Exhibit 10.14
Execution Version
Certain identified information has been omitted from this document because (i) it is not material and is the type that the Company customarily and actually treats as private or confidential, and/or (ii) if disclosure would constitute a clearly unwarranted invasion of personal privacy and has been marked with “[***]” to indicate where omissions have been made.
CREDIT AND GUARANTY AGREEMENT,
dated as of June 26, 2026,
among
VENTURE GLOBAL SHIPPING HOLDINGS, LLC,
as Borrower,
VENTURE GLOBAL SHIPPING PLEDGOR, LLC,
as Pledgor,
THE VESSEL OWNER GUARANTORS PARTY HERETO,
as Vessel Owner Guarantors,
THE LENDERS PARTY HERETO,
ING CAPITAL LLC,
as Facility Agent and Security Trustee,
DEUTSCHE BANK AG, DEUTSCHE BANK AG, NEW YORK BRANCH
and ING CAPITAL LLC,
as Coordinating Lead Arrangers
Table of Contents
Page
ANNEXES
Annex I -- Initial Lenders and Commitments
SCHEDULES
Schedule 1.01(a) -- Collateral Vessels; Charters
Schedule 1.01(b) -- Approved Classification Societies
Schedule 1.01(c) -- Acceptable Flag Jurisdictions
Schedule 1.01(d) -- Acceptable Third Party Technical Managers
Schedule 1.01(e) -- Approved Brokers
Schedule 1.01(f) -- Disqualified Institutions
Schedule 2.09(a) -- Scheduled Amortization Payments
Schedule 3.06(a) -- Equity Interests
Schedule 3.06(c) -- Corporate Organizational Chart
Schedule 5.04 -- Insurance Requirements
Schedule 6.01(b) -- Existing Indebtedness
Schedule 6.04(a) -- Existing Investments
Schedule 6.09(d) -- Certain Affiliate Transactions
EXHIBITS
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Borrowing Request
Exhibit C -- Form of Compliance Certificate
Exhibit D -- Form of Intercompany Subordination Agreement
Exhibit E -- [Reserved]
Exhibit F -- Form of Term Note
Exhibit G -- [Reserved]
Exhibit H-1 -- Form of U.S. Tax Compliance Certificate (1)
Exhibit H-2 -- Form of U.S. Tax Compliance Certificate (2)
Exhibit H-3 -- Form of U.S. Tax Compliance Certificate (3)
Exhibit H-4 -- Form of U.S. Tax Compliance Certificate (4)
Exhibit I -- Form of Solvency Certificate
Exhibit J -- [Reserved]
Exhibit K -- [Reserved]
Exhibit L-1 -- Form of Marshall Islands Ship Mortgage
Exhibit L-2 -- Form of Liberian Ship Mortgage
Exhibit M -- Form of General Assignment Agreement
Exhibit N -- Form of Manager’s Undertaking
Exhibit O -- Form of Charterer Assignment
CREDIT AGREEMENT
This CREDIT AND GUARANTY AGREEMENT (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time, this “Agreement”), dated as of June 26, 2026, is among Venture Global Shipping Holdings, LLC, a Delaware limited liability company (the “Borrower”), Venture Global Shipping Pledgor, LLC, a Delaware limited liability company (the “Pledgor”), each Vessel Owner Guarantor, ING CAPITAL LLC, as facility agent for the Lenders (in such capacity, the “Facility Agent”), and ING CAPITAL LLC, as Security Trustee for the Secured Parties (in such capacity, the “Security Trustee”), and the lenders from time to time party hereto (the “Lenders”).
W I T N E S S E T H:
WHEREAS, the Borrower has requested, and the Lenders have agreed, to make available a senior secured term loan facility consisting of (i) the Initial Term Loans, to be available for borrowing on the Initial Borrowing Date, (ii) the Tranche 8 Term Loans, to be available for borrowing from the Tranche 8 Borrowing Date until the end of the Availability Period, and (iii) the Tranche 9 Term Loans, to be available for borrowing from the Tranche 9 Borrowing Date until the end of the Availability Period, in an aggregate principal amount not to exceed $1,500,000,000 (or such lesser amount determined in accordance with Section 2.01(b)), in each case, all as more particularly set forth herein;
WHEREAS, the Borrower has agreed to secure the Obligations by granting to the Security Trustee, for the benefit of the Secured Parties, a perfected lien on its Equity Interests in the Vessel Owner Guarantors owned by the Borrower and certain other Collateral, subject to certain agreed exceptions contained herein and in the other Loan Documents;
WHEREAS, the Pledgor has agreed to secure the Obligations by granting to the Security Trustee, for the benefit of the Secured Parties, a perfected lien on its Equity Interests in the Borrower, subject to certain agreed exceptions contained herein and in the other Loan Documents;
WHEREAS, the Vessel Owner Guarantors have agreed to guarantee the Obligations of the Borrower and the other Loan Parties hereunder and to secure their respective Obligations by granting to the Security Trustee, for the benefit of the Secured Parties, a first preferred ship mortgage or first priority statutory mortgage (as applicable) over their respective Collateral Vessels, and a perfected lien on certain other Collateral, subject to certain agreed exceptions contained herein and in the other Loan Documents; and
WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the other Loan Documents, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings specified below:
“ABR” shall mean, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%. Any change
in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate.
