that Borrower becomes aware of:
(a)
the occurrence of an Event of Default or a Potential Event of Default; or
(b)
any
matter
which
indicates
that
an
Event
of
Default
or
a
Potential
Event
of
Default
may
have
occurred,
and will keep the Agent fully up to date with all developments.
11.16
Provision of further information
Each Borrower will, as soon as practicable after receiving the request, provide the Agent with any
additional financial or other information relating:
(a)
to the
Borrowers,
the Group,
the Corporate
Guarantor,
the Ships,
the other
Fleet Vessels,
their
Insurances
or
their
Earnings
(including,
but
not
limited
to,
any
sales
or
purchases
of
any
Fleet
Vessels,
the
incurrence
of
Financial
Indebtedness
by
members
of
the
Group,
details
of
the
employment of the Fleet Vessels) as the Agent may require; or
(b)
to any other matter relevant to, or to any
provision of, a Finance Document,
which may be requested
by the Agent,
the Security Trustee,
the Swap Bank or
any Lender at any
time.
11.17
Provision of copies and translation of documents
Each Borrower will supply the Agent with
a sufficient number of copies
of the documents referred
to above
to provide
one copy
for each
Creditor Party;
and if
the Agent
so requires
in respect
of
any of
those documents, the
Borrowers will
provide a certified
English translation prepared
by a
translator approved by the Agent.
11.18
Know your customer
Promptly
upon
the
Agent's
request
each
Borrower
will
supply,
or
procure
the
supply
of,
such
documentation
and
other
evidence
as
is
reasonably
requested
by
the
Agent
in
order
for
each
Creditor Party to
carry out and be satisfied with
the results of all necessary "know your
client" or
other checks which it is
required to carry out
in relation to the
transactions contemplated by
the
Finance
Documents
and
to
the
identity
of
any
parties
to
the
Finance
Documents
(other
than
Creditor Parties) and their directors and officers.
11.19
Payment of taxes
Each Borrower shall pay
when due all taxes
applicable to, or imposed on,
its business or the Ship
owned by it.
11.20
Bribery and anti-corruption laws
(a)
No Borrower shall use the
proceeds of the Loan for
any purpose which would breach
the Bribery
Act 2010,
the United
States
Foreign
Corrupt Practices
Act of
1977 or
other similar
legislation in
other jurisdictions.
(b)
Each Borrower shall
(and shall procure that
each other Security Party
and each other member of
the Group shall):
(i)
conduct its businesses in compliance with applicable anti-corruption laws; and
(ii)
maintain policies and procedures designed to promote and achieve compliance with such
laws.
11.21
Sanctions
(a)
Each Borrower
shall ensure that
none of them or
the Security Parties
nor any of
their respective
subsidiaries or any
member of the
Group, their
respective directors,
officers, employees,
agents
or representatives or any
other persons acting
on any of
their behalf, is or
will become a
Restricted
Party.
(b)
Each Borrower
shall supply to the
Agent, promptly upon
becoming aware of
them, the details
of
any inquiry, claim, action, suit, proceeding or
investigation pursuant to Sanctions by any Sanctions
Authority against a Borrower, any Security Party,
any of their respective direct or indirect owners,
their respective
subsidiaries or
any
member of
the Group,
any
of their
joint ventures
or any
of
their respective
directors, officers,
employees, agents
or representatives,
as well
as information
on what steps are being taken with regards to answer or oppose such.
(c)
Each Borrower shall (and shall procure that the other members of the Group will) implement and
maintain in effect
policies and procedures
designed to promote
and ensure compliance
by them
and their
respective directors,
officers and
employees acting
on their
behalf with
Sanctions and
anti-corruption laws and regulations.
11.22
Use of proceeds
(a)
No proceeds of
the Loan or any
part of the Loan
shall be made available,
directly or indirectly
to
or for the benefit of a Restricted Party nor shall they be otherwise directly
or indirectly, applied in
a manner or
for a
purpose prohibited by
Sanctions or could
result in the
imposition of sanctions
against any party to any Finance Document.
(b)
The Borrowers shall not repay or prepay the
Loan or any part thereof
or fund all or
any part of any
payment
under
this
Agreement
(i)
out
of
proceeds
from
funds
or
assets
that
(A)
constitute
property of, or that are beneficially owned directly or indirectly by,
any Restricted Party or (B) are
obtained or
derived from
transactions with
or relating
to any
Restricted Party
or transactions
in
violation
of
Sanctions
or
(ii)
in
any
manner
that
would
cause
any
Lender
to
be
in
violation
of
Sanctions.
12
CORPORATE UNDERTAKINGS
12.1
General
Each Borrower
also undertakes
with each Creditor
Party to
comply with the
following provisions
of this Clause
11.21
(
Corporate Undertakings
) at all times during the Security Period except as the
Agent may,
with the authorisation of the Majority Lenders, otherwise permit.
12.2
Maintenance of status
(a)
Each Borrower will
maintain its separate
corporate existence
and remain in good standing
under
the
laws
of
the
Marshall
Islands
and
will,
and
shall
procure
that
any
other
Security
Party
(as
applicable)
will,
comply
in
all
respects
with
the
Republic
of
the
Marshall
Islands
Economic
Substance Regulations 2018 (as amended from time to time).
12.3
Negative undertakings
No Borrower will:
(a)
carry on any
business other than
the ownership,
chartering and operation
of the Ship
owned by
that Borrower; or
(b)
if a Potential Event of Default or an Event of Default
has occurred and is continuing, or if an Event
of Default would
result therefrom declare,
make or pay
any dividends or return
any capital to
its
equity holders
or
authorize
or make
any
other distribution,
payment
or
delivery of
property or
cash to its equity holders, or redeem, retire,
purchase or otherwise acquire, directly or indirectly,
for value,
any interest of any class or series of its
equity interests (or acquire any rights, options
or
warrants relating thereto but not including convertible debt) now or hereafter outstanding; or
(c)
provide any form of credit or financial assistance to:
(i)
a person who is directly
or indirectly interested in that Borrower's share or
loan capital; or
(ii)
any
company
in
or
with
which
such
a
person
is
directly
or
indirectly
interested
or
connected,
or enter
into any
transaction with or
involving such a
person or company
on terms which
are, in
any respect, less favourable
to that Borrower than
those which it could obtain in
a bargain made
at arms' length; or
(d)
open or
maintain any account
with any bank
or financial
institution except accounts
with the
Agent
and the Security Trustee for the purposes of the Finance Documents; or
(e)
purchase, cancel,
redeem or
retire any
of its
issued shares
or increase
or reduce
the number
of
shares that it is authorised to issue or change the
par value of such shares or create any new class
of shares or issue
any additional shares
except to the Corporate Guarantor and
provided such new
shares are made subject to the terms of the Shares Pledge applicable to that Borrower; or
(f)
acquire any shares or
other securities other
than US or
UK Treasury bills and certificates
of deposit
issued by major
North American or European
banks, or enter
into any transaction
in a derivative
other than the Designated Transactions; or
(g)
enter
into
any
form
of
amalgamation,
merger
or
de-merger
or
any
form
of
reconstruction
or
reorganisation.
13
INSURANCE
13.1
General
Each Borrower
also undertakes
with each Creditor
Party to
comply with the
following provisions
of this Clause
13
(
Insurance
) at all times during the Security Period except as the Agent may,
with
the authorisation of the Majority Lenders, otherwise permit.
13.2
Maintenance of obligatory insurances
Each Borrower shall keep the Ship owned by it insured at the expense of that Borrower against:
(a)
fire and usual marine risks (including hull and machinery and excess risks);
(b)
war risks (including terrorism, piracy and confiscation);
(c)
protection and indemnity risks (other than loss of hire or political risks); and
(d)
any other risks against which the Security Trustee
considers, having regard to practices and other
circumstances prevailing
at the
relevant time,
it would
in the
opinion of
the Security
Trustee
be
reasonable for that
Borrower to insure
and which are specified
by the Security Trustee
by notice
to that Borrower.
13.3
Terms of obligatory
insurances
Each Borrower shall effect such insurances:
(a)
in Dollars;
(b)
in the case of fire and
usual marine risks and
war risks, (including hull
interest and freight interest)
in such amount as shall from time to time be approved
by the Security Trustee but in any event in
an amount
not less
than the
greater
of (i)
an amount
which when
aggregated
with the
insured
value of
the other
Ships then
subject to
a Mortgage,
120 per
cent. of
the aggregate
of the
Loan
and the Swap Exposure of each Swap Bank and (ii) the Market Value of the Ship owned by it;
(c)
in the
case of
hull and
machinery policy
at an
agreed insured
value
(excluding hull
interest
and
freight interest) in an amount of not less
than an amount which when
aggregated with the agreed
insured values under all
the other hull and machinery policies
for the other Ships then
subject to
a Mortgage is not less
than the principal amount
of the Loan and
the Swap Exposure of each
Swap
Bank
Provided that
the Borrowers
are in
compliance with
their obligations
under paragraph
(b)
above at all times;
(d)
in the case
of oil pollution
liability risks,
for an aggregate
amount equal
to the highest
level of cover
from
time
to
time
available
under
basic
protection
and
indemnity
club
entry
and
in
the
international marine insurance market;
(e)
in relation to protection and indemnity risks in respect
of the full tonnage of the Ship
owned by it;
(f)
on approved terms; and
(g)
through approved brokers and with approved insurance companies
and/or underwriters or, in the
case of
war
risks and
protection
and indemnity
risks, in
approved
war
risks and
protection
and
indemnity risks associations.
13.4
Further protections for the Creditor Parties
In addition
to
the terms
set out
in Clause
13.3
(
Terms
of obligatory
insurances
), each
Borrower
shall procure that the obligatory insurances effected by it shall:
(a)
subject always to
paragraph
(b)
, name
that Borrower as
the sole
named assured
unless the
interest
of every other named assured is limited:
(i)
in respect of any obligatory insurances for hull and machinery and war risks;
(A)
to any
provable out-of-pocket
expenses that it
has incurred and which
form part
of any recoverable claim on underwriters; and
(B)
to any
third party
liability claims
where cover
for
such claims
is provided
by the
policy (and then only in respect of discharge of any claims made against it); and
(ii)
in
respect
of
any
obligatory
insurances
for
protection
and
indemnity
risks,
to
any
recoveries it is entitled to make by way of reimbursement following discharge of
any third
party liability claims made specifically against it
and every other named assured has undertaken in writing
to the Security Trustee (in such form as
it
requires)
that
any
deductible
shall
be
apportioned
between
that
Borrower
and
every
other
named assured in proportion to
the gross claims made or
paid by each of them
and that it shall
do
all things necessary
and provide all
documents, evidence and
information to
enable the Security
Trustee
to
collect
or
recover
any
moneys
which
at
any
time
become
payable
in
respect
of
the
obligatory insurances;
(b)
whenever the
Security Trustee
requires, name (or
be amended to
name) the Security Trustee
as
additional named assured for its rights
and interests, warranted
no operational interest
and with
full waiver of rights
of subrogation against
the Security Trustee,
but without the Security Trustee
thereby being
liable to pay
(but having the
right to pay)
premiums, calls or
other assessments in
respect of such insurance;
(c)
name the Security Trustee as
loss payee with such directions for payment
as the Security Trustee
may specify;
(d)
provide that
all payments
by or
on behalf of
the insurers
under the obligatory
insurances to
the
Security
Trustee
shall
be
made
without
set-off,
counterclaim
or
deductions
or
condition
whatsoever;
(e)
provide that such obligatory
insurances shall be primary without right of contribution from
other
insurances which may be carried by the Security Trustee or any other Creditor Party; and
(f)
provide that the Security Trustee may make
proof of loss if that Borrower fails to do so.
13.5
Renewal of obligatory insurances
Each Borrower shall:
(a)
at least 21 days before the expiry of any obligatory insurance effected
by it:
(i)
notify
the
Security
Trustee
of
the
brokers
(or
other
insurers)
and
any
protection
and
indemnity
or
war
risks
association
through
or
with
whom
that
Borrower
proposes
to
renew that obligatory insurance and of the proposed terms of renewal; and
(ii)
obtain the Security Trustee's approval to the matters
referred to in paragraph
(i);
(b)
at least 14 days
before the expiry of
any obligatory insurance,
renew that obligatory insurance
in
accordance with the Security Trustee's approval pursuant to paragraph
(a)
; and
(c)
procure that the
approved brokers and/or the war
risks and
protection and indemnity
associations
with which such a renewal is effected shall promptly after the renewal notify the Security Trustee
in writing of the terms each conditions of the renewal.
13.6
Copies of policies; letters of undertaking
Each Borrower shall ensure that all approved brokers provide the Security Trustee with pro forma
copies of all policies relating to the obligatory insurances which they are to effect or renew and of
a
letter
or
letters
of
undertaking
in
a
form
required
by
the
Security
Trustee
and
including
undertakings by the approved brokers that:
(a)
they will have endorsed
on each policy, immediately upon
issue, a loss
payable clause and
a notice
of assignment
complying with
the provisions
of Clause
13.4
(
Further protections
for the
Creditor
Parties
);
(b)
they will hold
such policies,
and the benefit
of such insurances,
to the order
of the Security
Trustee
in accordance with the said loss payable clause;
(c)
they
will
advise
the
Security
Trustee
immediately
of
any
material
change
to
the
terms
of
the
obligatory insurances;
(d)
they
will
notify the
Security
Trustee,
not
less
than
14
days
before
the
expiry
of
the
obligatory
insurances,
in
the
event
of
their
not
having
received
notice
of
renewal
instructions
from
that
Borrower or its agents
and, in the
event of their receiving
instructions to renew, they will promptly
notify the Security Trustee of the terms of the instructions; and
(e)
they will not set
off against any
sum recoverable
in respect of a
claim relating to the
Ship owned
by that Borrower under
such obligatory insurances any
premiums or other amounts due to them
or
any
other
person
whether
in
respect
of
that
Ship
or
otherwise,
they
waive
any
lien
on
the
policies, or any sums received under them, which they
might have in respect of such premiums or
other amounts, and they will
not cancel such obligatory
insurances by reason of
non-payment of
such premiums or other amounts, and will arrange for a separate policy to be issued in respect of
that Ship forthwith upon being so requested by the Security Trustee.
13.7
Copies of certificates of entry
Each
Borrower
shall ensure
that
any
protection
and indemnity
and/or
war
risks
associations
in
which the Ship owned by it is entered provides the Security Trustee with:
(a)
a certified copy of the certificate of entry for that Ship ;
(b)
a letter or letters of undertaking in such form as may be required by the Security Trustee;
and
(c)
a
certified
copy
of
each
certificate
of
financial
responsibility
for
pollution
by
oil
or
other
Environmentally
Sensitive Material
issued by
the relevant
certifying authority
in relation
to that
Ship.
13.8
Deposit of original policies
Each
Borrower
shall
ensure
that
all
policies
relating
to
obligatory
insurances
effected
by
it
are
deposited with the approved brokers through which the insurances are effected or renewed.
13.9
Payment of premiums
Each Borrower shall
punctually pay
all premiums
or other
sums payable in
respect of
the obligatory
insurances
effected
by
it
and
produce
all
relevant
receipts
when
so
required
by
the
Security
Trustee.
13.10
Guarantees
Each Borrower
shall ensure
that any
guarantees
required by
a protection
and indemnity
or war
risks association are promptly issued and remain in full force and effect.
13.11
Restrictions on employment
No Borrower shall employ its Ship, nor shall permit it to be employed, outside the cover provided
by any obligatory insurances.
13.12
Compliance with terms of insurances
No Borrower
shall do nor
omit to
do (nor permit
to be
done or not
to be
done) any
act or thing
which would or might render any obligatory insurance invalid,
void, voidable or unenforceable or
render
any
sum
payable
under
an
obligatory
insurance
repayable
in
whole
or
in
part;
and,
in
particular:
(a)
each Borrower
shall take
all necessary action
and comply with
all requirements
which may
from
time
to
time
be
applicable
to
the
obligatory
insurances,
and
(without
limiting
the
obligation
contained in Clause
13.6(c)
(
Copies of policies; letters
of undertaking
)) ensure that
the obligatory
insurances are not made subject
to any exclusions
or qualifications to which the Security
Trustee
has not given its prior approval;
(b)
no
Borrower
shall
make
any
changes
relating
to
the
classification
or
classification
society
or
manager
or
operator
of
the
Ship
owned
by
it
approved
by
the
underwriters
of
the
obligatory
insurances;
(c)
each
Borrower
shall
make
(and
promptly
supply
copies
to
the
Agent
of)
all
quarterly
or
other
voyage declarations
which may
be required
by the
protection and
indemnity risks association
in
which the Ship
owned by it
is entered to
maintain cover for trading
to the United
States of America
and Exclusive Economic
Zone (as defined in the
United States Oil Pollution
Act 1990 or any
other
applicable legislation); and
(d)
no Borrower
shall employ
the Ship
owned by
it, nor
allow it
to be
employed, otherwise
than in
conformity with the terms and conditions of the obligatory insurances, without
first obtaining the
consent of the insurers and complying with any requirements (as
to extra premium or otherwise)
which the insurers specify.
13.13
Alteration to terms of insurances
(a)
No Borrower shall make
nor agree to any
alteration to the
terms of any
obligatory insurance nor
waive any right relating to any obligatory insurance.
(b)
Without limiting
the generality
of the
foregoing,
no Borrower
shall either
make or
agree to
any
alteration
to
the
terms
of
any
war
risks
and
allied
perils
coverage
(including
piracy
coverage)
whereby
trading
to
conditional
(excluded)
areas
not
declared
on
the
annual
policy
would
be
altered without the consent of the Agent.
13.14
Settlement of claims
No Borrower
shall settle,
compromise or
abandon any
claim under
any obligatory
insurance for
Total
Loss or
for
a Major
Casualty,
and shall
do all
things necessary
and provide
all documents,
evidence and information
to enable the Security
Trustee
to collect or
recover any moneys
which
at any time become payable in respect of the obligatory insurances.
13.15
Provision of copies of communications
Each Borrower shall provide the Security Trustee, at the time of each
such communication, copies
of all written communications between a Borrower and:
(a)
the approved brokers;
(b)
the approved protection and indemnity and/or war risks associations; and
(c)
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
(i)
that
Borrower's
obligations
relating
to
the
obligatory
insurances
including,
without
limitation, all requisite declarations and payments of additional premiums or calls; and
(ii)
any credit arrangements made between that Borrower and any of
the persons referred to
in paragraphs
(a)
or
(b)
relating
wholly or
partly to
the effecting
or maintenance
of the
obligatory insurances.
13.16
Provision of information
In addition,
each Borrower
shall promptly
provide the
Security Trustee
(or any
persons which
it
may designate) with any
information which the Security
Trustee
(or any such designated
person)
requests for the purpose of:
(a)
obtaining
or
preparing
any
report
from
an
independent
marine
insurance
broker
as
to
the
adequacy of the obligatory insurances effected or proposed to be effected; and/or
(b)
effecting,
maintaining
or
renewing
any
such
insurances
as
are
referred
to
in
Clause
13.17
(
Mortgagee's interest insurances
) below or dealing
with or considering
any matters relating to any
such insurances,
and the Borrowers shall, forthwith
upon demand, indemnify the Security Trustee
in respect of all
fees and other expenses incurred by or for the account of the Security Trustee in connection with
any such report as is referred to in paragraph
(a).
13.17
Mortgagee's interest insurances
The
Security
Trustee
shall
be
entitled
from
time
to
time
to
effect,
maintain
and
renew
a
mortgagee's
interest
marine
insurance
policy
in
such
amounts,
on
such
terms,
through
such
insurers
and
generally
in
such manner
as the
Security Trustee
may
from
time to
time consider
appropriate and each Borrower shall upon demand fully indemnify the Creditor Parties in respect
of
all
premiums
and
other
expenses
which
are
incurred
in
connection
with
or
with
a
view
to
effecting, maintaining or renewing any such insurance or dealing with, or considering, any matter
arising out of any such insurance.
13.18
Review of insurance requirements
The Agent shall be entitled to review
the requirements of this Clause
13
(
Insurance
) from time to
time in
order to
take
account of
any changes
in circumstances
after the
date of
this Agreement
which the Agent
reasonably considers significant
and capable
of affecting the Borrowers,
the Ships
and
their
Insurances
(including,
without
limitation,
changes
in
the
availability
or
the
cost
of
insurance
coverage
or
the
risks
to
which
each
Borrower
may
be
subject),
and
may
appoint
insurance consultants in relation to this review at the cost of that Borrower.
13.19
Modification of insurance requirements
The Agent shall notify the Borrowers of any proposed modification under Clause
13.18
(
Review of
insurance
requirements
)to
the
requirements
of
this
Clause
13
(
Insurance
)
which
the
Agent
reasonably considers appropriate in the circumstances, and such modification shall take effect on
and from the date
it is notified
in writing to the
relevant Borrower as an
amendment to this
Clause
13
(
Insurance
) and shall bind that Borrower accordingly.
13.20
Compliance with mortgagee's instructions
The Agent shall
be entitled
(without prejudice
to or limitation
of any other
rights which
it may have
or acquire under
any Finance Document)
to require a Ship
to remain at any
safe port or to
proceed
to
and
remain
at
any
safe
port
designated
by
the
Agent
until
the
Borrower
owning
that
Ship
implements
any
amendments
to
the
terms
of
the
obligatory
insurances
and
any
operational
changes
required
as
a
result
of
a
notice
served
under
Clause
13.19
(
Modification
of
insurance
requirements
).
14
SHIP COVENANTS
14.1
General
Each Borrower
also undertakes
with each Creditor
Party to
comply with the
following provisions
of this Clause
14
(
Ship covenants
) at all times during the Security Period except as the Agent, with
the authorisation of the Majority Lenders, may
otherwise permit (and in the case of Clauses
14.2
(
Ship's name and registration
) and
14.15
(e)
(
Restrictions on chartering, appointment of managers
etc
.), such permission not to be unreasonably withheld).
14.2
Ship's name and registration
Each Borrower shall
keep the Ship
owned by it
registered in its
name under an
Approved Flag; shall
not do,
omit to
do or
allow to
be done
anything as
a result
of which
such registration
might be
cancelled or imperilled; and shall not change the name or port
of registry of the Ship owned by it.
14.3
Repair and classification
Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
(a)
consistent with first class ship ownership and management practice;
(b)
so
as
to
maintain
the
highest
class
free
of
overdue
recommendations
and
conditions
with
a
classification society which is a member of IACS acceptable to the Agent; and
(c)
so
as
to
comply
with
all
laws
and
regulations
applicable
to
vessels
registered
at
ports
in
the
applicable
Approved
Flag State
or
to
vessels
trading
to
any
jurisdiction to
which that
Ship may
trade from time to time, including but not limited to the ISM Code and the ISPS Code.
14.4
Classification society undertaking
Each
Borrower
shall
instruct
the
classification
society
referred
to
in
Clause
14.3
(
Repair
and
classification
):
(a)
to send to
the Security Trustee,
following receipt of
a written request
from the Security
Trustee,
certified true copies of
all original class records
held by the classification
society in relation
to its
Ship;
(b)
to
allow the
Security Trustee
(or
its agents),
at
any
time and
from
time to
time, to
inspect the
original class and related
records of its
Ship at the offices of
the classification society and to
take
copies of them;
(c)
to notify the Security Trustee immediately in writing if the classification society:
(i)
receives notification
from that
Borrower or
any other person
that its Ship's
classification
society is to be changed; or
(ii)
becomes aware of
any facts or matters
which may result in
or have resulted
in a change,
suspension, discontinuance,
withdrawal
or expiry
of that
Ship's class
under the
rules or
terms
and
conditions
of
that
Borrower's
or
its
Ship's
membership
of
the
classification
society; and
(d)
following receipt of a written request from the Security Trustee:
(i)
to confirm that
a Borrower is
not in default
of any of
its contractual obligations
or liabilities
to the
classification society and,
without limiting the
foregoing, that
it has paid
in full all
fees or other charges due and payable to the classification society; or
(ii)
if
a
Borrower
is
in
default
of
any
of
its
contractual
obligations
or
liabilities
to
the
classification society,
to specify to
the Security Trustee
in reasonable detail
the facts and
circumstances of such default,
the consequences of such default,
and any remedy period
agreed or allowed by the classification society.
14.5
Modification
No Borrower shall make any modification or repairs to, or replacement
of, the Ship owned by it or
equipment
installed
on
that
Ship
which
would
or
might
materially
alter
the
structure,
type
or
performance characteristics of that Ship or materially reduce its value.
14.6
Removal of parts
No Borrower
shall remove
any material
part of
the Ship
owned by
it, or
any item
of equipment
installed on, that Ship unless the part or
item so removed is forthwith
replaced by a suitable part
or item which
is in the
same condition as
or better condition than
the part or
item removed, is
free
from any Security Interest or any right in favour of any
person other than the Security
Trustee and
becomes on
installation
on that
Ship the
property of
that Borrower
and subject
to the
security
constituted by the relevant Mortgage
Provided that
a Borrower may install equipment owned by
a third party
if the equipment can
be removed without any
risk of damage to
the Ship owned by
it.
14.7
Surveys
Each Borrower shall submit the Ship owned by it regularly to all periodical or other surveys which
may be required for classification purposes and, if so required by the Security Trustee provide the
Security Trustee, with copies of all survey reports.
14.8
Inspection
Each Borrower shall permit the
Security Trustee (by surveyors or other persons appointed
by it for
that purpose) to
board the Ship owned
by it at
all reasonable times to
inspect its condition or
to
satisfy themselves about
proposed or executed repairs
and shall afford all
proper facilities for such
inspections.
14.9
Prevention of and release from arrest
Each Borrower shall promptly discharge:
(a)
all liabilities which give
or may give
rise to maritime or
possessory liens on or claims enforceable
against the Ship owned by it, the Earnings or the Insurances;
(b)
all taxes, dues and other amounts
charged in respect of the Ship owned by
it, the Earnings or the
Insurances; and
(c)
all other outgoings whatsoever in respect of the Ship owned by it, the Earnings or the Insurances,
and, forthwith
upon receiving notice
of the
arrest of
the Ship
owned by
it, or of
its detention
in
exercise
or
purported
exercise
of
any
lien
or
claim,
that
Borrower
shall
procure
its
release
by
providing bail or otherwise as the circumstances may require.
14.10
Compliance with laws etc.
Each Borrower shall:
(a)
comply,
or
procure
compliance
with
the
ISM
Code,
the
ISPS
Code,
all
Environmental
Laws,
all
Sanctions
and
all
other
laws
or
regulations
relating
to
the
Ship
owned
by
it,
its
ownership,
operation and management or to the business of that Borrower;
(b)
not employ the Ship owned by
it nor allow its employment
in any manner contrary
to any law
or
regulation in any relevant jurisdiction
including but not
limited to the ISM
Code, the ISPS
Code and
all Sanctions; and
(c)
in the event
of hostilities in
any part of
the world (whether
war is
declared or not),
not cause or
permit the
Ship owned
by it
to enter
or trade
to any
zone which
is declared
a war
zone by
any
government
or
by
the Ship's
war
risks
insurers
unless the
prior written
consent
of
the Security
Trustee
has been given and that
Borrower has (at
its expense) effected
any special, additional or
modified insurance cover which the Security Trustee may require.
14.11
Environmental
compliance
Each Borrower shall, and shall procure that the Corporate Guarantor will:
(a)
comply with all Environmental Laws applicable to it;
(b)
obtain, maintain and ensure compliance with all requisite Environmental Approvals;
(c)
implement
procedures
to
monitor
compliance
with
and
to
prevent
liability
under
any
Environmental Law applicable to it,
(d)
where failure to do so has or is reasonably likely to have a Material Adverse Effect
.
14.12
Environmental Claims
Each
Borrower
shall,
and
shall
procure
that
the
Corporate
Guarantor
shall
promptly
upon
becoming aware of the same, inform the Agent in writing of:
(a)
any
Environmental
Claim
against
any
member
of
the
Group
which
is
current,
pending
or
threatened; and
(b)
any facts or circumstances which are
reasonably likely to result in any
Environmental Claim being
commenced or threatened against any member of the Group,
(c)
where the
claim, if
determined against
that member
of the
Group, has
or is
reasonably
likely to have a Material Adverse Effect
.
14.13
Provision of information
Each Borrower shall promptly provide the Security Trustee with any information which it requests
regarding:
(a)
the Ship owned by it, its employment, position and engagements;
(b)
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
(c)
any expenses incurred, or likely to be incurred, in connection with the operation, maintenance or
repair of the Ship owned by it and any payments made in respect of that Ship;
(d)
any towages and salvages; and
(e)
its compliance, the Approved
Manager's compliance and the compliance
of the Ship owned
by it
with the ISM Code, the ISPS Code and all Sanctions,
and,
upon
the
Security
Trustee's
request,
provide
copies
of
any
current
charter
and
charter
guarantee
relating
to
the
Ship
owned
by
it
and
copies
of
that
Borrower's
or
the
Approved
Manager's Document of Compliance.
14.14
Notification of certain events
Each Borrower shall immediately notify the Security Trustee by fax, confirmed forthwith, by letter
of:
(a)
any casualty which is or is likely to be or to become a Major Casualty;
(b)
any occurrence as a result of which the Ship owned by it
has become or is, by the passing of time
or otherwise, likely to become a Total Loss;
(c)
any
requirement
or
recommendation
made
by
any
insurer
or
classification
society
or
by
any
competent authority which is not immediately complied with;
(d)
any arrest or detention
of the Ship owned by it, any
exercise or purported exercise
of any lien on
that Ship or its Earnings or any requisition of that Ship for hire;
(e)
any intended dry docking of the Ship owned by it;
(f)
any Environmental Claim made against that Borrower or in connection with the Ship owned by it,
or any Environmental Incident;
(g)
any
claim
for
breach of
the ISM
Code or
the
ISPS Code
being made
against
that
Borrower,
the
Approved Manager or otherwise in connection with the Ship owned by it; or
(h)
any other matter,
event or incident, actual or threatened, the effect of which will or could lead to
the ISM Code or the ISPS Code not being complied with
and that Borrower shall keep the Security Trustee advised in writing on
a regular basis and in such
detail
as
the
Security Trustee
shall
require
of
that
Borrower's,
the
Approved
Manager's
or
any
other person's response to any of those events or matters.
14.15
Restrictions on chartering, appointment of managers etc.
No Borrower shall, in relation to the Ship owned by it:
(a)
let that Ship on demise charter for any period;
(b)
enter into any time
or consecutive voyage charter
in respect of
that Ship for
a term which
exceeds,
or which by virtue of any optional extensions may exceed, 24 months;
(c)
enter
into any
charter in
relation to
that Ship
under which
more than
two months'
hire (or
the
equivalent) is payable in advance;
(d)
charter that
Ship otherwise
than on
bona fide
arm's length
terms at
the time
when that
Ship is
fixed;
(e)
appoint a
manager of
that Ship
other than
the Approved
Manager or
agree to
any alteration
to
the terms of the Approved Manager's appointment;
(f)
de activate or lay-up that Ship; or
(g)
put that Ship into
the possession of any person
for the purpose of work
being done upon it in an
amount exceeding or likely to
exceed $1,000,000 (or the equivalent in any other currency) unless
that
person
has
first
given
to
the
Security
Trustee
and
in
terms
satisfactory
to
it
a
written
undertaking not
to exercise
any lien
on that
Ship or
its Earnings
for the
cost of
such work
or for
any other reason.
14.16
Notice of Mortgage
Each
Borrower
shall
keep
the
Mortgage
registered
against
the
Ship owned
by
it as
a
valid
first
priority or preferred mortgage, carry on board
that Ship a certified
copy of the such
Mortgage and
place and maintain
in a conspicuous place
in the navigation
room and the
Master's cabin of
that
Ship a framed printed notice
stating that that Ship is mortgaged
by that Borrower to the
Security
Trustee.
14.17
Sharing of Earnings
No Borrower shall:
(a)
enter into any agreement or arrangement for the sharing of any Earnings;
(b)
enter into any
agreement or
arrangement for the
postponement of
any date on
which any
Earnings
are due; and
(c)
permit
the
reduction
of
the
amount
of
any
Earnings
or
otherwise
for
the
release
or
adverse
alteration of any right of that Borrower to any Earnings.
14.18
ISPS Code
Each Borrower shall comply with the ISPS Code and in particular, without limitation, shall:
(a)
procure that
the Ship
owned by
it and
the company
responsible for
that Ship's
compliance with
the ISPS Code comply with the ISPS Code;
(b)
maintain for that Ship an ISSC; and
(c)
notify
the
Agent
immediately
in
writing
of
any
actual
or
threatened
withdrawal,
suspension,
cancellation or modification of the ISSC.
14.19
Charterparty Assignment
If a Borrower enters into any Charter (subject to obtaining
the consent of the Agent in
accordance
with Clause
14.15(b)
(
Restrictions on
chartering, appointment
of managers
etc
.)), that
Borrower
shall
at
the
request
of
the
Agent
execute
in
favour
of
the
Security
Trustee
(and
register,
if
applicable) a Charterparty Assignment and shall:
(a)
serve
notices
of
the
Charterparty
Assignment on
the Charterer
and
procure
that
the
Charterer
acknowledges such notice in such form as the Agent may approve or require; and
(b)
deliver to the Agent such other documents equivalent to those referred to at paragraphs 3, 4 and
5 of
Part A
of
Schedule 3
(
Conditions precedent documents
), as the Agent may require.
14.20
Poseidon Principles
Each Borrower shall, upon the request by a Lender and at the cost of the Borrowers, on or before
31st July in each calendar year,
supply or procure the supply by the relevant
classification society
to the
Agent of
all information
necessary in order
for such
Lender to
comply with its
obligations
under the
Poseidon Principles
in respect
of the
preceding year,
including, without
limitation, all
ship fuel
oil consumption
data required to
be collected
and reported
in accordance
with Regulation
22A of Annex
VI and any
Statement of
Compliance, in each case
relating to
the Ship owned by
it
for the preceding
calendar year
provided always that,
for the avoidance
of doubt,
such information
shall be
confidential information
but each
Borrower acknowledges
that, in
accordance with
the
Poseidon Principles,
such information
will form
part of
the information
published regarding
the
relevant Lender's portfolio climate alignment and that a Lender may disclose such information: (i)
either
to
any
classification
society
or
other
entity
which
a
Lender
has
engaged
to
make
the
calculations
necessary to
enable that
Lender to
comply with
its reporting
obligations
under the
Poseidon
Principles
(such
calculations
to
be
made
at
the
cost
of
the
relevant
Lender)
or
(ii)
as
otherwise permitted under the terms of this Agreement.
14.21
Inventory of Hazardous Material
Each Borrower shall procure that, on the date falling 18 months after the date of this Agreement,
its Ship has obtained an Inventory of Hazardous Material, which shall be maintained until the end
of the Security Period.