“ABR Borrowing” shall mean, as to any Borrowing, the ABR Loans comprising such Borrowing.
“ABR Loan” shall mean a Loan that bears interest based on ABR.
“Acceptable Flag Jurisdiction” shall mean such flag jurisdictions as are listed on Schedule 1.01(c) or otherwise approved by the Facility Agent (acting on the instructions of the Required Lenders (such approval not to be unreasonably withheld)).
“Acceptable Third Party Technical Managers” shall mean those third party technical managers as are listed on Schedule 1.01(d) and their Affiliates.
“Account Bank” shall mean Bank of America, N.A. (or in each case an applicable Affiliate thereof) or another nationally recognized bank or securities intermediary selected by the Borrower (and reasonably acceptable to the Facility Agent) at which any of the Cash Collateral Accounts is maintained by the Borrower.
“Account Control Agreement” shall mean that certain Deposit Account Control Agreement by and between the Borrower, the Account Bank and the Security Trustee.
“Additional Collateral” shall mean additional property of the Borrower, any Vessel Owner Guarantor or any Affiliate thereof reasonably satisfactory to the Required Lenders posted in favor of the Security Trustee as Collateral to cure non-compliance with Section 6.10(a), as applicable (it being understood that cash collateral comprised of Dollars (which shall be valued at par) in an aggregate amount or with value sufficient to cure such non-compliance shall be acceptable).
“Administrative Questionnaire” shall mean an administrative questionnaire in the form supplied from time to time by the Facility Agent.
“Advisors” shall mean legal counsel (including local, foreign, specialty and regulatory counsel), auditors, accountants, consultants, appraisers, engineers, monitors or other advisors.
“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” shall mean, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided that, for purposes of Section 6.09, the term “Affiliate” shall also include (i) any Person that directly or indirectly owns more than 15% of any class of Equity Interests of the Person specified and (ii) any Person that is an officer or director of the Person specified.
“Agency Fee Letter” shall mean the Agency Fee Letter, dated as of the Closing Date, between the Borrower, the Facility Agent and the Security Trustee.
“Agents” shall mean the Coordinating Lead Arrangers, the Facility Agent and the Security Trustee; and “Agent” shall mean any of them, as the context may require.
“Agreement” shall have the meaning assigned to such term in the preamble hereto.
“AIF” shall have the meaning given to the term under the AIFMD Law.
“AIFMD” shall mean Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010, as the same may be amended, supplemented, superseded or re-adopted from time to time (whether with or without qualifications).
“AIFMD Law” shall mean (a) the AIFMD and (b) any applicable law of a Member State of the European Union implementing the AIFMD.
“Annex VI” shall mean Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), as modified by the Protocol of 1978 relating thereto.
“Anti-Corruption Laws” shall mean all applicable laws relating to the prevention of corruption and bribery, including, without limitation, the FCPA, the UKBA, the Bribery Act 2016 of Bermuda and any other similar law of any jurisdiction.
“Anti-Money Laundering Laws” shall mean all applicable anti-money laundering laws and any related or similar rules, regulations or guidelines issued, administered or enforced by any applicable public authority, including the German Money Laundering Act (Geldwäschegesetz) and any other law governing predicate offences for money laundering.
“Anti-Terrorism Laws” shall have the meaning assigned to such term in Section 3.20(a).
“Applicable Margin” shall mean (a) with respect to a SOFR Loan, 2.00%, and (b) with respect to an ABR Loan, 1.00%.
“Approved Broker” shall mean any of the entities listed in Schedule 1.01(e), or any other independent shipbroker to be mutually agreed upon between the Facility Agent (acting on instructions from the Required Lenders) and the Borrower.
“Approved Classification Society” shall mean any classification society set forth on Schedule 1.01(b) or other member of the International Association of Classification Societies approved by the Facility Agent, acting on instructions from the Required Lenders (such approval not to be unreasonably withheld).
“Approved Electronic Communications” shall mean any notice, demand, communication, information, document or other material that any Loan Party provides to the Facility Agent pursuant to any Loan Document or the transactions contemplated therein which is distributed to the Agents or the Lenders by means of electronic communications pursuant to Section 11.01(b).
“Approved Fund” shall mean, with respect to any Lender (including an Eligible Assignee that becomes a Lender), any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank and other commercial loans and similar extensions of credit in the ordinary course of its business and that is administered, advised (in an investment advisory capacity) or managed by (a) such Lender (or such Eligible Assignee), (b) an Affiliate of such Lender (or such Eligible Assignee) or (c) an entity or an Affiliate of an entity that administers, advises (in an investment advisory capacity) or manages such Lender (or such Eligible Assignee).