14.22
Sustainable and socially responsible dismantling of ships
(a)
Each Borrower
shall (and shall procure
that each other
member of the Group
shall) procure that
for the duration of the Security Period:
(b)
the Ship owned by it or any other
Fleet Vessel shall be 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
Convention (in the event
that the Approved
Flag State is not
an EEA
Member Country) or the EU Ship Recycling
Regulation (in the event
that the Approved Flag State
is an EEA Member Country); or
(c)
where the
Ship owned by
it or any
other Fleet Vessel
is sold
to an
intermediary (whether or
not
with
the
intention
of
being
recycled),
it
shall
provide
the
intermediary
with
any
ship-relevant
information in its possession which it considers necessary for the development of a ship recycling
plan in accordance with the EU Ship Recycling Regulation.
14.23
Sanctions provisions
Without limiting Clause
14.10
(
Compliance with laws etc.
), each Borrower:
(a)
shall, and shall procure that
the Ship owned by it and each
Security Party shall, and, in respect of
any
charterer,
shall use
all reasonable
endeavours
to
procure
that the
Charterer
and any
other
charterer in respect of its Ship
shall, comply in all respects
with all laws to which it
may be subject,
including, without limitation, all national and
international laws, derivatives, regulations, decrees,
rulings and such analogous rules, including, but not limited to, rules relating to Sanctions.
(b)
undertakes to make
the Charterer and all other charterers
and operators of the
Ship owned by it
aware of the requirements of this Clause and Clause
10.18
(
Sanctions
) and shall procure that they
act in accordance with these requirements.
14.24
Change of Approved Manager
(a)
Each
Borrower
may,
at
its
sole
discretion,
at
any
time
during
the
Security
Period,
change
the
Approved Manager
of its
Ship from
Diana Shipping
Services S.A.
to Diana
Wilhelmsen Management
Limited,
provided that
the Borrowers shall give the Agent five Business' Days
prior written notice
and shall provide the Agent no later than the date of such change with:
(b)
documents of
the kind specified
in paragraphs
2
,
3
,
5
, and
10
of
Part A
of
Schedule 3
(
Condition
precedent documents
) in respect of Diana Wilhelmsen Management Limited;
(c)
the documents
referred to in
paragraph
3
of
Part B
of
Schedule 3
(
Condition precedent
documents
);
and
(d)
any other documents that the Agent may reasonably require.
15
SECURITY COVER
15.1
Minimum required security cover
Clause
15.2 (
Provision of additional
security; prepayment
) applies if
at any relevant time
during the
Security Period, the Agent notifies the Borrowers that:
(i)
(a)
the aggregate of the Market Value of the Ships then subject to a Mortgage;
plus
(ii)
(b)
the net realisable value
of any additional
security previously provided under
this
Clause
15
(
Security cover
),
(b)
(the "
Security Cover Ratio
") is below:
(c)
(i)
154 per
cent.
of the
Loan, for
the period starting
on the
date of
this Agreement
and ending on the date falling six months after the Drawdown Date; or
(ii)
125 per cent.
of the Loan and
the Swap Exposure for the remainder
of the Security Period.
15.2
Provision of additional security; prepayment
If
the
Agent
serves
a
notice
on
the
Borrowers
under
Clause
15.1
(
Minimum
required
security
cover
):
(a)
in
the
case
of
Clause
15.1
(i)
(
Minimum
required
security
cover
)
the
Borrowers
shall
at
least
1
Business Day
before the date
falling one
month after the
date on
which the
Agent's notice
is served
under
Clause
15.1
(
Minimum
required
security
cover
)
(the
"
Prepayment
Date
")
have
provided
additional security which,
in the opinion
of the Majority
Lenders, has a net
realisable value at least
equal to the
shortfall and is
documented in such terms
as the Agent may,
with the authorisation
of the Majority Lenders, approve or require;
and
(b)
in the case
of Clause
15.1
(ii) (
Minimum required security
cover
) the
Borrowers shall
prepay such
part at least
of the Loan
as will eliminate
the shortfall on
or before
the Prepayment Date,
unless
at
least
1
Business
Day
before
the
Prepayment
Date
the
Borrowers
have
provided
additional
security which, in the opinion of the Majority Lenders,
has a net realisable value at
least equal to
the shortfall
and is
documented
in such
terms as
the Agent
may,
with the
authorisation of
the
Majority Lenders, approve or require.
15.3
Valuation of Ships
The Market
Value
of a
Ship (or
any other
Fleet Vessel)
at any
date during
the Security
Period is
that shown by a valuation to be prepared:
(a)
as at a date not more than 14 days previously;
(b)
by an Approved Broker (selected by the Borrowers and appointed by the Agent);
(c)
with or without physical inspection of the Ship (as the Agent may require);
(d)
on
the basis
of
a sale
for
prompt
delivery for
cash
on
normal
arm's length
commercial
terms as between a willing seller and a willing buyer,
free of any existing charter or other
contract of employment; and
(e)
after deducting the estimated amount
of the usual and
reasonable expenses which would
be incurred in connection with the sale,
Provided that
if the Agent
reasonably determines that
the Market
Value of
the Ship shown
by a
valuation
prepared in
accordance with
this Clause
15.3
(
Valuation
of Ships
) does
not accurately
reflect the value
of that
Ship, it
shall have the
right to
appoint (at
the Borrowers' expense)
a second
Approved
Broker
to
provide
a
valuation
of
that
Ship
addressed
to
the
Agent
and
prepared
in
accordance
with
the
terms
of
this
Agreement
and
the
Market
Value
of
that
Ship
shall
be
the
arithmetic average of the two valuations.
15.4
Value of additional security
The net realisable value of
any additional security which is
provided under Clause
15.2
(
Provision
of additional security; prepayment
) shall be determined as follows:
(a)
if it consists of a Security Interest over
a vessel shall be that shown by a valuation complying with
the requirements of Clause
15.3
(
Valuation of Ships
); and
(b)
if it consists of cash, the US Dollar amount thereof.
15.5
Valuations binding
Any valuation
under Clauses
15.2
(
Provision of
additional security; prepayment
),
15.3
(
Valuation
of
Ships
)
or
15.4
(
Value
of
additional
security
)
shall
be
binding
and
conclusive
as
regards
the
Borrowers, as
shall be any
valuation which
the Majority Lenders
make of
any additional security
which does not consist of or include a Security Interest.
15.6
Provision of information
The Borrowers
shall promptly
provide the
Agent and
the Approved
Broker
acting under
Clauses
15.3
(
Valuation
of
Ships
)
or
15.4
(
Value
of
additional security
)
with
any
information
which
the
Agent or the
Approved Broker may request
for the purposes
of the
valuation; and,
if the
Borrowers
fail to provide the information by the date specified in
the request, the valuation may be made on
any
basis
and
assumptions
which
the
Approved
Broker
or
the
Majority
Lenders
(or
the
expert
appointed by them)
consider prudent. For
the avoidance of
doubt, the Security Cover
Ratio shall
be tested on
the date
falling six
months after
the Drawdown Date
and thereafter
once per
calendar
year or at such other times as may be requested by the Agent.
15.7
Payment of valuation expenses
Without
prejudice
to
the
generality
of
the
Borrowers'
obligations
under
Clauses
20.2
(
Costs
of
negotiation, preparation etc
.),
20.3
(
Costs of variations, amendments, enforcement etc
.) and
21.2
(
Miscellaneous indemnities
), the
Borrowers
shall, on
demand, pay
the Agent
the amount
of the
fees and expenses of the Approved
Broker instructed by the Agent
under this Clause and all legal
and other
expenses incurred
by any
Creditor Party
in connection
with any
matter
arising out
of
this
Clause
(provided
that,
other
than
the
valuation(s)
obtained
for
the
purpose
of
testing
the
Security Cover Ratio
on the date
falling six months
after the Drawdown
Date) no
more than one
valuation per Ship subject to
a Mortgage per year and,
if required by the Agent pursuant
to Clause
15.3
(
Valuation of Ships
), one additional valuation
per such Ship per
year shall be payable
by the
Borrowers,
save
for
if
an
Event
of
Default
has
occurred
which
is
continuing
in
which
case
the
Borrowers
shall be liable to
pay for all
valuations that take
place during the period such
Event of
Default is continuing)
and all
legal and other
expenses incurred by
any Creditor Party in
connection
with any matter arising out of this Clause.
15.8
Application of prepayment
Clause
8.11 (
Application of partial
prepayment
) shall apply
in relation to any
prepayment pursuant
to Clause
15.1
(
Security cover
).
16
PAYMENTS
AND CALCULATIONS
16.1
Currency and method of payments
All payments to
be made by the
Lenders or by
any Borrower
under a Finance Document
shall be
made to the Agent or to the Security Trustee, in the case of an amount payable to it:
(a)
by not later than 11.00 a.m. (New York City time) on the due date;
(b)
in same day
Dollar funds
settled through the
New York Clearing House
Interbank Payments System
(or in
such other
Dollar funds
and/or settled
in such
other manner
as the
Agent shall
specify as
being
customary
at
the
time
for
the
settlement
of
international
transactions
of
the
type
contemplated by this Agreement);
(c)
in the case of
an amount payable
by a Lender to
the Agent or
by a Borrower
to the Agent or
any
Lender, to such account as the Agent
may from time to time
notify to the
Borrowers and the other
Creditor Parties; and
(d)
in the case of
an amount payable to
the Security Trustee,
to such account as
it may from
time to
time notify to the Borrowers and the other Creditor Parties.
16.2
Payment on non-Business Day
If any
payment
by any
Borrower
under a
Finance Document
would otherwise
fall
due on
a day
which is not a Business Day:
(a)
the due date shall be extended to the next succeeding Business Day; or
(b)
if the next succeeding
Business Day falls in
the next calendar
Month, the due
date shall be brought
forward to the immediately preceding Business Day,
and interest shall be payable during any extension under paragraph
(a)
at the rate payable on the
original due date.
16.3
Basis for calculation of periodic payments
All interest and commitment fee and any other payments under any Finance
Document which are
of an annual
or periodic nature
shall accrue from
day to day
and shall be calculated
on the basis
of the actual number of days elapsed and a 360 day year.
16.4
Distribution of payments to Creditor Parties
Subject to
Clauses
16.5
(
Permitted
deductions by
Agent
),
16.6
(
Agent only
obliged to
pay when
monies received
) and
16.7
(
Refund to Agent of monies not received
):
(a)
any amount received
by the Agent under
a Finance Document for
distribution or remittance
to a
Lender, the Swap Bank or
the Security
Trustee shall be made
available by the Agent
to that Lender,
the Swap
Bank or,
as the
case may
be, the
Security Trustee
by payment,
with funds
having the
same value as the funds received,
to such account as such Lender,
the Swap Bank or the Security
Trustee may
have notified to the Agent not less than five Business Days previously; and
(b)
amounts to be applied in satisfying amounts
of a particular category which are due
to the Lenders
and/or the
Swap Bank
generally shall
be distributed
by the
Agent to
each Lender
and the
Swap
Bank pro rata to the amount in that category which is due to it.
16.5
Permitted deductions by Agent
Notwithstanding any other
provision of this
Agreement or any
other Finance
Document, the Agent
may, before making an amount available to a Lender or the
Swap Bank, deduct and
withhold from
that amount
any sum which
is then due
and payable to
the Agent from
that Lender or
the Swap
Bank under any Finance Document
or any sum which the
Agent is then entitled under
any Finance
Document to require that Lender or the Swap Bank to pay on demand.
16.6
Agent only obliged to pay when monies received
Notwithstanding any other
provision of this
Agreement or any
other Finance
Document, the Agent
shall not be obliged
to make
available to
any Borrower or
any Lender or the
Swap Bank any
sum
which the
Agent
is expecting
to
receive
for
remittance
or
distribution to
that Borrower
or
that
Lender or the Swap Bank until the Agent has satisfied itself that it has received that sum.
16.7
Refund to Agent of monies not received
If and to the extent
that the Agent makes
available a sum to
a Borrower or a Lender or
the Swap
Bank, without first having received that sum, that Borrower or (as the case may be) the Lender or
the Swap Bank concerned shall, on demand:
(a)
refund the sum in full to the Agent; and
(b)
pay to
the Agent
the amount
(as certified
by the
Agent) which
will indemnify
the Agent
against
any funding or other loss, liability or expense incurred by the Agent as a result of making the sum
available before receiving it.
16.8
Agent may assume receipt
Clause
16.7
(
Refund to
Agent of
monies not received
) shall not
affect any
claim which the
Agent
has under
the law
of restitution,
and applies
irrespective of
whether the
Agent had
any form
of
notice that it had not received the sum which it made available.
16.9
Creditor Party accounts
Each
Creditor Party
shall maintain
accounts showing
the amounts
owing to
it by
the Borrowers
and
each
Security
Party
under
the
Finance
Documents
and
all
payments
in
respect
of
those
amounts made by the Borrowers and any Security Party.
16.10
Agent's memorandum account
The Agent shall maintain a memorandum account showing the amounts advanced
by the Lenders
and all other sums owing to the Agent, the Security Trustee
and each Lender from the Borrowers
and
each
Security
Party
under
the
Finance
Documents
and
all
payments
in
respect
of
those
amounts made by the Borrowers and any Security Party.
16.11
Accounts prima facie evidence
If
any
accounts
maintained
under
Clauses
16.9
(
Creditor
Party
accounts
)
and
16.10
(
Agent's
memorandum
account
)
show
an
amount
to
be
owing
by
a
Borrower
or
a
Security
Party
to
a
Creditor
Party,
those
accounts
shall
be
prima facie
evidence that
that
amount
is
owing
to
that
Creditor Party.
17
APPLICATION OF RECEIPTS
17.1
Normal order of application
Except
as
any
Finance
Document
may
otherwise
provide,
any
sums
which
are
received
or
recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
(a)
FIRST:
in
or
towards
satisfaction
of
any
amounts
then
due
and
payable
under
the
Finance
Documents in the following order and proportions:
(i)
first, in
or towards satisfaction
pro rata of
all amounts
then due
and payable
to the
Creditor
Parties under the Finance
Documents other than
those amounts referred to at
paragraphs
(ii)
and
(iii)
(including, but without limitation, all amounts payable by any Borrower under
Clauses
20
(
Fees and
expenses
),
21
(
Indemnities
) and
22
(
No set-off
or Tax
Deduction
) of
this
Agreement
or
by
any
Borrower
or
any
Security
Party
under
any
corresponding
or
similar provision in any other Finance Document);
(ii)
secondly,
in or towards satisfaction
pro rata of
any and all amounts of
interest or default
interest
payable
to
the
Creditor
Parties
under
the
Finance
Documents
(and,
for
this
purpose, the
expression "
interest
" shall
include any
net amount
which a
Borrower shall
have
become
liable
to
pay
or
deliver
under
section
2(e)
(
Obligations
)
of
the
Master
Agreement
but
shall
have
failed
to
pay
or
deliver
to
the
Swap
Bank
at
the
time
of
application or distribution under this Clause
17
(
Application of receipts
)); and
(iii)
thirdly, in or towards
satisfaction pro rata of the Loan and the Swap Exposure (in the case
of the latter, calculated as at the actual Early Termination Date applying to each particular
Designated
Transaction,
or
if
no
such
Early
Termination
Date
shall
have
occurred,
calculated
as
if
an
Early
Termination
Date
occurred
on
the
date
of
application
or
distribution hereunder);
(b)
SECONDLY:
in retention of
an amount equal
to any amount
not then due and
payable under any
Finance Document but which the
Agent, by notice to
the Borrowers, the
Security Parties and the
other Creditor Parties,
states in its
opinion will
either or
may become due
and payable in
the future
and,
upon
those
amounts
becoming
due
and
payable,
in
or
towards
satisfaction
of
them
in
accordance with the provisions of Clause
17.1(a)
(
Normal order of application
); and
(c)
THIRDLY:
any surplus
shall be
paid to
the Borrowers or
to any
other person
appearing to
be entitled
to it.
17.2
Variation of order of application
The Agent
may,
with the
authorisation of the
Majority Lenders
and the
Swap Bank,
by notice
to
the Borrowers, the Security
Parties and the other Creditor
Parties provide for
a different manner
of application from that
set out in
Clause
17.1 (
Application of receipts
) either as
regards a specified
sum or sums or as regards sums in a specified category or categories.
17.3
Notice of variation of order of application
The Agent may
give notices
under Clause
17.2 (
Variation of order
of application
) from time
to time;
and such a notice may be stated to apply not only to sums which may be received or recovered in
the future, but
also to any
sum which
has been
received or recovered
on or after
the third Business
Day before the date on which the notice is served.
17.4
Appropriation rights overridden
This Clause
17
(
Application of
receipts
) and
any notice
which the
Agent gives
under Clause
17.2
(
Variation
of
order
of
application
)
shall
override
any
right
of
appropriation
possessed,
and
any
appropriation made, by any Borrower or any Security Party.
18
APPLICATION OF EARNINGS
18.1
Payment of Earnings
Each Borrower undertakes with
each Creditor Party to
ensure that, throughout
the Security
Period
(and subject only to the provisions of the
General Assignment to which it is a party)
all Earnings of
the Ship owned by it (including but not limited to any sale and/or insurance proceeds) are paid to
the Earnings Account for that Ship.
18.2
Location of accounts
Each Borrower shall promptly:
(a)
comply with any requirement
of the Agent as
to the location or
re location of its
Earnings Account;
and
(b)
execute any
documents which the Agent
specifies to create
or maintain in
favour of the
Security
Trustee
a Security Interest
over (and/or
rights of set-off,
consolidation or other
rights in relation
to) its Earnings Account.
18.3
Debits for expenses etc.
The
Agent
shall
be
entitled
(but
not
obliged)
from
time
to
time
to
debit
any
Earnings
Account
without prior notice in order
to discharge any
amount due and payable
under Clause
20
or
21
to
a Creditor
Party or
payment of
which any
Creditor Party
has become
entitled to
demand under
Clause
20
(
Fees and expenses
) or
21
(
Indemnities
).