“Asset Sale” shall mean any disposition of a Collateral Vessel by any Vessel Owner Guarantor to any Person other than the Borrower or any other Vessel Owner Guarantor (including any disposition of capital stock or other securities of, or Equity Interests of, a Person which directly or indirectly owns such Collateral Vessel). Notwithstanding the foregoing, an “Asset Sale” shall not include any disposition of
property by a Vessel Owner Guarantor permitted by, or expressly referred to in, Section 6.06 (other than Section 6.06(b)).
“Assignment and Acceptance” shall mean an assignment and acceptance agreement entered into by a Lender, as assignor, and an assignee (with the consent of any party whose consent is required pursuant to Section 11.04(b)), and accepted by the Facility Agent, substantially in the form of Exhibit A, or such other form approved by the Facility Agent.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.21.
“Availability Period” shall mean the period beginning on the Closing Date and ending on the date that is nine (9) months following the Closing Date.
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Product” shall mean transactions under Interest Rate Hedging Agreements extended to the Borrower by a Bank Product Provider.
“Bank Product Agreements” shall mean those agreements entered into from time to time by the Borrower with a Bank Product Provider in connection with the obtaining of any of the Bank Products.
“Bank Product Obligations” shall mean (a) all Hedging Obligations pursuant to Interest Rate Hedging Agreements entered into with one or more of the Bank Product Providers, and (b) all amounts that the Facility Agent or any Lender is obligated to pay to a Bank Product Provider as a result of the Facility Agent or such Lender purchasing participations from, or executing guarantees or indemnities or reimbursement obligations to, a Bank Product Provider with respect to the Bank Products provided by such Bank Product Provider to the Borrower.
“Bank Product Provider” shall mean any Agent, any Lender or any of their respective Affiliates (or any Person who at the time the respective Bank Product Agreement was entered into by such Person was an Agent, a Lender or an Affiliate thereof).
“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto.
“Benchmark” shall mean, initially, the Term SOFR Reference Rate; provided that, if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.21.
“Benchmark Replacement” shall mean, with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected by the Facility Agent and the Borrower giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Facility Agent and the Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” shall mean a date and time determined by the Facility Agent, which date shall be no later than the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that, such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” shall mean, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.21.
“Beneficial Ownership Certification” shall mean a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation in form and substance satisfactory to the Lender or the Facility Agent requesting the same.
“Beneficial Ownership Regulation” shall mean 31 C.F.R. § 1010.230.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States.
“Borrower” shall have the meaning assigned to such term in the preamble hereto.
“Borrowing” shall mean Loans of the same Class made or continued on the same date and as to which a single Interest Period is in effect.
“Borrowing Request” shall mean a request by the Borrower in accordance with the terms of Section 2.03 and substantially in the form of Exhibit B, or such other form as mutually agreed to by the Facility Agent and the Borrower from time to time.
“Business Day” shall mean any day other than a Saturday, Sunday or other day on which banks in New York City or Frankfurt am Main are authorized or required by law or other governmental action to close; provided that, with respect to matters in respect of SOFR Loans, Business Day shall be deemed to mean a U.S. Government Securities Business Day.
“Capital Requirements” shall mean, as to any Person, any matter, directly or indirectly, (i) regarding capital adequacy, capital ratios, capital requirements, liquidity requirements, the calculation of such Person’s capital, liquidity or similar matters, or (ii) affecting the amount of capital required to be obtained or maintained by such Person or any Person controlling such Person (including any direct or indirect holding company), or the manner in which such Person or any Person controlling such Person (including any direct or indirect holding company), allocates capital to any of its contingent liabilities (including letters of credit), advances, acceptances, commitments, assets or liabilities.
“Cash Collateral Account” shall mean each of the Earnings Account, Debt Service Reserve Account and Operating Expense Reserve Account.
“Cash Equivalents” shall mean, as of any date of determination and as to any Person, any of the following: (a) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that, the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition by such Person, (b) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one year from the date of acquisition by such Person and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) time deposits and certificates of deposit of any (i) Lender or any (ii) commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having, capital and surplus aggregating in excess of $500,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one year from the date of acquisition by such Person, (d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with any Person meeting the qualifications specified in clause (c) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities, (e) commercial paper issued by any Person incorporated in the United States rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s, and in each case maturing not more than one year after the date of acquisition by such Person and (f) investments in money market funds at least 90% of whose assets are comprised of securities of the types described in clauses (a) through (e) above.
“Cash Flow Available for Debt Service” shall mean, for any calculation period, the amounts deposited into the Earnings Account (or, in the case of the calculation of any projected Debt Service Coverage Ratio, expected to be received) during such period.
“Casualty Event” shall mean any loss of title (other than through a consensual disposition of such property in accordance with this Agreement) or any loss of or damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any property of any Person. “Casualty Event” shall include any actual, constructive, compromised or arranged Total Loss.