18.4
Borrowers' obligations unaffected
The provisions of this Clause
18
(
Application of Earnings
) do not affect:
(a)
the liability of the Borrowers to make payments of principal and interest on the due dates; or
(b)
any
other
liability
or
obligation
of
the
Borrowers
or
any
Security
Party
under
any
Finance
Document.
18.5
Earnings Accounts balances
Subject
to
the
other
terms
of
this
Agreement
(including,
without
limitation,
the
terms
of
this
Clause
18
(
Application of Earnings
)), the monies on the Earnings
Account shall be freely available
to the Borrowers to be used in
accordance with and in compliance with the terms and conditions
of this
Agreement subject
to no
Event of Default
having occurred
which is
continuing and
the Agent
having given notice
to the Borrowers
that such monies shall
not be freely
available as a
result of
such Event of Default.
19
EVENTS OF DEFAULT
19.1
Events of Default
An Event of Default occurs if:
(a)
any Borrower
or any
Security Party
fails to
pay when
due or
(if so
payable) on
demand any
sum
payable under a Finance Document or under any document relating to a Finance Document; or
(b)
any
breach
occurs
of
Clauses
9.2
(
Waiver
of
conditions precedent
),
10.17
(
No
immunity
),
10.18
(
Sanctions
),
11.2 (
Title; negative
pledge
),
11.3 (
No disposal
of assets
),
11.9 (
Consents
),
11.18 (
Know
your
customer
),
11.20
(
Bribery
and
anti-corruption
laws
),
11.21
(
Sanctions
),
11.22
(
Use
of
proceeds
),
12.2
(
Maintenance
of
status)
,
12.3
(
Negative
undertakings
),
13.2
(
Maintenance
of
obligatory
insurances
),
13.3
(
Terms
of
obligatory
insurances
),
15.1
(
Minimum
required
security
cover
),
15.2
(
Provision
of
additional
security;
prepayment
)
and
12.4
(
Compliance
Check)
of
the
Corporate Guarantee; or
(c)
any breach by any
Borrower or any Security Party occurs
of any provision of a
Finance Document
(other
than
a
breach
covered
by
paragraphs
(a)
or
(b)
)
which,
in
the
opinion
of
the
Majority
Lenders,
is
capable
of
remedy,
and
such
default
continues
un-remedied
ten
days
after
written
notice from the Agent requesting action to remedy the same; or
(d)
(subject
to
any
applicable
grace
period
specified
in
the
Finance
Document)
any
breach
by
any
Borrower or any
Security Party
occurs of any
provision of
a Finance
Document (other
than a
breach
falling within paragraphs
(a)
,
(b)
or
(c)
); or
(e)
any representation, warranty or statement made or repeated by, or by an officer of, the Borrower
or
a
Security
Party
in
a
Finance
Document
or
in
the
Drawdown
Notice
or
any
other
notice
or
document relating
to a
Finance Document is
materially untrue
or misleading when
it is
made or
repeated; or
(f)
any of the
following occurs in
relation to any
Financial Indebtedness of a Relevant
Person (in
the
case
of
all
Relevant
Persons
(taken
as
a
whole)
exceeding
in
aggregate
$10,000,000
(or
the
equivalent in any other currency)
at any relevant time
Provided that
in the case of
each Borrower,
individually,
any
Financial
Indebtedness
exceeding
$500,000
(or
the
equivalent
in
any
other
currency)):
(i)
any Financial Indebtedness of a Relevant Person is not paid when due; or
(ii)
any Financial Indebtedness of
a Relevant Person
becomes due and payable
or capable of
being declared due and payable prior to
its stated maturity date as a consequence of
any
event of default; or
(iii)
a
lease,
hire
purchase
agreement
or
charter
creating
any
Financial
Indebtedness
of
a
Relevant
Person
is
terminated
by
the
lessor
or
owner
or
becomes
capable
of
being
terminated as a consequence of any termination event; or
(iv)
any overdraft,
loan, note issuance,
acceptance credit, letter
of credit, guarantee,
foreign
exchange or other facility, or any swap or
other derivative contract or transaction,
relating
to
any
Financial
Indebtedness
of
a
Relevant
Person
ceases
to
be
available
or
becomes
capable of being terminated as
a result of any event
of default, or cash cover
is required,
or becomes capable of being required, in respect of such a facility as a result of any event
of default; or
(v)
any Security
Interest
securing any
Financial Indebtedness
of a
Relevant Person
becomes
enforceable; or
(g)
any of the following occurs in relation to a Relevant Person:
(i)
a Relevant Person becomes, in
the opinion of
the Majority Lenders,
unable to pay its
debts
as they fall due; or
(ii)
any assets of a Relevant
Person are subject to
any form of execution,
attachment, arrest,
sequestration or
distress in
respect of
a sum
of,
or sums
exceeding, in
aggregate,
in the
case of all
Relevant Persons (taken as a whole)
$10,000,000 (or the
equivalent in any other
currency) at
any relevant
time
Provided that
in the case
of each
Borrower,
individually,
any
sum
of,
or
sums
exceeding,
in
aggregate
$500,000
(or
the
equivalent
in
any
other
currency);
(iii)
any administrative or other receiver is appointed over any asset of a Relevant Person;
or
(iv)
an administrator is appointed (whether
by the court or
otherwise) in respect
of a Relevant
Person; or
(v)
any formal declaration of
bankruptcy or any
formal statement to the
effect that a
Relevant
Person is
insolvent or
likely to
become insolvent
is made by
a Relevant
Person or
by the
directors
of a
Relevant
Person
or,
in any
proceedings, by
a lawyer
acting for
a Relevant
Person; or
(vi)
a provisional liquidator is appointed in respect of a Relevant Person, a winding up order is
made in relation
to a Relevant
Person or
a winding up resolution
is passed by a
Relevant
Person; or
(vii)
a resolution is passed, an administration notice is given or filed, an application or petition
to a court is made or presented
or any other step is
taken by (aa) a
Relevant Person, (bb)
the members
or directors
of a
Relevant Person,
(cc) a
holder of
Security Interests
which
together
relate
to
all
or
substantially
all
of
the
assets
of
a
Relevant
Person,
or
(dd)
a
government
minister
or
public or
regulatory
authority
of
a Pertinent
Jurisdiction for
or
with a view to the winding up of that or another Relevant Person or the appointment of a
provisional
liquidator or
administrator
in respect
of that
or another
Relevant
Person,
or
that or another
Relevant Person
ceasing or suspending business
operations or
payments
to
creditors,
save
that
this paragraph
does
not
apply to
a
fully
solvent
winding up
of
a
Relevant Person
other than a
Borrower or
the Corporate
Guarantor which
is, or is
to be,
effected
for the
purposes of
an amalgamation
or reconstruction
previously approved
by
the Majority Lenders and effected
not later than three months
after the commencement
of the winding up; or
(viii)
an administration
notice is given
or filed, an
application or petition
to a court
is made or
presented or any
other step is
taken by a
creditor of a
Relevant Person (other than
a holder
of
Security
Interests
which
together
relate
to
all
or
substantially
all
of
the
assets
of
a
Relevant
Person)
for
the
winding
up
of
a
Relevant
Person
or
the
appointment
of
a
provisional
liquidator
or
administrator
in
respect
of
a
Relevant
Person
in
any
Pertinent
Jurisdiction, unless
the proposed
winding up,
appointment of
a provisional
liquidator or
administration is being
contested in good
faith, on substantial grounds
and not
with a
view
to some
other insolvency
law procedure
being implemented
instead and
either (aa)
the
application
or
petition
is
dismissed
or
withdrawn
within
30
days
of
being
made
or
presented, or (bb) within 30
days of the administration
notice being given or filed, or the
other relevant steps being taken, other action is taken which will ensure that there
will be
no
administration
and
(in both
cases
(aa) or
(bb))
the
Relevant
Person
will
continue
to
carry on business in the ordinary way and without being
the subject of any actual, interim
or pending insolvency law procedure; or
(ix)
a
Relevant
Person
or
its
directors
take
any
steps
(whether
by
making
or
presenting
an
application or
petition to
a court,
or submitting
or presenting
a document
setting out
a
proposal or proposed terms, or otherwise) with
a view to obtaining, in relation
to that or
another Relevant
Person,
any
form of
moratorium,
suspension or
deferral
of payments,
reorganisation of debt
(or certain
debt) or
arrangement with all
or a
substantial proportion
(by
number
or
value)
of
creditors
or
of
any
class
of
them
or
any
such
moratorium,
suspension or
deferral
of payments,
reorganisation
or arrangement
is effected
by court
order,
by the filing of documents with a court, by means of a contract or in any other way
at all; or
(x)
any
meeting
of
the
members
or
directors,
or
of
any
committee
of
the
board
or
senior
management, of a Relevant Person is held or summoned for the purpose of considering a
resolution or
proposal to
authorise or
take
any action
of a
type described
in paragraphs
(iv)
to
(ix)
or a
step preparatory
to such
action, or
(with or
without such
a meeting)
the
members,
directors
or
such
a
committee
resolve
or
agree
that
such
an
action
or
step
should be taken or
should be taken if
certain conditions materialise or fail
to materialise;
or
(xi)
in
a
country
other
than
England,
any
event
occurs,
any
proceedings
are
opened
or
commenced or any step is taken which, in the
opinion of the Majority
Lenders is similar to
any of the foregoing; or
(h)
any Borrower
ceases or
suspends carrying
on its
business or
a part
of its
business which,
in the
opinion of the Majority Lenders, is material in the context of this Agreement; or
(i)
it becomes unlawful in any Pertinent Jurisdiction or impossible:
(i)
for any Borrower,
the Corporate Guarantor or any Security Party to discharge
any liability
under
a
Finance
Document
or
to
comply
with
any
other
obligation
which
the
Majority
Lenders consider material under a Finance Document;
(ii)
for the
Agent, the Security
Trustee,
the Lenders or
the Swap Bank
to exercise
or enforce
any right under, or to
enforce any Security Interest created by,
a Finance Document; or
(j)
any official consent necessary to enable any Borrower to own, operate or charter the Ship owned
by
it
or
to
enable
any
Borrower
or
any
Security Party
to
comply
with
any
provision
which
the
Majority Lenders consider
material of
a Finance Document
is not granted,
expires without
being
renewed,
is
revoked
or
becomes
liable to
revocation
or
any
condition
of
such a
consent
is
not
fulfilled; or
(k)
it
appears
to
the
Majority Lenders
that,
without
their
prior
consent,
a
change
has
occurred
or
probably has occurred after the date of this Agreement in the ownership of any of the shares in a
Borrower or the Approved Manager; or
(l)
any provision which the
Majority Lenders consider
material of a Finance
Document proves to have
been or becomes invalid
or unenforceable, or a
Security Interest created
by a Finance Document
proves
to
have
been or
becomes invalid
or unenforceable
or such
a Security
Interest
proves
to
have ranked
after,
or loses its priority to,
another Security Interest or
any other third party
claim
or interest; or
(m)
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
(n)
without the prior consent
of the Lenders, the
shares of the Corporate Guarantor cease
to be listed
on the New York Stock Exchange; or
(o)
an Event of Default (as defined in section 14 of the Master Agreement) occurs; or
(p)
the Master
Agreement
is terminated,
cancelled, suspended,
rescinded or
revoked
or otherwise
ceases to remain in full force and effect for any reason except with the consent of the Swap Bank;
or
(q)
any other event occurs or any other circumstances arise or develop including, without limitation:
(i)
a change in the financial position, state of affairs or prospects of any Relevant Person; or
(ii)
any
accident
or
other
event
involving
any
Ship
or
another
vessel
owned,
chartered
or
operated by a Relevant Person,
in the light
of which the
Majority Lenders consider
that there is a
significant risk that
any Borrower
or Corporate Guarantor is,
or will later
become, unable
to discharge its
liabilities under
the Finance
Documents as they fall due.
19.2
Actions following an Event of Default
On, or at any time after, the occurrence of an Event
of Default:
(a)
the Agent may,
and if so instructed by the Majority Lenders, the Agent shall:
(i)
serve on
the Borrowers
a notice
stating
that all
or part
of the
Commitments and
of the
other obligations
of each
Lender to
the Borrowers
under this
Agreement
are cancelled;
and/or
(ii)
serve on the Borrowers a notice stating
that all or part of the Loan together with accrued
interest
and all
other amounts
accrued or
owing under
this Agreement
are immediately
due and payable or are due and payable on demand; and/or
(iii)
take any other action which, as a result of the Event of Default or any notice
served under
paragraph
(i)
or
(ii)
, the Agent and/or
the Lenders are
entitled to take
under any Finance
Document or any applicable law; and/or
(b)
the Security
Trustee
may,
and if
so instructed
by the Agent,
acting with the
authorisation of
the
Majority
Lenders,
the
Security
Trustee
shall
take
any
action
which,
as
a
result
of
the
Event
of
Default or any
notice served under paragraph
(a)
(i)
or
(ii)
, the Security Trustee,
the Agent and/or
the
Lenders
and/or
the
Swap
Bank
are
entitled
to
take
under
any
Finance
Document
or
any
applicable law.
19.3
Termination of Commitments
On
the
service
of
a
notice
under
Clause
19.2(a)(i)
(
Actions
following
an
Event
of
Default
),
the
Commitments and
all other
obligations
of each
Lender to
the Borrowers
under this
Agreement
shall be cancelled.
19.4
Acceleration of Loan
On the service of a notice
under Clause
19.2(a)(ii)
(
Actions
following an Event of Default
), all or, as
the case may be, the
part of the Loan
specified in the notice
together with accrued interest and all
other amounts accrued or owing from the Borrowers
or any Security Party under this Agreement
and every other
Finance Document shall
become immediately due
and payable or, as the
case may
be, payable on demand.
19.5
Multiple notices; action without notice
The Agent
may serve
notices under
Clauses
19.2(a)(i)
and
(ii) (
Actions following
an Event of
Default
)
simultaneously
or
on
different
dates
and
it
and/or
the
Security
Trustee
may
take
any
action
referred to
in Clause
19.1(q)
(
Actions following an Event
of Default
) if no such
notice is served or
simultaneously with or at any time after the service of both or either of such notices.
19.6
Notification of Creditor Parties and Security Parties
The Agent shall send to each Lender, the Swap Bank, the Security Trustee and each Security Party
a copy
or the
text of
any notice
which the
Agent serves
on the
Borrowers
under Clause
19.1(q)
(
Actions following an Event of Default
); but the notice shall become effective when it is served on
the Borrowers, and no failure or delay by the Agent to send a copy or the text of the
notice to any
other person
shall invalidate
the notice
or provide
any Borrower
or any
Security Party
with any
form of claim or defence.
19.7
Creditor Party's rights unimpaired
Nothing in
this Clause
shall be
taken to impair
or restrict
the exercise of
any right given
to individual
Lenders or
the Swap
Bank under a
Finance Document or
the general
law; and,
in particular,
this
Clause is without prejudice to Clause
3.1
(
Interest of Lenders and Swap Bank several
).
19.8
Exclusion of Creditor Party liability
No Creditor Party,
and no receiver or
manager appointed by
the Security Trustee,
shall have any
liability to a Borrower or a Security Party:
(a)
for any
loss caused by
an exercise
of rights
under,
or enforcement
of a Security
Interest
created
by,
a Finance
Document or
by any
failure
or delay
to exercise
such a
right or
to enforce
such a
Security Interest; or
(b)
as mortgagee
in possession or
otherwise, for
any income
or principal
amount which might
have
been
produced
by
or
realised
from
any
asset
comprised
in
such
a
Security
Interest
or
for
any
reduction (however caused) in the value of such an asset,
except that this does not exempt a Creditor Party or a receiver or manager from liability
for losses
shown to have been directly
and mainly caused
by the dishonesty or
the wilful misconduct
of such
Creditor Party's own officers and employees
or (as the case may be) such receiver's
or manager's
own partners or employees and any other member of the Group.
19.9
Relevant Persons
In
this
Clause
19
(
Events
of
Default
),
a
"
Relevant
Person
"
means
a
Borrower,
the
Corporate
Guarantor or a Security Party,
and any company which is a subsidiary of the Corporate Guarantor
or
a
Security
Party
and
any
other
member
of
the
Group
but
excluding
any
company
which
is
dormant and the value of whose gross assets is $50,000 or less.
19.10
Interpretation
In
Clause
19.1(f)
(
Events
of
Default
),
references
to
an
event
of
default
or
a
termination
event
include
any
event,
howsoever
described,
which
is
similar
to
an
event
of
default
in
a
facility
agreement
or
a
termination
event
in
a
finance
lease; and
in
Clause
19.1(g)
(
Events
of
Default
),
"
petition
" includes an application.
19.11
Position of Swap Bank
Neither the Agent
nor the Security
Trustee
shall be obliged,
in connection with
any action
taken
or proposed to
be taken
under or pursuant to
the foregoing provisions
of this Clause
19
, to have
any regard to the
requirements of the Swap Bank except
to the extent that the Swap
Bank is also
a Lender.
20
FEES AND EXPENSES
20.1
Fees
The Borrowers shall pay to the Agent:
(a)
on the
date of
this Agreement,
a non-refundable
arrangement fee
computed at
the rate
of 0.70
per
cent.
of
the
Total
Commitments
for
distribution
among
the
Lenders
pro
rata
to
their
Commitments.
(b)
a commitment fee
at a rate
equal to
35 per
cent. of the
Margin per annum
on the
undrawn amount
of the Total
Commitments from time to time. The accrued commitment fee is payable on the last
day of
each successive
period of three
Months which ends
during the Availability
Period, on
the
last
day
of
the
Availability
Period
and,
if
cancelled,
on
the
cancelled
amount
of
the
relevant
Lender's Commitment at the time the cancellation is effective.
20.2
Costs of negotiation, preparation etc.
The Borrowers
shall pay
to the Agent
on its
demand the amount
of all expenses
incurred by
the
Agent
or
the
Security
Trustee
in
connection
with
the
negotiation,
preparation,
execution
or
registration
of
any
Finance
Document
or
any
related
document
or
with
any
transaction
contemplated by a Finance Document or a related document.
20.3
Costs of variations, amendments, enforcement etc.
The Borrowers shall
pay to the
Agent, on the
Agent's demand, for
the account of
the Creditor Party
concerned, the amount of all expenses incurred by a Creditor Party in connection with:
(a)
any
amendment
or
supplement
to
a
Finance
Document
(required
for
the
continuation
of
the
availability of the Loan or
as contemplated under Clause
27.4
(
Changes to reference rates
)), or any
proposal for such an amendment to be made;
(b)
any consent or waiver
by the Lenders, the Swap
Bank, the Majority Lenders or the Creditor
Party
concerned under or in connection with a Finance Document, or any request for such a consent or
waiver;
(c)
the valuation
of any
security provided
or offered
under Clause
15
(
Security Cover
) or
any other
matter relating to such security; or
(d)
where
the
Security
Trustee,
in
its
absolute
opinion,
considers
that
there
has
been
a
material
change to the
insurances in respect
of a Ship,
the review of
the insurances of
that Ship pursuant
to Clause
13.18
(
Review of insurance requirements
); and
(e)
any step
taken by
the Creditor
party concerned or
the Swap
Bank with a
view to
the protection,
exercise or enforcement of any right
or Security Interest created
by a Finance
Document or for
any
similar purpose.
There shall be
recoverable under paragraph
(d)
the full amount of
all legal expenses,
whether or
not such as would be allowed under rules of court or any taxation
or other procedure carried out
under such rules.
20.4
Extraordinary management time
The Borrowers
shall pay
to the
Agent on
its demand compensation
in respect
of the
reasonable
and documented
amount of
time which
the management
of either
Servicing Bank
has spent
in
connection with a matter covered
by Clause
20.3
(
Costs of variations, amendments, enforcement
etc.
) and which exceeds
the amount of time
which would ordinarily be spent
in the performance
of the relevant Servicing Bank's routine functions.
Any such compensation shall be based on such
reasonable daily or hourly rates as
the Agent may notify to the
Borrowers and is in addition to any
fee paid or payable to the relevant Servicing Bank.
20.5
Documentary taxes
The Borrowers
shall promptly pay
any tax
payable on or
by reference
to any
Finance Document,
and shall,
on the
Agent's demand,
fully indemnify
each Creditor
Party against any
claims, expenses,
liabilities and losses resulting from any failure or delay by the Borrowers to pay such a tax.
20.6
Financial Services Authority fees
The
Borrowers
shall
pay
to
the
Agent,
on
the
Agent's
demand,
for
the
account
of
the
Lender
concerned the amounts
which the Agent
from time to
time notifies the Borrowers
that a Lender
has notified
the Agent
to be
necessary to
compensate it
for the cost
attributable to its
Contribution
resulting from the
imposition from time
to time under
or pursuant to
the Bank
of England
Act 1998
and/or by the
Bank of
England and/or
by the
Financial Services
Authority (or
other United
Kingdom
governmental
authorities
or
agencies)
of
a
requirement
to
pay
fees
to
the
Financial
Services
Authority calculated by reference to liabilities used to fund its Contribution.
20.7
Certification of amounts
A notice which is signed by two officers of
a Creditor Party,
which states that a specified amount,
or aggregate amount,
is due to that
Creditor Party under this
Clause
20
(
Fees and expenses
) and
which indicates
(without necessarily
specifying a
detailed breakdown)
the matters
in respect
of
which the amount, or aggregate amount, is due shall be prima facie evidence that the amount,
or
aggregate amount, is due.
21
INDEMNITIES
21.1
Indemnities regarding borrowing and repayment of Loan
The Borrowers
shall fully
indemnify the
Agent and
each Lender
on the
Agent's demand
and the
Security Trustee
on its
demand in respect
of all
claims, expenses,
liabilities and losses
which are
made or
brought against or
incurred by
that Creditor
Party, or which
that Creditor
Party reasonably
and with due diligence estimates that it will incur, as a result of or in connection with:
(a)
the Loan not being borrowed on the date
specified in the Drawdown Notice for any
reason other
than a default by the Lender claiming the indemnity;
(b)
the receipt or recovery of all or
any part of the Loan
or an overdue sum otherwise than
on the last
day of an Interest Period or other relevant period;
(c)
any failure (for
whatever reason) by the Borrowers
to make payment of
any amount due under a
Finance Document on
the due date or, if so
payable, on demand (after giving
credit for any default
interest paid by the Borrowers
on the amount
concerned under Clause
5.3
(
Default Interest
)) ; and
(d)
the occurrence
of an
Event of
Default or
a Potential
Event
of Default
and/or the
acceleration of
repayment of the Loan under Clause
19
(
Events of Default
),
and in respect of
any tax (other than tax
on its overall net income
or a FATCA Deduction) for which
a
Creditor
Party
is liable
in connection
with any
amount paid
or
payable
to
that
Creditor
Party
(whether for its own account or otherwise) under any Finance Document.
21.2
Miscellaneous indemnities
The Borrowers
shall fully indemnify each
Creditor Party
severally on
their respective demands in
respect
of
all
claims,
expenses,
liabilities
and
losses which
may
be made
or
brought
against
or
incurred by a Creditor Party,
in any country, as a result of or in connection with:
(a)
any action
taken,
or omitted
or neglected
to be
taken,
under or
in connection
with any
Finance
Document
by
the
Agent,
the
Security
Trustee
or
any
other
Creditor
Party
or
by
any
receiver
appointed under a Finance Document; or
(b)
any civil penalty or fine against, and
all reasonable costs and expenses (including reasonable fees
of counsel and
disbursements) incurred in
connection with or the
defence thereof
by,
the Agent
or
any
other
Creditor
Party
as
a
result
of
conduct
of
any
Borrower
or
any
of
their
partners,
directors, officers, employees, agents or advisors, that violates any Sanctions;
or
(c)
any other Pertinent Matter,
other
than
claims,
expenses,
liabilities
and
losses
which
are
shown
to
have
been
directly
and
mainly caused by the dishonesty or wilful misconduct of the officers or employees of the
Creditor
Party concerned.
Without prejudice to its
generality, this Clause
21.2 (
Miscellaneous indemnities
) covers any claims,
expenses, liabilities
and losses which
arise, or are
asserted, under or
in connection with
any law
relating to safety at sea, the ISM Code, the ISPS Code or any Environmental Law or any Sanctions.
21.3
Environmental Indemnity
Without
prejudice
to
its
generality,
Clause
21.2
(
Miscellaneous
indemnities
)
covers
any
Environmental
Claim
and
any
other
claims,
demands,
proceedings,
liabilities,
taxes,
losses
or
expenses of every kind
which arise, or are asserted,
under or in connection with any
law relating
to safety at sea, pollution or the protection of the environment, the ISM Code or the ISPS Code.
21.4
Currency indemnity
If
any
sum
due
from
any
Borrower
or
any
Security
Party
to
a
Creditor
Party
under
a
Finance
Document or
under any
order or
judgment relating
to a
Finance Document
has to
be converted
from
the
currency
in
which
the
Finance
Document
provided
for
the
sum
to
be
paid
(the
"Contractual Currency") into another currency (the "Payment Currency") for the purpose of:
(a)
making or
lodging any
claim or
proof against
any Borrower
or any
Security Party,
whether in
its
liquidation, any arrangement involving it or otherwise; or
(b)
obtaining an order or judgment from any court or other tribunal; or
(c)
enforcing any such order or judgment,
the
Borrowers
shall
indemnify
the
Creditor
Party
concerned
against
the
loss
arising
when
the
amount of the payment actually received by
that Creditor Party is converted
at the available rate
of exchange into the Contractual Currency.
In this Clause
21.4
(
Currency indemnity
), the "
available rate of exchange
" means the rate at
which
the Creditor Party concerned is able
at the opening of
business (London time)
on the Business Day
after
it
receives
the
sum
concerned
to
purchase
the
Contractual
Currency
with
the
Payment
Currency.
This Clause
21.4
(
Currency indemnity
) creates a separate liability
of the Borrowers which is
distinct
from
their other
liabilities under
the Finance
Documents and
which shall
not be
merged
in any
judgment or order relating to those other liabilities.
21.5
Application to Master Agreement
For the
avoidance of
doubt, Clause
21.4
(
Currency indemnity
) does
not apply
in respect
of sums
due from the Borrowers
to the Swap Bank under or
in connection with the Master Agreement
as
to which
sums the
provisions of
section 8 (
Contractual Currency
) of
the Master
Agreement shall
apply.
21.6
Mandatory Cost
Each Borrower
shall, on
demand by
the Agent,
pay to
the Agent
for the
account of
the relevant
Lender,
such
amount
which
any
Lender
certifies
in
a
notice
to
the
Agent
to
be
its
good
faith
determination of the amount necessary to compensate it for complying with:
(a)
in the case
of a Lender
lending from a
Facility Office in
a Participating Member
State, the minimum
reserve requirements (or other
requirements having the same
or similar purpose)
of the European
Central Bank (or any other
authority or agency which
replaces all or any of
its functions) in respect
of loans made from that Facility Office; and
(b)
in the case of
any Lender lending from
a Facility Office in
the United Kingdom, any
reserve asset,
special
deposit
or
liquidity
requirements
(or
other
requirements
having
the
same
or
similar
purpose) of the
Bank of England
(or any
other governmental
authority or agency)
and/or paying
any
fees
to
the Financial
Conduct Authority
and/or the
Prudential
Regulation
Authority (or
any
other governmental authority or agency which replaces all or any of their functions),
which, in each case, is referable to that Lender's participation in the Loan.
21.7
Certification of amounts
A notice which is signed by two officers of
a Creditor Party,
which states that a specified amount,
or aggregate
amount, is due to
that Creditor Party
under this Clause
21
(
Indemnities
) and which
indicates
(without necessarily
specifying a
detailed breakdown)
the matters
in respect
of which
the
amount,
or
aggregate
amount,
is
due
shall
be
prima
facie
evidence
that
the
amount,
or
aggregate amount, is due.
21.8
Sums deemed due to a Lender
For the purposes of this Clause
21
(
Indemnities
), a sum payable by the Borrowers
to the Agent or
the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
22
NO SET-OFF OR TAX
DEDUCTION
22.1
No deductions
All amounts due from the Borrowers under a Finance Document shall be paid:
(a)
without any form of set off, cross-claim or condition; and
(b)
free and clear of any tax deduction except a tax deduction which a Borrower is required by law to
make.
22.2
Grossing-up for taxes
If a Borrower is required by law to make a tax deduction from any payment:
(a)
that Borrower shall notify the Agent as soon as it becomes aware of the requirement;
(b)
that Borrower
shall pay
the tax
deducted to
the appropriate taxation
authority promptly,
and in
any event before any fine or penalty arises; and
(c)
the amount due in respect of the
payment shall be increased by the
amount necessary to ensure
that each Creditor Party receives and retains (free from any
liability relating to the tax deduction)
a net amount which, after the tax deduction, is equal to the full
amount which it would otherwise
have received.
22.3
Evidence of payment of taxes
Within one
month after
making any
tax
deduction, the
Borrower concerned
shall deliver
to the
Agent
documentary
evidence
satisfactory
to
the
Agent
that
the
tax
had
been
paid
to
the
appropriate taxation authority.
22.4
Exclusion of tax on overall net income
In
this
Clause
22
(
No
set-off
or
Tax
Deduction
)
"
tax
deduction
"
means
any
deduction
or
withholding for or on account of any present or future tax except
tax on a Creditor Party's overall
net income, other than a FATCA
Deduction.
22.5
Application to Master Agreement
For the
avoidance of doubt,
Clause
22
(
No set-off
or Tax
Deduction
) does not
apply in respect
of
sums
due
from
the
Borrowers
to
the
Swap
Bank
under
or
in
connection
with
the
Master
Agreement as to
which sums the provisions of
section 2(d) (
Deduction or Withholding for Tax
) of
the Master Agreement shall apply.
22.6
FATCA
Information
(a)
Subject to paragraph
(c)
below, each Party shall, within ten Business Days of a reasonable request
by another Party:
(i)
confirm to that other Party whether it is:
(A)
a FATCA
Exempt Party; or
(B)
not a FATCA
Exempt Party; and
(ii)
supply to
that other
Party such
forms, documentation
and other
information relating
to
its status
under FATCA
as that
other Party
reasonably requests
for the
purposes of
that
other Party's compliance with FATCA;
and
(iii)
supply to
that other
Party such
forms, documentation
and other
information relating
to
its status
as that
other Party
reasonably requests
for the
purposes of
that other
Party's
compliance with any other law, regulation or exchange
of information regime.
(b)
If a Party confirms to another Party pursuant to sub-paragraph
(i)
of paragraph
(a)
above that it is
a FATCA
Exempt
Party
and it
subsequently becomes
aware
that it
is not,
or has
ceased to
be a
FATCA
Exempt Party,
that Party shall notify that other Party reasonably promptly.
(c)
Paragraph
(a)
above shall not
oblige any
Creditor Party
to do
anything and sub-paragraph
(iii)
of
paragraph
(a)
above shall
not oblige
any other
Party to
do anything
which would
or might
in its
reasonable opinion constitute a breach of:
(i)
any law or regulation;
(ii)
any fiduciary duty; or
(iii)
any duty of confidentiality.
(d)
If
a
Party
fails
to
confirm
whether
or
not
it
is
a
FATCA
Exempt
Party
or
to
supply
forms,
documentation
or
other
information
requested
in
accordance
with
sub-paragraphs
(i)
or
(ii)
of
paragraph
(a)
above (including, for
the avoidance
of doubt,
where paragraph
(c)
above applies),
then such Party shall be treated for the purposes of the
Finance Documents (and payments under
them) as
if it
is not
a FATCA
Exempt Party
until such
time as
the Party
in question
provides the
requested confirmation, forms, documentation or other information.
(e)
If a Borrower is
a US Tax Obligor, or the Agent
reasonably believes that
its obligations under
FATCA
or any other applicable law
or regulation require it, each
Lender shall, within
ten Business Days of:
(i)
where a Borrower is a US Tax Obligor and the relevant Lender is a Lender as
of the date of
this Agreement, the date of this Agreement;
(ii)
where a Borrower is a US Tax
Obligor on a date where a transfer
is effected under Clause
26.2
(
Transfer
by a
Lender
) and
the relevant
Lender is
a Transferee
Lender,
the relevant
date on which such transfer is effected under Clause
26.2
(
Transfer by a Lender
); or
(iii)
where a Borrower is not a US Tax Obligor,
the date of a request from the Agent,
supply to the Agent:
(iv)
a withholding certificate on Form W-8, Form W-9 or any other relevant
form; or
(v)
any withholding statement or other
document, authorisation or waiver as the Agent may
require to certify or establish
the status of such Lender under
FATCA
or that other law or
regulation.
(f)
The
Agent
shall
provide
any
withholding
certificate,
withholding
statement,
document,
authorisation
or
waiver
it
receives
from
a
Lender
pursuant
to
paragraph
(e)
above
to
the
Borrowers.
(g)
If any withholding
certificate, withholding statement, document,
authorisation or
waiver provided
to the Agent by
a Lender pursuant to paragraph
(e)
above is or becomes materially
inaccurate or
incomplete, that
Lender shall
promptly update it
and provide
such updated
withholding certificate,
withholding statement,
document, authorisation or
waiver to
the Agent
unless it is
unlawful for
the Lender
to do
so (in
which case
the Lender
shall promptly
notify the
Agent).
The Agent
shall
provide
any
such
updated
withholding
certificate,
withholding
statement,
document,
authorisation or waiver to the Borrowers.
(h)
The
Agent
may
rely
on
any
withholding
certificate,
withholding
statement,
document,
authorisation or waiver
it receives from
a Lender pursuant to
paragraph
(e)
or
(g)
above without
further verification.
The Agent shall not be liable
for any action taken by it under or in connection
with paragraphs
(e)
,
(f)
or
(g)
above.
22.7
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 each
Borrower and
the Agent and the
Agent
shall notify the other Creditor Parties.
23
ILLEGALITY AND SANCTIONS AFFECTING A LENDER
23.1
Illegality
This Clause
23
(
Illegality and Sanctions affecting a Lender
) applies if:
(a)
a Lender (the "
Notifying Lender
") notifies the Agent that it has become, or will with effect from a
specified date, become:
(i)
unlawful or prohibited
as a result
of the introduction of
a new law,
an amendment to an
existing law or a change in the manner in which an existing law is or will be
interpreted or
applied; or
(ii)
contrary to, or inconsistent with, any regulation or Sanctions,
for the Notifying Lender
to maintain or give
effect to
any of its
obligations under this Agreement
in the
manner contemplated
by this
Agreement or
to determine
or charge
interest
rates
based
upon Term SOFR; and
(b)
without
prejudice
to
any
of
the
express
obligations
of
the
Security
Parties
under
the
Finance
Documents, in the opinion of a Lender acting reasonably anything whatsoever is done or omitted
to be done
by a Security
Party which would
result in
that Lender
being in
breach of
or made
subject
to Sanctions, or at risk of being in breach of or made subject to Sanctions.