“CERCLA” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq.
“Change in Control” shall mean the occurrence of any of the following:
(a) the Sponsor, collectively, at any time ceases to own, directly or indirectly, at least 50.1% of the Equity Interests of the Charterer; or
(b) the Charterer, at any time, ceases to own directly 100% of the Equity Interests of the Pledgor or ceases to have the power to vote, or direct the voting of, any such Equity Interests
(c) the Pledgor, at any time, ceases to own directly 100% of the Equity Interests of the Borrower or ceases to have the power to vote, or direct the voting of, any such Equity Interests; or
(d) in respect of a Vessel Owner Guarantor, the Borrower at any time ceases to own directly 100% of the Equity Interests in such Vessel Owner Guarantor or ceases to have the power to vote, or direct the voting of, any such Equity Interests.
“Change in Law” shall mean the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, order, rule, regulation, policy, or treaty, (b) any change in any law, order, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary, (x) requests, rules, guidelines or directives under the Dodd-Frank Wall Street Reform and Consumer Protection Act or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.
“Charges” shall have the meaning assigned to such term in Section 11.13.
“Charter” shall mean, (a) as of the Closing Date until the Relevant Earlier Date, in relation to each Vessel identified in Schedule 1.01(a), the bareboat charter entered into between the relevant Vessel Owner Guarantor (as owner) and the Charterer (as bareboat charterer) in respect of such Vessel, as identified in Schedule 1.01(a), (b) as of the Relevant Earlier Date until the Relevant Later Date, (i) each Charter referred to in paragraph (a) of this definition and (ii) (A) if the Relevant Earlier Date is the Tranche 8 Borrowing Date, the Venture Manatee Charter, or (B) if the Relevant Earlier Date is the Tranche 9 Borrowing Date, Venture Venice Charter, and (c) as of the Relevant Later Date and thereafter, (i) each Charter referred to in paragraph (b) of this definition, (ii) the Venture Manatee Charter and (iii) the Venture Venice Charter.
“Charter Collateral” shall have the meaning assigned to such term in each General Assignment.
“Charter Performance Guarantee” shall mean (a) as of the Closing Date until the Relevant Earlier Date, each Charter Performance Guarantee, dated as of the Closing Date, between the relevant Vessel Owner Guarantor and the Sponsor with respect to each Collateral Vessel as of the Closing Date, (b) as of the Relevant Earlier Date until the Relevant Later Date, (i) each Charter Performance Guarantee referred to in paragraph (a) of this definition and (ii)(A) if the Relevant Earlier Date is the Tranche 8 Borrowing Date, the Charter Performance Guarantee, dated as of the Tranche 8 Borrowing Date, between the relevant Vessel Owner Guarantor and the Sponsor with respect to the Venture Manatee, or (B) if the
Relevant Earlier Date is the Tranche 9 Borrowing Date, the Charter Performance Guarantee, dated as of the Tranche 9 Borrowing Date, between the relevant Vessel Owner Guarantor and the Sponsor with respect to the Venture Venice, and (c) as of the Relevant Later Date and thereafter, (i) each Charter Performance Guarantee referred to in paragraph (b) of this definition and (ii)(A) if the Relevant Later Date is the Tranche 8 Borrowing Date, the Charter Performance Guarantee, dated as of the Tranche 8 Borrowing Date, between the relevant Vessel Owner Guarantor and the Sponsor with respect to the Venture Manatee, or (B) if the Relevant Later Date is the Tranche 9 Borrowing Date, the Charter Performance Guarantee, dated as of the Tranche 9 Borrowing Date, between the relevant Vessel Owner Guarantor and the Sponsor with respect to the Venture Venice, in each case, as may be amended, modified or supplemented from time to time solely with the prior written consent of the Facility Agent (acting on the instructions of the Required Lenders).
“Charterer” shall mean Venture Global Commodities, LLC, a Delaware limited liability company.
“Charterer Assignment” shall have the meaning set forth in the definition of “Vessel Collateral Requirements.”
“Charterer’s Collateral” shall have the meaning assigned to the term “Collateral” (as such term is defined in each Charterer Assignment).
“Claims” shall have the meaning assigned to such term in Section 11.03(b).
“Class” shall mean the respective facility and commitments utilized in making Loans hereunder, including (i) as of the Closing Date, the Initial Term Loans made pursuant to Section 2.01(a)(i) on such date, (ii) the Tranche 8 Loans made pursuant to Section 2.01(a)(ii), and (iii) the Tranche 9 Loans made pursuant to Section 2.01(a)(iii).
“Closing Date” shall mean the date on which the Borrower, the Facility Agent and each of the Lenders who are initially parties hereto shall have signed a counterpart of this Agreement (whether the same or different counterparts) and delivered (including by e-mail transmission) such counterpart to the Facility Agent.
“Closing Date Appraisals” shall mean the Vessel Appraisals delivered to the Facility Agent from Clarksons Valuations Limited dated June 15, 2026, and from Fearnleys Valuations AS dated June 5, 2026.