23.2
Notification of illegality
The Agent shall promptly
notify the Borrowers, the
Security Parties, the Security Trustee
and the
other
Lenders
of
the
notice
under
Clause
23.1
(
Illegality
)
which
the
Agent
receives
from
the
Notifying Lender.
23.3
Prepayment; termination of Commitment
On the Agent
notifying the Borrowers
under Clause
23.2
(
Notification of illegality
), the
Notifying
Lender's
Commitment
shall
terminate;
and
thereupon
or,
if
later,
on
the
date
specified
in
the
Notifying Lender's
notice under
Clause
23.1
(
Illegality
)
as
the date
on
which
the notified
event
would
become
effective
the
Borrowers
shall
prepay
the
Notifying
Lender's
Contribution
in
accordance with Clause
8
(
Repayment and prepayment
).
23.4
Mitigation
If
circumstances
arise
which
would
result
in
a
notification
under
Clause
23.1
(
Illegality
)
then,
without
in
any
way
limiting the
rights
of
the
Notifying Lender
under
Clause
23.3
(
Prepayment;
termination of Commitment
), the Notifying Lender shall
use reasonable endeavours to transfer its
obligations,
liabilities
and
rights
under
this
Agreement
and
the
Finance
Documents
to
another
office or financial institution not affected
by the circumstances but the Notifying Lender shall not
be under any obligation to take any such action if,
in its opinion, to do would or might:
(a)
have an adverse effect on its business, operations or financial condition; or
(b)
involve
it
in
any
activity
which
is
unlawful
or
prohibited
or
any
activity
that
is
contrary
to,
or
inconsistent with, any regulation; or
(c)
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
24
INCREASED COSTS
24.1
Increased costs
This Clause
24
(
Increased costs
) applies if a
Lender (the "
Notifying Lender
") notifies the
Agent that
the Notifying Lender considers that as a result of:
(a)
the introduction or alteration
after the date
of this Agreement of
a law or an
alteration after the
date of
this Agreement
in the manner
in which
a law
is interpreted
or applied
(disregarding any
effect which relates to the application to payments under this Agreement of a tax on the Lender's
overall net income); or
(b)
complying with
any regulation (including
any which
relates to capital
adequacy or
liquidity controls
or
which
affects
the
manner
in
which
the
Notifying
Lender
allocates
capital
resources
to
its
obligations
under
this
Agreement)
which
is
introduced,
or
altered,
or
the
interpretation
or
application of which is altered, after the date of this Agreement; or
(c)
complying with any regulation (including the "International Convergence of Capital Measurement
and
Capital
Standards,
a
Revised
Framework"
published
by
the
Basel
Committee
on
Banking
Supervision
in
June
2004,
in
the
form
existing
on
the
date
of
this
Agreement
and
any
other
regulation which
relates to
capital adequacy
or liquidity
controls or
which affects
the manner
in
which
the
Notifying Lender
allocates
capital
resources
to
its obligations
under this
Agreement)
which is introduced,
or altered, or
the interpretation
or application of
which is altered,
after the
date of this Agreement; or
(d)
the introduction, implementation, application, administration or compliance with Basel III or CRD
IV, or any law or regulation which implements or applies Basel III or
CRD IV (regardless of the date
on
which it
is enacted,
adopted
or
issued and
regardless
of whether
any
such implementation,
application or compliance is by a government, regulator,
the Creditor Party or any of its affiliates)
after the date of this Agreement,
the Notifying Lender (or a parent company of it) has incurred or will incur an "
increased
cost
".
24.2
Meaning of "increased costs"
In this Clause
24
(
Increased costs
), "
increased costs
" means, in relation to a Notifying Lender:
(a)
an additional or increased cost incurred
as a result of, or in connection with, the
Notifying
Lender having entered
into, or being a
party to, this Agreement
or a Transfer
Certificate,
of funding
or maintaining
its Commitment
or Contribution
or performing
its obligations
under this Agreement, or of having outstanding all
or any part of its Contribution or
other
unpaid sums;
(b)
a reduction in the amount of any
payment to the Notifying Lender under this Agreement
or in the effective
return which such a payment
represents to the Notifying Lender or on
its capital;
(c)
an
additional or
increased cost
of
funding all
or maintaining
all
or
any
of
the advances
comprised
in
a
class
of
advances
formed
by
or
including
the
Notifying
Lender's
Contribution or (as
the case may
require) the
proportion of that
cost attributable
to the
Contribution; or
(d)
a liability to
make a payment, or
a return foregone, which
is calculated by
reference to any
amounts received or receivable by the Notifying Lender under this Agreement,
but not
an item
attributable to
a change
in the
rate of tax
on the
overall net income
of the
Notifying
Lender (or a parent company of it)
or an item compensated for by any payment made pursuant
to
Clause
21.6
(
Mandatory
cost
)
or
an
item
covered
by
the
indemnity
for
tax
in
Clause
21.1
(
Indemnities
regarding
borrowing
and
repayment
of
Loan
)
or
by
Clause
22
(
No
set-off
or
Tax
Deduction
) or a FATCA
Deduction.
For the
purposes of
this Clause
24.2
(
Meaning of
"increased costs"
) the
Notifying Lender may
in
good faith allocate or spread costs and/or losses among its assets and liabilities
(or any class of its
assets and liabilities) on such basis as it considers appropriate.
24.3
Notification to Borrowers of claim for increased costs
The Agent
shall promptly
notify the
Borrowers
and the
Security Parties
of the
notice which
the
Agent received from the Notifying Lender under Clause
24.1
(
Increased costs
).
24.4
Payment of increased costs
The Borrowers
shall pay
to the
Agent, on
the Agent's
demand, for
the account
of the
Notifying
Lender the amounts which the Agent from
time to time notifies the Borrowers
that the Notifying
Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
24.5
Notice of prepayment
If the Borrowers are not willing to continue to compensate the Notifying Lender for the increased
cost under
Clause
24.4
(
Payment of
increased costs
), the
Borrowers may
give the
Agent not
less
than 14 days' notice of its intention to prepay the
Notifying Lender's Contribution at
the end of an
Interest Period.
24.6
Prepayment; termination of Commitment
A notice under Clause
24.5
(
Notice of prepayment
) shall be irrevocable;
the Agent shall promptly
notify the Notifying Lender of the Borrowers' notice of intended prepayment; and:
(a)
on the date on which the Agent serves that notice, the Commitment of the Notifying Lender shall
be cancelled; and
(b)
on the date specified in its notice of intended prepayment, the Borrowers shall prepay (subject to
any Break Costs, without premium
or penalty) the Notifying Lender's Contribution, together with
accrued interest thereon at the applicable rate plus the Margin and the Mandatory Cost (if any).
24.7
Application of prepayment
Clause
8
(
Repayment and Prepayment
) shall apply in relation to the prepayment.
25
SET OFF
25.1
Application of credit balances
Each Creditor Party may without prior notice:
(a)
apply any balance (whether
or not then due)
which at any time stands
to the credit of any
account
in
the
name
of
a
Borrower
at
any
office
in
any
country
of
that
Creditor
Party
in
or
towards
satisfaction
of
any
sum
then
due
from
that
Borrower
to
that
Creditor
Party
under
any
of
the
Finance Documents; and
(b)
for that purpose:
(i)
break, or alter the maturity of, all or any part of a deposit of that Borrower;
(ii)
convert or translate all or any part of a deposit or other credit balance into Dollars; and
(iii)
enter into any other
transaction or make any
entry with regard to
the credit balance
which
the Creditor Party concerned considers appropriate.
25.2
Existing rights unaffected
No Creditor
Party shall
be obliged
to exercise
any of
its rights
under Clause
25.1
(
Application of
credit balances
); and those rights shall be without prejudice
and in addition to any right of set off,
combination of accounts, charge,
lien or other
right or remedy to
which a Creditor
Party is entitled
(whether under the general law or any document).
25.3
Sums deemed due to a Lender
For the purposes
of this Clause
25
(
Set-off
), a sum
payable by
the Borrowers
to the Agent
or the
Security Trustee
for distribution to,
or for the
account of,
a Lender shall be treated
as a sum due
to that
Lender; and
each Lender's
proportion of
a sum
so payable
for distribution
to,
or for
the
account of, the Lenders shall be treated as a sum due to such Lender.
25.4
No Security Interest
This Clause
25
(
Set-off
) gives the Creditor
Parties a contractual
right of set-off
only, and
does not
create any equitable charge or other Security Interest over any credit balance of any Borrower.
26
TRANSFERS AND CHANGES IN FACILITY OFFICES
26.1
Transfer by Borrowers
No Borrower may,
without the consent of
the Agent, given
on the instructions of
all the Lenders
transfer any of its rights, liabilities or obligations under any Finance Document.
26.2
Transfer by
a Lender
Subject to Clause
26.4
(
Effective Date
of Transfer
Certificate
), a Lender (the "
Transferor
Lender
")
may at any time cause:
(a)
its rights in respect of all or part of its Contribution; or
(b)
its obligations in respect of all or part of its Commitment; or
(c)
a combination of (a) and (b),
to be (in
the case of
its rights) transferred to, or
(in the case
of its obligations)
assumed by, another
bank
or
financial
institution
or
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 (a "
Transferee
Lender
") by delivering
to the Agent
a completed certificate
in the form
set
out
in
Schedule
4
with
any
modifications
approved
or
required
by
the
Agent
(a
"
Transfer
Certificate
") executed by the Transferor
Lender and the Transferee Lender.
However any
rights and
obligations of
the Transferor
Lender in
its capacity
as Agent
or Security
Trustee will have to
be dealt with separately in accordance with the Agency and Trust Deed.
A transfer pursuant to this Clause
26.2
(
Transfer by a Lender
) shall be effected:
(i)
without the consent of the Borrowers:
(A)
following the occurrence of an Event of Default which is continuing; and/or
(B)
if such transfer is to another Lender or an affiliate of a Lender;
(ii)
in
all
other
circumstances
with
the
consent
of
the
Borrowers
(such
consent
not
to
be
unreasonably withheld or delayed) and the Borrowers will be deemed to have given their
consent
five
Business
Days
following
the
request
of
the
Transferor
Lender,
unless
the
consent is expressly refused by the Borrowers within that time.
26.3
Transfer Certificate,
delivery and notification
As
soon
as
reasonably
practicable
after
a
Transfer
Certificate
is
delivered
to
the
Agent,
it
shall
(unless it has reason to believe that the Transfer
Certificate may be defective):
(a)
sign the
Transfer
Certificate on
behalf of
itself,
the Borrowers,
the Security
Parties, the
Security
Trustee, each of the other Lenders and the Swap Bank;
(b)
on behalf of the
Transferee Lender,
send to each
Borrower and each Security
Party letters or faxes
notifying them of the Transfer Certificate and attaching a copy of it; and
(c)
send to the Transferee
Lender copies of the letters or faxes sent under paragraph
(b)
above,
but
the
Agent
shall
only
be
obliged
to
execute
a
Transfer
Certificate
delivered
to
it
by
the
Transferor
Lender and the Transferee 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 transfer to that Transferee
Lender.
26.4
Effective Date of Transfer
Certificate
A Transfer Certificate becomes effective on the date, if any,
specified in the Transfer Certificate as
its effective
date,
Provided that
it is signed by the
Agent under Clause
26.3
(
Transfer Certificate,
delivery and notification
) on or before that date.
26.5
No transfer without Transfer
Certificate
Except as provided in Clause
26.16
(
Security over Lenders'
rights
), no assignment
or transfer of any
right or obligation of
a Lender under any Finance Document
is binding on, or effective
in relation
to,
any
Borrower,
any
Security
Party,
the
Agent
or
the
Security
Trustee
unless
it
is
effected,
evidenced or perfected by a Transfer
Certificate.
26.6
Lender re-organisation; waiver of Transfer
Certificate
However,
if
a
Lender
enters
into
any
merger,
de-merger
or
other
reorganisation
as
a
result
of
which all its rights
or obligations vest in another person
(the "
successor
"), the Agent may, if it sees
fit, by notice to the successor and the Borrowers
and the Security Trustee waive
the need for the
execution
and
delivery
of
a
Transfer
Certificate;
and,
upon
service
of
the
Agent's
notice,
the
successor shall
become a
Lender with
the same
Commitment and
Contribution as
were held
by
the predecessor Lender.
26.7
Effect of Transfer
Certificate
A Transfer
Certificate takes effect in accordance with English law as follows:
(a)
to
the
extent
specified
in
the
Transfer
Certificate,
all
rights
and
interests
(present,
future
or
contingent)
which
the Transferor
Lender has
under or
by
virtue
of
the
Finance Documents
are
assigned to
the Transferee
Lender absolutely,
free of any
defects in
the Transferor
Lender's title
and of any rights or equities which any Borrower
or any Security Party had against the
Transferor
Lender;
(b)
the
Transferor
Lender's
Commitment
is
discharged
to
the
extent
specified
in
the
Transfer
Certificate;
(c)
the Transferee
Lender becomes a Lender with the Contribution previously held by
the Transferor
Lender and a Commitment of an amount specified in the Transfer Certificate;
(d)
the Transferee
Lender becomes bound by all
the provisions of the
Finance Documents which are
applicable to
the Lenders
generally,
including those
about pro
rata
sharing and
the exclusion
of
liability on the part of,
and the indemnification of, the Agent
and the Security Trustee
and, to the
extent that the Transferee
Lender becomes bound by those provisions
(other than those relating
to exclusion of liability), the Transferor
Lender ceases to be bound by them;
(e)
any part
of the
Loan which
the Transferee Lender advances
after the
Transfer Certificate's effective
date ranks
in point
of priority and
security in the
same way
as it would
have ranked
had it been
advanced by
the transferor,
assuming that
any defects
in the
transferor's
title and
any rights
or
equities of any Borrower or any Security Party against the Transferor
Lender had not existed;
(f)
the Transferee
Lender becomes entitled to all the rights under the
Finance Documents which are
applicable
to
the
Lenders
generally,
including but
not
limited
to
those
relating
to
the
Majority
Lenders and those under
Clause
7.2
(
Market disruption
) and Clause
20
(
Fees and expenses
), and to
the
extent
that
the
Transferee
Lender
becomes
entitled
to
such
rights,
the
Transferor
Lender
ceases to be entitled to them; and
(g)
in
respect
of
any
breach
of
a
warranty,
undertaking, condition
or
other
provision
of
a
Finance
Document
or
any
misrepresentation
made
in
or
in
connection
with
a
Finance
Document,
the
Transferee
Lender shall be entitled to recover damages by reference to the loss incurred by it as
a
result of the breach or misrepresentation, irrespective of whether the original Lender would have
incurred a loss of that kind or amount.
The rights
and equities of
any Borrower
or any
Security Party
referred
to above
include, but are
not limited to, any right of set off and any other kind of cross claim.
26.8
Maintenance of register of Lenders
During the
Security Period
the Agent
shall maintain
a register
in which
it shall
record the
name,
Commitment, Contribution and
administrative details
(including the Facility
Office) from
time to
time of
each Lender
holding a
Transfer Certificate and the
effective date (in
accordance with
Clause
26.4
(
Effective Date
of Transfer
Certificate
)) of the Transfer
Certificate; and the Agent
shall make
the register available for inspection by any Lender, the Security Trustee
and the Borrowers during
normal banking hours, subject to receiving at least three Business Days' prior notice.
26.9
Reliance on register of Lenders
The entries
on that
register shall,
in the absence
of manifest
error,
be conclusive
in determining
the identities
of the
Lenders and
the amounts
of their
Commitments and
Contributions and
the
effective dates of Transfer
Certificates and may be relied upon by the Agent and the other parties
to the Finance Documents for all purposes relating to the Finance Documents.
26.10
Authorisation of Agent to sign Transfer Certificates
Each
Borrower,
the Security
Trustee,
each Lender
and the
Swap
Bank irrevocably
authorise the
Agent to sign Transfer
Certificates on its behalf.
26.11
Registration fee
In respect
of any
Transfer
Certificate, the
Agent shall
be entitled
to recover
a registration
fee of
$5,000 from the Transferor
Lender or (at the Agent's option) the Transferee Lender.
26.12
Sub-participation; subrogation assignment
A Lender may
sub participate and/or
take out credit insurance
on all or
any part of
its rights and/or
obligations
under or
in connection
with the
Finance Documents
without the
consent of,
or any
notice to, any
Borrower, any Security Party, the Agent or
the Security
Trustee or any other
Creditor
Party; and the Lenders may
assign, in any manner and terms agreed by the Majority Lenders,
the
Agent
and
the
Security
Trustee,
all
or
any
part
of
those
rights
to
an
insurer
or
surety
who
has
become subrogated to them.
26.13
Disclosure of information
A Lender
may disclose to
a potential Transferee Lender,
sub participant,
insurance and
reinsurance
broker,
insurer
or
reinsurer
any
information
which
the
Lender
has
received
in
relation
to
any
Borrower,
any Security Party
or their affairs
under or in
connection with any
Finance Document,
unless the information is clearly of a confidential nature.
26.14
Change of Facility Office
A Lender may change its Facility Office by giving notice to the Agent and the change shall become
effective on the later of:
(a)
the date on which the Agent receives the notice; and
(b)
the date, if any, specified in the notice as the date on which the change will come into effect.
26.15
Notification
On receiving
such a
notice, the
Agent
shall notify
the Borrowers
and the
Security Trustee;
and,
until the Agent receives such
a notice, it shall
be entitled to assume
that a Lender
is acting through
the Facility Office of which the Agent last had notice.
26.16
Security over Lenders' rights
In addition to the other rights provided to Lenders under this Clause
26
(
Transfers and changes in
Facility Offices
), each Lender
may without consulting
with or obtaining
consent from any Borrower
or any Security Party,
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)
in the
case of
any Lender
which is
a fund,
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 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 Security Interest for the Lender as a
party to any of the Finance Documents; or
(ii)
require any
payments to
be made by
any Borrower
or any
Security Party 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.
27
VARIATIONS
AND WAIVERS
27.1
Variations, waivers etc.
by Majority Lenders
Subject to
Clause
27.2
(
Variations, waivers
etc. requiring
agreement of
all Lenders
), a
document
shall be
effective
to
vary,
waive,
suspend or
limit any
provision
of
a Finance
Document, or
any
Creditor Party's rights or remedies
under such a
provision or the general law, only if
the document
is signed, or specifically agreed
to by fax, by the Borrowers, by the Agent
on behalf of the
Majority
Lenders, by the Agent and the Security
Trustee in their own rights, and, if the document relates to
a Finance Document to which a Security Party is party, by that Security Party.
27.2
Variations, waivers etc. requiring agreement of all Lenders
However,
as
regards
the
following,
Clause
27.1
(
Variations,
waivers
etc.
by
Majority
Lenders
)
applies
as if
the words
"by
the Agent
on
behalf of
the Majority
Lenders" were
replaced
by the
words "by or on behalf of every Lender and the Swap Bank":
(a)
a reduction in the Margin;
(b)
a
postponement
to
the
date
for,
or
a
reduction
in
the
amount
of,
any
payment
of
principal,
interest, fees or other sum payable under this Agreement;
(c)
an increase in any Lender's Commitment;
(d)
a change to the definition of "
Majority Lenders
";
(e)
a change to Clause
3
(
Position of Lenders, the Swap Bank and Majority Lenders
), or this Clause
27
(
Variations and waivers
);
(f)
any release of, or material variation to, a Security Interest, guarantee, indemnity or subordination
arrangement set out in a Finance Document; and
(g)
any
other
change
or
matter
as
regards
which
this
Agreement
or
another
Finance
Document
expressly provides that each Lender's consent is required.
27.3
Exclusion of other or implied variations
Except for
a document which
satisfies the requirements
of Clauses
27.1
(
Variations, waivers
etc.
requiring
agreement
of
all
Lenders
),
27.2
(
Exclusion
of
other
or
implied
variations
)
and
27.4
(
Changes
to reference rates
), no document,
and no act,
course of conduct,
failure or neglect
to act,
delay or acquiescence on the part of the Creditor Parties
or any of them (or any person
acting on
behalf of any of them)
shall result in the Creditor Parties
or any of them (or
any person acting on
behalf
of
any
of
them)
being
taken
to
have
varied,
waived,
suspended
or
limited,
or
being
precluded (permanently or temporarily) from enforcing, relying on or exercising:
(a)
a provision of this Agreement or another Finance Document; or
(b)
an Event of Default; or
(c)
a
breach
by
a
Borrower
or
a
Security
Party
of
an
obligation
under
a
Finance
Document
or
the
general law; or
(d)
any right or remedy conferred by any Finance Document or by the general law,
and there
shall not
be implied
into
any
Finance Document
any
term or
condition requiring
any
such
provision
to
be
enforced,
or
such
right
or
remedy
to
be
exercised,
within
a
certain
or
reasonable time.
27.4
Changes to reference rates
(a)
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)
(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
,
or for
any other
vote
of Lenders
in relation
to,
paragraph
(a)
above within
five
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 or its participation in the Loan (as the case may be) shall not be included
for
the
purpose
of
calculating
the
Total
Commitments
or
the
amount
of
the
Loan
(as
applicable) when ascertaining whether any relevant percentage of Total
Commitments or
the aggregate
of participations in
the Loan (as
applicable) 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
27.4
(
Changes to reference rates
):
"
Published Rate
" means:
(a)
SOFR; or
(b)
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 and the Borrowers, materially changed;
(b)
(i)
(A)
the
administrator
of
that
Published
Rate
or
its
supervisor
publicly
announces that such administrator is insolvent; or
(B)
information
is
published
in
any
order,
decree,
notice,
petition
or
filing,
however described, of
or filed with
a court, tribunal,
exchange, regulatory
authority
or
similar
administrative,
regulatory
or
judicial
body
which
reasonably
confirms
that
the
administrator
of
that
Published
Rate
is
insolvent,
provided
that, in
each case,
at that
time, there
is no
successor administrator
to
continue to provide that Published Rate;
(ii)
the administrator of that Published Rate publicly announces that it has ceased or
will cease to provide that Published Rate permanently or indefinitely
and, at that
time, there
is no
successor administrator
to continue
to
provide
that Published
Rate;
(iii)
the supervisor
of the administrator
of that
Published Rate publicly
announces that
such Published Rate has been
or will be permanently or
indefinitely discontinued;
or
(iv)
the
administrator
of
that
Published
Rate
or
its
supervisor
announces
that
that
Published Rate may no longer be used; or
(c)
the administrator of that Published Rate (or the administrator of an interest rate which is
a constituent element of that Published
Rate) determines that that Published Rate should
be calculated in accordance with its reduced submissions
or other contingency or fallback
policies
or
arrangements
and
the
circumstance(s)
or
event(s)
leading
to
such
determination
are
not
(in
the
opinion
of
the
Majority
Lenders
and
the
Borrowers)
temporary; or
(d)
in the opinion
of the
Majority Lenders and
the Borrowers, 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.
"
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
Borrowers,
generally
accepted
in
the
international
or
any
relevant
domestic
syndicated
loan
markets
as
the
appropriate
successor or alternative to a Published Rate; or
(c)
in the
opinion of
the Majority
Lenders
and the
Borrowers,
an appropriate
successor or
alternative to a Published Rate.
28
NOTICES
28.1
General
Unless
otherwise
specifically
provided,
any
notice
under
or
in
connection
with
any
Finance
Document
shall
be
given
by
letter
or
fax
and
references
in
the
Finance
Documents
to
written
notices, notices in writing and
notices signed by particular
persons shall be construed accordingly.
28.2
Addresses for communications
A notice by letter or fax shall be sent:
(a)
to the Borrowers:
c/o Approved Manager
16 Pendelis Street
175 64 Palaio Faliro
Athens
Greece
E-mail: corpgov@dianashippingservices.com
and
finance@dianashippingservices.com
(b)
to a Lender:
at the address below its name in
Schedule 1
or (as the case
may require) in the
relevant Transfer
Certificate.
(c)
to the Swap Bank:
c/o
Nordea Danmark, Filial af Nordea Bank Abp, Finland
7288 Derivatives Services
PO box 850 DK-0900 Copenhagen K, Denmark
Telephone number: +45 55 47 51 71
E-mail: sls.norway@nordea.com
(d)
to the Lead Arranger,
Agent
or the Security Trustee:
Essendropsgate 7
0368 Oslo
Norway
Loan administration matters:
Fax No: +47 24013444
Attn: Structured Loan & Collateral Services NO
or to such other address as the relevant party may notify the Agent or,
if the relevant party is the
Agent or the
Security Trustee, the Borrowers, the
Lenders, the Swap Bank
and the Security
Parties.
28.3
Effective date of notices
Subject to Clauses
28.4
(
Service outside business hours
) and
28.5
(
Illegible notices
):
(a)
a notice
which is
delivered personally
or posted
shall be
deemed to
be served,
and shall
take effect,
at the time when it is delivered; and
(b)
a notice which is sent
by fax shall be
deemed to be served, and shall take
effect, 2 hours
after its
transmission is completed.
28.4
Service outside business hours
However,
if under Clause
28.3
(
Effective date of notices
) a notice would be deemed to be served:
(a)
on a day which is not a business day in the place of receipt; or
(b)
on such a business day, but after five p.m. local time,
the notice shall (subject to Clause
28.5
(
Illegible notices
)) be deemed to be served,
and shall take
effect, at 9 a.m. on the next day which is such a business day.
28.5
Illegible notices
Clauses
28.3 (
Effective date of notices
) and
28.4 (
Service outside business
hours
) do not
apply if the
recipient of a notice notifies the sender within one hour after the time at which the notice would
otherwise be deemed to be served
that the notice has been received in
a form which is illegible in
a material respect.
28.6
Valid notices
A notice
under or
in connection
with a
Finance Document
shall not
be invalid
by reason
that its
contents or
the manner of serving
it do not comply
with the requirements
of this Agreement or,
where appropriate, any other Finance Document under which it is served if:
(a)
the failure
to
serve it
in accordance
with the
requirements
of this
Agreement
or
other Finance
Document, as the case
may be, has not caused
any party to suffer any significant loss
or prejudice;
or
(b)
in the case
of incorrect
and/or incomplete contents,
it should have
been reasonably clear
to the
party on which the notice was served what the correct or missing particulars should have been.
28.7
Electronic communication
Any
communication
to
be
made
between
the
Agent
and
a
Lender
or
Swap
Bank
under
or
in
connection
with
the
Finance
Documents
may
be
made
by
electronic
mail
or
other
electronic
means, if the Agent and the relevant Creditor Party:
(a)
agree
that,
unless
and
until
notified
to
the
contrary,
this
is
to
be
an
accepted
form
of
communication;
(b)
notify each other in writing of their electronic mail address and/or any other information
required to enable the sending and receipt of information by that means; and
(c)
notify
each
other
of
any
change
to
their
respective
addresses
or
any
other
such
information supplied to them.
Any electronic
communication made
between the
Agent and
a Lender
or the
Swap Bank
will be
effective
only
when
actually
received
in
readable
form
and,
in
the
case
of
any
electronic
communication made by a Creditor Party to
the Agent, only if it is addressed in
such a manner as
the Agent shall specify for this purpose.
28.8
English language
Any notice under or in connection with a Finance Document shall be in English.
28.9
Meaning of "notice"
In
this
Clause
28
(
Notices
),
"
notice
"
includes
any
demand,
consent,
authorisation,
approval,
instruction, waiver or other communication.
29
JOINT AND SEVERAL LIABILITY
29.1
General
All liabilities and
obligations of the
Borrowers under
this Agreement shall,
whether expressed to
be so
or not,
be several
and, if
and to
the extent
consistent with
Clause
29.2
(
No impairment
of
Borrower's obligations
), joint.
29.2
No impairment of Borrower's obligations
The liabilities and obligations of a Borrower shall not be impaired by:
(a)
this
Agreement
being
or
later
becoming
void,
unenforceable
or
illegal
as
regards
any
other
Borrower;
(b)
any Lender,
the Swap Bank or
the Security Trustee
entering into any
rescheduling, refinancing or
other arrangement of any kind with any other Borrower;
(c)
any Lender,
the Swap
Bank or the
Security Trustee
releasing any
other Borrower
or any
Security
Interest created by a Finance Document; or
(d)
any combination of the foregoing.
29.3
Principal debtors
Each
Borrower
declares
that
it
is
and
will,
throughout
the
Security
Period,
remain
a
principal
debtor for all amounts owing under this Agreement and
the Finance Documents and no Borrower
shall in any
circumstances be
construed to be
a surety
for the obligations
of any other
Borrower
under this Agreement.
29.4
Subordination
Subject to Clause
29.5
(
Borrower's required action
), during the Security Period, no Borrower shall:
(a)
claim
any
amount
which
may
be
due
to
it
from
any
other
Borrower
whether
in
respect
of
a
payment made, or matter arising out of, this Agreement or any Finance Document, or any matter
unconnected with this Agreement or any Finance Document; or
(b)
take or enforce any form of security from any other Borrower for such an amount, or in any other
way seek to have recourse in respect of such an amount against any
asset of any other Borrower;
or
(c)
set off such an amount against any sum due from it to any other Borrower; or
(d)
prove
or
claim
for
such
an
amount
in
any
liquidation,
administration,
arrangement
or
similar
procedure involving any other Borrower or other Security Party; or
(e)
exercise or assert any combination of the foregoing.
29.5
Borrower's required action
If during
the Security
Period,
the Agent,
by
notice to
a Borrower,
requires
it to
take
any
action
referred
to
in
paragraphs
(a)
to
(d)
of
Clause
29.4
(
Subordination
),
in
relation
to
any
other
Borrower,
that Borrower
shall take
that action
as soon as
practicable after
receiving the Agent's
notice.
30
SUPPLEMENTAL
30.1
Rights cumulative, non-exclusive
The rights and remedies which the Finance Documents give to each Creditor Party are:
(a)
cumulative;
(b)
may be exercised as often as appears expedient; and
(c)
shall not,
unless a
Finance Document
explicitly and
specifically states
so, be
taken
to exclude
or
limit any right or remedy conferred by any law.
30.2
Severability of provisions
If any provision of a Finance Document is or subsequently becomes void, unenforceable or illegal,
that shall
not affect
the validity,
enforceability or
legality of the
other provisions of
that Finance
Document or of the provisions of any other Finance Document.
30.3
Counterparts
A Finance Document may be executed in any number of counterparts.
30.4
Third Party rights
A person who is not a
Party has no right under the
Contracts (Rights of Third Parties)
Act 1999 to
enforce or to enjoy the benefit of any term of this Agreement.
31
BAIL-IN
Notwithstanding any other term of any Finance Document or any other agreement,
arrangement
or
understanding
between
the
parties
to
a
Finance
Document,
each
Party
acknowledges
and
accepts
that
any
liability
of
any
party
to
a
Finance
Document
under
or
in
connection
with
the
Finance
Documents
may
be
subject
to
Bail-In
Action
by
the
relevant
Resolution
Authority
and
acknowledges and accepts to be bound by the effect of:
(a)
any Bail-In Action in relation to any such liability, including (without limitation):
(i)
a
reduction,
in
full
or
in
part,
in
the
principal
amount,
or
outstanding
amount
due
(including any accrued but unpaid interest) in respect of any such liability;
(ii)
a
conversion
of
all,
or
part
of,
any
such
liability
into
shares
or
other
instruments
of
ownership that may be issued to, or conferred on, it; and
(iii)
a cancellation of any such liability; and
(b)
a variation of any term
of any Finance Document
to the extent necessary to
give effect to any Bail-
In Action in relation to any such liability.
32
LAW AND JURISDICTION
32.1
English law
This Agreement and any non-contractual obligations arising
out of or in
connection with it shall
be
governed by, and construed in accordance with, English law.
32.2
Exclusive English jurisdiction
Subject to Clause
32.3
(
Choice of forum for the exclusive
benefit of Creditor Parties
), the courts of
England shall have exclusive jurisdiction to settle any Dispute.
32.3
Choice of forum for the exclusive benefit of Creditor Parties
Clause
32.2
(
Exclusive English jurisdiction
) is for the exclusive benefit of the Creditor
Parties, each
of which reserves the rights:
(a)
to
commence
proceedings
in
relation
to
any
Dispute
in
the
courts
of
any
country
other
than
England and which have or claim jurisdiction to that Dispute; and
(b)
to commence
such proceedings in
the courts of
any such country
or countries concurrently
with
or in addition to proceedings in England or without commencing proceedings in England.
No Borrower shall commence
any proceedings in any
country other than England in
relation to a
Dispute.
32.4
Process agent
Each Borrower irrevocably appoints Hill Dickinson Services (London) Ltd at its registered office for
the time being at The Broadgate
Tower,
20 Primrose Street, London EC2A 2EW,
United Kingdom,
to act
as its agent
to receive
and accept on
its behalf any
process or other
document relating to
any proceedings in the English courts which are connected with a Dispute.
32.5
Creditor Party rights unaffected
Nothing in this Clause
32
(
Law and Jurisdiction
) shall exclude or limit any right which any Creditor
Party may have (whether under the law of any country, an international convention or otherwise)
with regard to the bringing of proceedings,
the service of process,
the recognition or enforcement
of a judgment or any similar or related matter in any jurisdiction.
32.6
Meaning of "proceedings" and "Dispute"
In this Clause
32
(
Law and Jurisdiction
), "
proceedings
" means proceedings
of any
kind, including
an application for a
provisional or protective measure and
a "
Dispute
" means any dispute arising
out of or in connection with this Agreement (including a dispute relating to the existence, validity
or termination of
this Agreement) or
any non-contractual obligation arising
out of or
in connection
with this Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE
1
LENDERS AND COMMITMENTS
Lender
Facility Office
Commitment
(US Dollars)
Nordea Bank Abp, filial i Norge
Essendrops gate 7, Postboks
1166, Sentrum, 0107 Oslo
920058817 MVA
Norway
$167,263,025
SCHEDULE
2
DRAWDOWN NOTICE
To:
Nordea Bank Abp, filial i Norge
Essendrops gate 7, Postboks
1166, Sentrum, 0107 Oslo
920058817 MVA,
Norway
Attention:
[Loans Administration]
[
●
] 202[
●
]
DRAWDOWN NOTICE
1
We
refer
to
the
loan
agreement
(the
"
Loan
Agreement
")
dated
[
●
]
2024
and
made
between
ourselves, as joint
and several
Borrowers, the Lenders
referred to therein,
and yourselves
as Agent,
as Security Trustee,
as Bookrunner and as
Lead Arranger and
as Swap Bank
in connection with
a
facility of up to $167,263,025. Terms defined in the Loan Agreement have their defined meanings
when used in this Drawdown Notice.
2
We request to borrow the Loan as follows:
(a)
Amount: US$[167,263,025];
(b)
Drawdown Date: [
●
] 2024;
(c)
[Duration of the first Interest Period shall be [one][three] Months;] and
(d)
Payment instructions:
account in our name and numbered [
●
] with [
●
] of [
●
].