“Code” shall mean the Internal Revenue Code of 1986, as amended.
“Collateral” shall mean, collectively, all of the Collateral Vessels, all Pledge Agreement Collateral, all Earnings and Insurance Collateral, all Charter Collateral and all other property of whatever kind and nature, whether now existing or hereafter acquired, pledged or purported to be pledged as collateral or otherwise subject to a security interest or purported to be subject to a security interest under any Security Document.
“Collateral Maintenance Test” shall have the meaning assigned to such term in Section 6.10(a).
“Collateral Vessel” shall mean (a) as of the Closing Date until the Relevant Earlier Date, the vessels identified on Schedule 1.01(a), (b) as of the Relevant Earlier Date until the Relevant Later Date, (i) each vessel referred to in paragraph (a) of this definition and (ii)(A) if the Relevant Earlier Date is the Tranche 8 Borrowing Date, the Venture Manatee, or (B) if the Relevant Earlier Date is the Tranche 9
Borrowing Date, the Venture Venice, and (c) as of the Relevant Later Date and thereafter, (i) each vessel referred to in paragraph (a) of this definition, and (ii) the Venture Manatee and (iii) the Venture Venice.
“Collateral Vessel Disposition” shall have the meaning assigned to such term in Section 2.10(b)(i).
“Commercial Manager” shall mean (a) the Charterer or (b) one or more other pool operators or commercial managers (including any Subsidiary of the Borrower) selected by the Borrower and reasonably acceptable to the Facility Agent (acting on instructions from the Required Lenders).
“Commitments” shall mean the Initial Term Commitments, the Tranche 8 Commitment and the Tranche 9 Commitment.
“Commitment Fee” shall have the meaning assigned to such term in Section 2.05(a).
“Commodity Exchange Act” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Communications” shall have the meaning assigned to such term in Section 11.01(b).
“Companies” shall mean the Pledgor, the Borrower and its Subsidiaries; and “Company” shall mean any one of them.
“Compliance Certificate” shall mean a certificate of a Responsible Officer of the Borrower substantially in the form of Exhibit C or such other form as the Facility Agent and the Borrower may agree to from time to time.
“Conforming Changes” shall mean, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.21 and other technical, administrative or operational matters) that the Facility Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Facility Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Facility Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Connection Income Taxes” shall mean Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Consolidated” shall mean the consolidation of accounts in accordance with GAAP.
“Contingent Obligation” shall mean, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing any Indebtedness, leases, or other obligations (including dividends on Disqualified Capital Stock) (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation agreement, understanding or arrangement of such Person, whether or not contingent: (a) to purchase any such
primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, net equity, liquidity, level of income, cash flow or solvency of the primary obligor; (c) to purchase or lease property, securities or services primarily for the purpose of assuring the primary obligor of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement or equivalent obligation arises (which reimbursement obligation shall constitute a primary obligation); or (e) otherwise to assure or hold harmless the primary obligor of any such primary obligation against any monetary loss or the payment of such primary obligation (in whole or in part) in respect thereof; provided that, the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or any product warranties given in the ordinary course of business. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable, whether singly or jointly, pursuant to the terms of the instrument, agreements or other documents or, if applicable, unwritten enforceable agreement, evidencing such Contingent Obligation) or, if not stated or determinable, the amount that can reasonably be expected to become an actual or matured liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.
“Contribution Notice” shall mean a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.
“Coordinating Lead Arrangers” shall mean Deutsche Bank AG, Deutsche Bank AG, New York Branch and ING Capital LLC.
“Credit Extension” shall mean the making of a Loan by a Lender.
“Daily Simple SOFR” shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Facility Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that, if the Facility Agent decides that any such convention is not administratively feasible for the Facility Agent, then the Facility Agent may establish another convention in its reasonable discretion; provided further that, if the sum of Daily Simple SOFR and the SOFR Adjustment as so determined shall ever be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor.
“Debtor Relief Laws” shall mean the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, winding-up or similar debtor relief laws of the United States, Bermuda or other applicable jurisdictions from time to time in effect.
“Debt Service” shall mean, for any period, an amount equal to (a) scheduled cash interest, scheduled commitment fees and scheduled principal payable during such period in respect of all Indebtedness of the Loan Parties (without duplication) for borrowed money (including the Loans) minus
(b) any net payments received by the Borrower during such period pursuant to Permitted Hedging Agreements plus (c) any net payments paid by the Borrower during such period pursuant to Permitted Hedging Agreements. Notwithstanding the foregoing and for the avoidance of doubt, “Debt Service” shall not include any principal payments due on any maturity date, any voluntary prepayments and any mandatory prepayments (including any excess cash flow sweeps), in each case, payable in respect of such Indebtedness.
“Debt Service Coverage Ratio” shall mean, in respect of any Test Date, the ratio of (a) projected Cash Flow Available for Debt Service for the Forward-Looking Test Period commencing on such Test Date, to (b) projected Debt Service for such Forward-Looking Test Period.
“Debt Service Reserve Account” shall mean an account of the Borrower established with the Account Bank and designated as the “Debt Service Reserve Account” in writing by the Borrower to the Facility Agent and the Security Trustee.
“Debt Service Reserve Required Balance” shall mean, as of any date of determination, an amount equal to the Debt Service in respect of the Loans projected to be due during the next three (3) month period following such date of determination.
“Default” shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.
“Default Excess” shall have the meaning assigned to such term in Section 2.16(c).
“Default Period” shall have the meaning assigned to such term in Section 2.16(c).
“Default Rate” shall have the meaning assigned to such term in Section 2.06(b).
“Defaulting Lender” shall mean any Lender that has (a) failed to (i) fund its portion of any Borrowing or Loan, within two Business Days of the date on which it shall have been required to fund the same (unless such Lender notifies the Facility Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied), or (ii) pay to the Facility Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) notified the Borrower, the Facility Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) failed, within three Business Days after written request by the Facility Agent or the Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its prospective funding obligations hereunder (unless the subject of a good faith dispute between the Borrower and such Lender); provided that, any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Facility Agent or the Borrower, or (d) at any time after the Closing Date (i) been (or has a direct or indirect parent company that has been) adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its properties or assets to be, insolvent or had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets by any Governmental
Authority having regulatory authority over such Person, (ii) become the subject of a proceeding under any Debtor Relief Laws, or (iii) become the subject of a Bail-In Action. For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender (A) solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender or (B) as a result of an Undisclosed Administration. Any determination by the Facility Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Facility Agent to the Borrower and each other until and unless determined otherwise pursuant to Section 2.16(c). In no event shall the reallocation of funding obligations provided for in Section 2.16(c) as a result of a Lender being a Defaulting Lender nor the performance by non-Defaulting Lenders of such reallocated funding obligations by themselves cause the relevant Defaulting Lender to become a non-Defaulting Lender.
“Disposition” or “disposition” shall mean, with respect to any property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition of such property (including (i) by way of merger or consolidation, (ii) any Sale and Leaseback Transaction and (iii) any Synthetic Lease).
“Disqualified Capital Stock” shall mean any Equity Interest which, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the 91st day after the Maturity Date in effect at the time of the issuance of such Disqualified Capital Stock, (b) is convertible into or exchangeable or exercisable (unless at the sole option of the issuer thereof) for (i) debt securities or other indebtedness or (ii) any Equity Interests referred to in clause (a) above, in each case at any time on or prior to the date that is 91 days after the Maturity Date in effect at the time of the issuance of such Disqualified Capital Stock, or (c) contains any repurchase or payment obligation which may come into effect prior to the date that is 91 days after such Maturity Date. For the avoidance of doubt, any Equity Interest that may or shall be repurchased or redeemed (but only to the extent permitted hereunder at such time) from officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of Holding or any of its Subsidiaries, upon their death, disability, retirement, severance or termination of employment or service shall not be deemed to be “Disqualified Capital Stock” for such reason alone.
“Disqualified Institutions” shall mean (a) any Person set forth by the Borrower on Schedule 1.01(f), which may be updated from time to time by the Borrower by three (3) Business Days’ prior written notice to the Facility Agent to add any competitor of the Borrower or any Vessel Owner Guarantor or their Affiliates or (b) any clearly identifiable (solely on the basis of its name or as identified by the Borrower to the Facility Agent) Affiliate of the entities described in clause (a), excluding any bona fide debt fund affiliate of such Person that is primarily engaged in, or advises funds or other investment vehicles that are engaged in, making, purchasing, holding, or otherwise investing in commercial loans, bonds, and similar extensions of credit or securities in the ordinary course of its business (a “Bona Fide Debt Fund Affiliate”) (which shall include, for the avoidance of doubt, any Bona Fide Debt Fund Affiliates of [***]); provided that, any designation as a “Disqualified Institution” shall not apply retroactively to any then current Lenders or any entity that has acquired an assignment or participation interest in any Loans in accordance with and under this Agreement. The parties to this Agreement hereby acknowledge and agree that the Facility Agent shall not be deemed to be in breach under this Agreement
or to have any duty or responsibility or to incur any liabilities, nor shall the Facility Agent have any duty, responsibility or liability to monitor or enforce assignments, participations or other actions in respect of Disqualified Institutions, or otherwise take (or omit to take) any action with respect thereto.
“Dividend” shall mean, with respect to any Person, that such Person has declared or paid a dividend or returned any equity or share capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of property (other than Qualified Capital Stock of such Person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such Person (or any options or warrants issued by such Person with respect to its Equity Interests). Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.
“Dollars” or “$” shall mean lawful money of the United States.
“Earnings Account” shall mean an account of the Borrower established with the Account Bank and designated as the “Earnings Account” in writing by the Borrower to the Facility Agent and the Security Trustee.