3
We represent and warrant that:
(a)
the
representations
and
warranties
in
clause
10
(
Representations
and
Warranties
)
of
the
Loan
Agreement
would
remain
true
and
not
misleading
if
repeated
on
the
date
of
this
notice
with
reference to the circumstances now existing; and
(b)
no Event of Default or Potential Event of Default has occurred or will result from the borrowing of
the Loan.
4
This notice cannot be revoked without the prior consent of the Majority Lenders.
____________________________
[Name of Signatory]
[officer]
for and on behalf of
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
INC.
EJITE SHIPPING COMPANY INC.
GUAM SHIPPING COMPANY INC.
PALAU SHIPPING COMPANY
INC.
SCHEDULE
3
CONDITION PRECEDENT DOCUMENTS
PART A
The following are the documents referred to in Clause
9.1(a)
(
Documents, fees and no default
).
1
A duly executed original of:
(a)
this Agreement;
(b)
the Corporate Guarantee;
(c)
the Agency and Trust Deed;
(d)
the Master Agreement; and
(e)
any Master Agreement Assignment.
2
Copies of the constitutional
documents of each Borrower, the Corporate Guarantor and any other
Security Party.
3
Copies of resolutions of the shareholders and directors
of each Borrower and each Security Party
(other than the
Corporate Guarantor) authorising the
execution of each of
the Finance
Documents
to which that Borrower or that Security
Party is a party and, in the
case of a Borrower, authorising
named officers to give the Drawdown Notice.
4
Copies
of
resolutions
of
the
executive
committee
of
the
Corporate
Guarantor
authorising
the
execution of each of the Finance Documents to which it is a party.
5
The original of any
power of attorney under which
any Finance Document is
executed on behalf of
a Borrower,
the Corporate Guarantor or any other Security Party.
6
Copies of all
consents which any Borrower, the Corporate Guarantor
or any Security
Party requires
to enter into, or make any payment
under, any Finance Document.
7
The originals
of
any
mandates
or other
documents required
in connection
with the
opening or
operation of the Earnings Accounts.
8
Such
documents
as
the
Agent
may
require
for
its
"Know
your
customer"
and
other
customary
money laundering and sanctions and counter-terrorist financing checks.
9
Documentary evidence that the agent for service
of process named in Clause
32.4
(
Process Agent)
has accepted its appointment.
10
Favourable
legal opinions
from lawyers
appointed by
the Agent
on such
matters
concerning the
laws of Marshall Islands and such other relevant jurisdictions as the Agent may require.
11
If the Agent so requires,
in respect of any of
the documents referred to
above, a certified English
translation prepared by a translator approved by the Agent.
PART B
The following
are the
documents referred
to in
Clause
9.1(b)
(
Documents, fees
and no
default
) required
before the Drawdown Date.
1
A
duly
executed
original
of
each
Mortgage
and
each
General
Assignment,
any
Charterparty
Assignment, each Shares
Pledge and the
Account Pledge in
respect of the
Earnings Account
held
by
each
Borrower
and
any
other
Finance
Document
not
delivered
pursuant
to
Part
A
of
this
Schedule 3 (
Condition precedent documents
).
2
Documentary evidence that:
(a)
each Ship is definitively
and permanently registered
in the name of
the relevant Borrower
under
an Approved Flag;
(b)
each
Ship
is
in
the
absolute
and
unencumbered
ownership
of
the
relevant
Borrower
save
as
contemplated by the Finance Documents;
(c)
each Ship maintains the class specified in Clause
14.3(b)
(
Repair and classification
);
(d)
each
Mortgage
has
been
duly
registered
or
recorded
against
the
relevant
Ship
as
a
valid
first
priority or,
as the case may be,
preferred statutory
ship mortgage in accordance with
the laws of
the applicable Approved Flag State; and
(e)
each
Ship
is
insured
in
accordance
with
the
provisions
of
this
Agreement
and
all
requirements
therein in respect of insurances have been complied with.
3
Documents
establishing
that
each
Ship
will,
as
from
the
Drawdown
Date,
be
managed
by
the
Approved Manager on terms acceptable to the Lenders, together with:
(a)
a
copy
of
the
Management
Agreement
and
the
Manager's
Undertaking
duly
signed
by
the
Approved Manager; and
(b)
copies
of
the
Approved
Manager's
Document
of
Compliance
and
of
each
Ship's
Safety
Management
Certificate
(together
with
any
other
details
of
the
applicable
safety
management
system which the Agent requires) and ISSC.
3.1
Favourable
legal opinions
from lawyers
appointed by
the Agent
on such
matters
concerning the
laws of Marshall
Islands, the
Approved Flag State
and such
other relevant jurisdictions
as the
Agent
may require.
4
At
the
cost
of
the
Borrowers
a
favourable
opinion
from
an
independent
insurance
consultant
acceptable to the Agent on such matters
relating to the insurances for
the Ship as the Agent may
require.
5
Two
valuations
of
each
Ship
addressed
to
the
Agent,
stated
to
be
for
the
purposes
of
this
Agreement and dated not earlier than 40
days before the Drawdown
Date in respect of that
Ship
and each
prepared
in accordance
with Clause
15.3
(
Valuation
of ships
) each
from
an Approved
Broker (
selected by the Borrowers and
approved by the Agent) which evidences compliance
with
Clause
15.1
(
Minimum required security cover
) immediately after the Drawdown Date.
6
Evidence
satisfactory
to
the
Agent
that
(i)
the
Existing
Indebtedness
is
repaid
in
full
and
the
relevant Borrowers
are released from all their obligations and liabilities under the Existing Facility
Agreement to
which each of
them is
a party,
and (ii) the
Existing Security
Interests in
respect of
the Ships and the Borrowers
have been discharged.
7
If the Agent so requires,
in respect of any of
the documents referred to
above, a certified English
translation prepared by a translator approved by the Agent.
Each
of
the documents
specified in
paragraphs
2, 3,
5
and 9
of
Part
A
and every
other copy
document
delivered under
this Schedule shall
be certified as
a true and
up to
date copy
by a senior
officer of each
Borrower or a qualified lawyer.
SCHEDULE
4
TRANSFER CERTIFICATE
The Transferor
and the Transferee
accept exclusive
responsibility for ensuring
that this Certificate
and
the transaction to which it relates comply
with all legal and
regulatory requirements applicable to them
respectively.
To:
Nordea
Bank Abp,
filial i
Norge
for
itself and
for
and on
behalf of
the Borrower,
[each Security
Party], the Security
Trustee,
each Lender and the Swap
Bank, as defined in
the Loan Agreement referred
to below.
[
●
]
1
This Certificate relates to
a Loan Agreement
(the "
Agreement
") dated [
●
] 2024 and
made between
(1) Manra Shipping Company Inc.,
Jabwot Shipping Company Inc., Arorae
Shipping Company Inc.,
Tamana
Shipping
Company
Inc.,
Beru
Shipping
Company
Inc.,
Bonriki
Shipping
Company
Inc.,
Taongi
Shipping
Company
Inc.,
Ejite
Shipping
Company
Inc.,
Guam
Shipping
Company
Inc.
and
Palau Shipping Company Inc. as joint and several borrowers
(the "
Borrowers
"), (2) the banks and
financial institutions named therein, (3) Nordea Bank Abp, filial i Norge as Agent, (4) Nordea Bank
Abp, filial i Norge as
Security Trustee, (5) Nordea Bank Abp,
filial i Norge as Lead
Arranger [and] (6)
Nordea Bank Abp,
filial I Norge
as Bookrunner and (7)
Nordea Bank Abp
as Swap Bank
for a
loan
facility of up to $167,263,025.
2
In this
Certificate,
terms defined
in the
Agreement shall,
unless the
contrary
intention
appears,
have the same meanings when used in this Certificate and:
"
Relevant
Parties
" means
the
Agent,
the Borrower,
[each Security
Party],
the Security
Trustee,
each Lender and the Swap Bank;
"
Transferor
" means [full name] of [facility office]; and
"
Transferee
" means [full name] of [facility office].
3
The effective date of this Certificate is [
●
],
Provided that
this Certificate shall not come into effect
unless it is signed by the Agent on or before that date.
4
[The
Transferor
assigns
to
the
Transferee
absolutely
all
rights
and
interests
(present,
future
or
contingent)
which the
Transferor
has as
Lender under
or by
virtue of
the Agreement
and every
other
Finance
Document
in
relation
to
[
●
]
per
cent.
of
its
Contribution,
which
percentage
represents $[
●
].]
5
[By virtue
of this
Transfer
Certificate and
Clause
26
(
Transfers
and changes in
Facility Offices
) of
the Loan Agreement, the
Transferor
is discharged [entirely
from its Commitment which amounts
to
$[
●
]
[from
[
●
]
per
cent.
of
its
Commitment,
which
percentage
represents
$[
●
]]
and
the
Transferee
acquires a Commitment of $[
●
].]
6
The
Transferee
undertakes
with
the
Transferor
and
each
of
the
Relevant
Parties
that
the
Transferee will observe and
perform all
the obligations
under the
Finance Documents
which Clause
26
(
Transfers and Changes in Facility Offices
) of the Loan
Agreement provides will become binding
on it upon this Certificate taking effect.
7
The Agent, at the request of
the Transferee (which request is hereby made) accepts, for the Agent
itself and for and on behalf of every other Relevant
Party,
this Certificate as a Transfer
Certificate
taking
effect
in
accordance
with
Clause
26
(
Transfers
and
changes
in
Facility
Offices
)
of
the
Agreement.
8
The Transferor:
(a)
warrants to the Transferee
and each Relevant Party that:
(i)
the Transferor
has full capacity
to enter
into this transaction
and has taken
all corporate
action and
obtained all
consents which
are required
in connection
with this
transaction;
and
(ii)
this Certificate is valid and binding as regards the Transferor;
(b)
warrants to the Transferee
that the Transferor
is absolutely entitled, free of encumbrances, to all
the rights and interests covered by the assignment in paragraph 4; and
(c)
undertakes
with
the
Transferee
that
the
Transferor
will,
at
its
own
expense,
execute
any
documents which
the Transferee
reasonably requests
for
perfecting
in any
relevant
jurisdiction
the Transferee's
title under this Certificate or for a similar purpose.
9
The Transferee:
(a)
confirms that it has received a copy of the Agreement and each of the other Finance Documents;
(b)
agrees
that
it
will
have
no
rights
of
recourse
on
any
ground
against
either
the
Transferor,
the
Agent, the Security Trustee, any Lender or the Swap Bank in the event that:
(i)
any of the Finance Documents prove to be invalid or ineffective;
(ii)
any
Borrower
or
any
Security
Party
fails
to
observe
or
perform
its
obligations,
or
to
discharge its liabilities, under any of the Finance Documents; and
(iii)
it proves impossible
to realise any
asset covered by
a Security
Interest created by
a Finance
Document, or the proceeds
of such assets are insufficient
to discharge the liabilities of
the
Borrowers or any Security Party under any of the Finance Documents;
(c)
agrees that it
will have no
rights of recourse
on any ground
against the Agent, the
Security Trustee,
any Lender or the Swap Bank in the event that this Certificate proves to be invalid or ineffective;
(d)
warrants to the Transferor
and each Relevant Party that:
(i)
it has
full capacity
to
enter into
this transaction
and has
taken
all corporate
action and
obtained all consents which it needs to take or obtain in connection with this transaction;
and
(ii)
this Certificate is valid and binding as regards the Transferee;
and
(e)
confirms the accuracy of the administrative details set out below regarding the Transferee.
10
The
Transferor
and
the
Transferee
each
undertake
with
the
Agent
and
the
Security
Trustee
severally,
on demand, fully
to indemnify the
Agent and/or the
Security Trustee
in respect of
any
claim, proceeding, liability or
expense (including all legal
expenses) which they
or either of
them
may
incur in
connection with
this Certificate
or any
matter
arising out
of
it, except
such as
are
shown to have
been mainly
and directly caused
by the
gross and culpable
negligence or dishonesty
of the Agent's or the Security Trustee's own officers or employees.
11
The Transferee shall repay to
the Transferor on demand
so much
of any sum
paid by
the Transferor
under
paragraph
9
as exceeds
one-half of
the
amount
demanded by
the Agent
or
the Security
Trustee
in
respect
of
a
claim,
proceeding,
liability
or
expense
which
was
not
reasonably
foreseeable at the date of this Certificate; but nothing in this paragraph shall affect the liability of
each of the Transferor and the Transferee
to the Agent or the Security Trustee for the full amount
demanded by it.
[Name of Transferor]
[Name of Transferee]
By:
By:
Date:
Date:
Agent
Signed for itself and for and on behalf of itself
as Agent and for every other Relevant Party
[Name of Agent]
By:
Date:
Administrative Details of Transferee
Name of Transferee:
Facility Office:
Contact Person
(Loan Administration Department):
Telephone:
Fax:
Contact Person
(Credit Administration Department):
Telephone:
Fax:
Account for payments:
Note
:
This
Transfer
Certificate
alone
may
not
be
sufficient
to
transfer
a
proportionate
share
of
the
Transferor's
interest in
the security constituted
by the Finance
Documents in the
Transferor's
or
Transferee's
jurisdiction.
It is
the responsibility
of each
Lender to
ascertain whether
any
other
documents are required for this purpose.
SCHEDULE
5
DESIGNATION NOTICE
Nordea Bank Abp, filial i Norge
Essendrops gate 7, Postboks
1166, Sentrum, 0107 Oslo
920058817 MVA,
Norway
[
●
]
Dear Sirs
Loan
Agreement
dated
[
●
]
2024
made
between
(i)
Manra
Shipping
Company
Inc.,
Jabwot
Shipping
Company Inc., Arorae Shipping Company
Inc., Tamana
Shipping Company Inc., Beru Shipping Company
Inc., Bonriki Shipping Company Inc., Taongi
Shipping Company Inc., Ejite Shipping Company Inc.,
Guam
Shipping Company Inc.
and Palau Shipping
Company Inc. as
joint and several borrowers, (ii)
the Lenders,
(iii) yourselves as
Agent, Security Trustee,
Bookrunner and Lead Arranger
and (iv) Nordea Bank Abp
as
Swap Bank (the "Loan Agreement").
We refer to:
1
the Loan Agreement;
2
the Master Agreement dated [
●
] 2024 made between ourselves and the Swap Bank; and
3
a Confirmation delivered pursuant
to the said Master
Agreement dated [
●
] and addressed by [
●
]
to us.
In accordance with the terms of the Loan Agreement, we hereby give you notice of the said Confirmation
and hereby confirm that the Transaction evidenced by it will be designated as a "Designated Transaction"
for the purposes of the Loan Agreement and the Finance Documents.
Yours
faithfully,
.................................................
[
●
]
for and on behalf of
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
INC.
EJITE SHIPPING COMPANY INC.
GUAM SHIPPING COMPANY INC.
PALAU SHIPPING COMPANY
INC.
SCHEDULE
6
SELECTION NOTICE
From:
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
INC.
EJITE SHIPPING COMPANY INC.
GUAM SHIPPING COMPANY INC.
PALAU SHIPPING COMPANY
INC.
To:
Nordea Bank Abp, filial i Norge
Essendrops gate 7, Postboks
1166, Sentrum, 0107 Oslo
920058817 MVA,
Norway
Dated: [
●
]
Loan
Agreement
dated
[
●
]
2024
made
between
(i)
Manra
Shipping
Company
Inc.,
Jabwot
Shipping
Company Inc., Arorae Shipping Company
Inc., Tamana
Shipping Company Inc., Beru Shipping Company
Inc., Bonriki Shipping Company Inc., Taongi
Shipping Company Inc., Ejite Shipping Company Inc.,
Guam
Shipping Company Inc.
and Palau Shipping
Company Inc. as
joint and several borrowers, (ii)
the Lenders,
(iii) yourselves as
Agent, Security Trustee,
Bookrunner and Lead Arranger
and (iv) Nordea Bank Abp
as
Swap Bank (the "Loan Agreement").
1
We refer to the Loan Agreement.
This is a
Selection Notice.
Terms defined in the Loan 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 [
●
]] OR [ an Interest Period for a part of
the Loan in an amount
equal to [
●
] (which is the amount of
the Repayment Instalment
next due)
ending on [
●
] (which is the Repayment
Date relating to
that Repayment Instalment)
and that the
Interest Period for the remaining part of the Loan shall be [
●
]].
3
This Selection Notice is irrevocable.
Yours
faithfully
____________________
[
●
]
authorised signatory for
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
INC.
EJITE SHIPPING COMPANY INC.
GUAM SHIPPING COMPANY INC.
PALAU SHIPPING COMPANY
INC.
EXECUTION PAGES
THE BORROWERS
SIGNED
by
)
)
Its
for and on behalf of
)
MANRA SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
Its
)
for and on behalf of
)
JABWOT SHIPPING COMPANY
INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
ARORAE SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
TAMANA SHIPPING COMPANY
INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
BERU SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
BONRIKI SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
TAONGI SHIPPING COMPANY
INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
EJITE SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
GUAM SHIPPING COMPANY INC.
)
in the presence of:
)
SIGNED
by
)
)
its
)
for and on behalf of
)
PALAU SHIPPING COMPANY
INC.
)
in the presence of:
)
THE LENDERS
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP,
FILIAL I NORGE
)
in the presence of:
)
THE SWAP BANK
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP
)
in the presence of:
)
THE AGENT
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP,
FILIAL I NORGE
)
in the presence of:
)
THE SECURITY TRUSTEE
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP,
FILIAL I NORGE
)
in the presence of:
)
THE LEAD ARRANGER
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP,
FILIAL I NORGE
)
in the presence of:
)
THE BOOKRUNNER
SIGNED
by
)
)
attorney-in-fact
)
for and on behalf of
)
NORDEA BANK ABP,
FILIAL I NORGE
)
in the presence of:
)