“Earnings and Insurance Collateral” shall mean all “Earnings Collateral,” “Insurance Collateral” and “Requisition Compensation,” as the case may be, as defined in each General Assignment Agreement.
“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” shall mean any Person that meets the requirements to be an assignee under Section 11.04(b) (subject to such consents, if any, as may be required under Section 11.04(b)) but, in any event, excluding Disqualified Institutions.
“Employee Benefit Plan” shall mean any “employee benefit plan” as defined in Section 3(3) of ERISA, which is, or at any time during which the applicable statute of limitations remains open, was maintained or contributed to by any Company or any of its ERISA Affiliates (other than a Multiemployer Plan). For the avoidance of doubt, the definition of “Employee Benefit Plan” does not include Non-U.S. Plans.
“Environment” shall mean air, land, soil, seas, surface waters, ground waters, and inland waters, including rivers, streams and river sediments.
“Environmental Claim” shall mean any written claim, notice, demand, Order, action, suit, proceeding or other written communication alleging or asserting liability or obligations relating to Environmental Law, Hazardous Materials or the Environment, including liability or obligation for reporting, investigation, assessment, remediation, removal, cleanup, response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, wrongful death, property damage, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release of Hazardous Material in, on, into or from the Environment at any location or from any Vessel or (ii) any actual or alleged violation of or non-compliance with Environmental Law.
“Environmental Law” shall mean any and all applicable current and future Legal Requirements relating to the Environment, pollution, any Hazardous Materials, including the Release or threatened Release of any Hazardous Material and exposure to any Hazardous Material, natural resource damages, or occupational safety or health.
“Environmental Permit” shall mean any permit, license, approval, consent, registration, notification, exemption or other authorization required by or from a Governmental Authority under any Environmental Law.
“Equity Interest” shall mean, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity or share capital of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), or if such Person is a limited liability company, membership interests, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.
“ERISA Affiliate” shall mean, with respect to any Person, any trade or business (whether or not incorporated) that, together with such Person, is treated as a single employer under Section 414(b) or (c) of the Code (and, for purposes of Section 302 of ERISA and each “applicable section” under Section 414(t)(2) of the Code, under Section 414(b), (c), (m) or (o) of the Code), or under Section 4001 of ERISA.
“ERISA Event” shall mean: (a) the failure to make any required contribution to any Pension Plan or Multiemployer Plan; or (b) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which would reasonably be expected to result in liability to any Company or any of its ERISA Affiliates.
“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” shall have the meaning assigned to such term in Section 8.01.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Swap Obligation” shall mean, with respect to any Person, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Vessel Owner Guarantor of, or the grant by such Person of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Person’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guarantee of such Person or the grant of such security interest would otherwise have become effective with respect to such Swap Obligation but for such Person’s failure to constitute an “eligible contract participant” at such time. If a Swap Obligation arises under a master or netting agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of the applicable Vessel Owner Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder.
“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to such Recipient or required to be withheld or deducted from a payment to such Recipient: (a) Taxes imposed on or measured by net income (however denominated), backup withholding Taxes, branch profits Taxes, and franchise Taxes, in each case (i) imposed on such Recipient as a result of such Recipient being organized under the laws of, or having its principal office or applicable lending office located in, the jurisdiction of the Governmental Authority imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes, including (for the avoidance of doubt) U.S. federal income Tax imposed on the net income of a Foreign Lender as a result of such Foreign Lender engaging in a trade or business in the United States; (b) Taxes imposed on any Recipient that are attributable to such Recipient’s failure to comply with the requirements of Section 2.15(f) or Section 2.15(g); (c) with respect to any Lender, any U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to any law in effect at the time (i) such Lender acquires such interest in a Loan or Commitment (other than pursuant to an assignment requested by the Borrower under Section 2.16), or (ii) such Lender changes its applicable lending office, except, in each case, to the extent that amounts with respect to such Taxes were payable either to such Lender’s assignor immediately prior to such Lender becoming a party hereto or to such Lender immediately prior to such change in applicable lending office; and (d) any Taxes that are imposed pursuant to FATCA.
“Executive Order” shall have the meaning assigned to such term in Section 3.20(a).
“Facility Agent” shall have the meaning assigned to such term in the preamble hereto and includes each other Person appointed as the successor administrative agent pursuant to Article X.
“Facility Agent Fees” shall have the meaning assigned to such term in Section 2.05(b)(i).
“Fair Market Value” shall mean, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined (x) in good faith by the applicable Governing Authority or, pursuant to a specific delegation of authority by such Governing Authority or a designated senior executive officer, of the Borrower, or the Vessel Owner Guarantor selling such asset or (y) in the case of Collateral Vessels for purposes of calculating the Collateral Maintenance Test or the LTV Ratio, the Vessel Appraisal Value.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements (and related legislation or official administrative guidance) implementing the foregoing.
“FCPA” shall mean the United States Foreign Corrupt Practices Act of 1977, as amended.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1.00%) of the quotations for the day for such transactions received by the Facility Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter” shall mean that certain Arranger and Upfront Fee Letter, dated as of the date hereof, by and between the Borrower and each Coordinating Lead Arranger.
“Fees” shall mean the Commitment Fees, the Facility Agent Fees, the Security Trustee Fees and the other fees referred to in Section 2.05.
“Financial Covenants” shall mean the covenants set forth in Section 6.10.
“Financial Support Direction” shall mean a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004.
“First Priority” shall mean, with respect to any Lien purported to be created in any Collateral Vessel pursuant to a Vessel Mortgage, that (a) such Vessel Mortgage is duly recorded or registered in accordance with the laws of the applicable Acceptable Flag Jurisdiction in which such Collateral Vessel is registered and (b) such Lien constitutes the most senior Lien on such Collateral Vessel, except for Permitted Liens which may, under applicable law, be entitled to priority. For the avoidance of doubt, the existence of any Permitted Lien shall not be deemed to impair the First Priority status of any Lien created by any Vessel Mortgage.
“Floor” shall mean a rate of interest equal to 0.00%
“Foreign Lender” shall mean any Lender that is not a “United States Person” within the meaning of Section 7701(a)(30) of the Code.
“Forward-Looking Test Period” shall mean, in respect of any Test Date, the period of twelve (12) consecutive months commencing on (and including) such Test Date.
“Funding Default” shall have the meaning assigned to such term in Section 2.16(c).
“GAAP” shall mean generally accepted accounting principles in the United States applied on a consistent basis.
“General Assignment Agreement” shall have the meaning set forth in the definition of “Vessel Collateral Requirements”.
“Governing Authority” shall mean, (a) in the case of the Borrower, the Pledgor as sole member of the Borrower, and (b) in the case of each Vessel Owner Guarantor, the Borrower as sole member of each Vessel Owner Guarantor.
“Governmental Approval” shall mean any consent, authorization, approval, order, license, franchise, permit, certificate, accreditation, registration, filing or notice, of, issued by, from or to, or other act by or in respect of, any Governmental Authority.
“Governmental Authority” shall mean any federal, state, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality, regulatory or self-regulatory, body or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, the territory of Bermuda or a foreign entity or government (including any international or supra-national bodies such as the International Maritime Organization, the European Union or the European Central Bank).
“Guaranteed Obligations” shall have the meaning assigned to such term in Section 7.01.
“Guarantees” shall mean the guarantees issued pursuant to Article VII by each of the Vessel Owner Guarantors.
“Hazardous Materials” shall mean hazardous substances, hazardous wastes, hazardous materials, or any other pollutants, contaminants, chemicals, wastes, materials, compounds, constituents or substances, defined under, subject to regulation under, or which can give rise to liability or obligations under, any Environmental Laws, including substances required or recommended to be listed on a Collateral Vessel’s IHM and petroleum, petroleum products, petroleum by-products, petroleum breakdown products, petroleum-derived substances, crude oil or any fraction thereof.
“Hedging Agreement” shall mean (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions, cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, futures contracts or other liabilities for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract or any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement, and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement or documentation, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Hedging Obligations” shall mean obligations under or with respect to Interest Rate Hedging Agreements.
“IHM” shall mean, in relation to a Collateral Vessel, an “Inventory of Hazardous Materials” prepared in accordance with IMO Resolution MEPC.269(68), “2015 Guidelines for the Development of
the Inventory of Hazardous Materials” (adopted on 15 May 2015 by the Marine Environment Protection Committee of the International Maritime Organization), issued by that Collateral Vessel’s classification society, which includes a list of required materials known to be potentially hazardous and listed in the construction of or on board that Collateral Vessel, their location and approximate quantities.
“Indebtedness” of any Person shall mean, without duplication, (a) all indebtedness (including principal, interest, fees and charges) of such Person for borrowed money or for the deferred purchase price of property or services (including, for the avoidance of doubt, any Disqualified Capital Stock); (b) the maximum amount available to be drawn under all letters of credit issued for the account of such Person and all unpaid drawings in respect of such letters of credit; (c) all indebtedness of the types described in paragraphs (a) to (g) of this definition secured by any Collateral on any property owned by such Person, whether or not such indebtedness has been assumed by such Person (to the extent of the value of the respective property); (d) the aggregate amount required to be capitalized under leases under which such Person is the lessee; (e) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted (i.e. take-or-pay and similar obligations); (f) all Contingent Obligations of such Person, and (g) all obligations (after giving effect to netting) under any Interest Rate Hedging Agreement. Notwithstanding the foregoing, Indebtedness shall not include trade payables, or indebtedness (other than indebtedness for borrowed money) incurred in the ordinary course of business to pay for alterations or modifications of a Collateral Vessel to comply with regulatory requirements, accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person.
“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” shall have the meaning assigned to such term in Section 11.03(b).
“Information” shall have the meaning assigned to such term in Section 11.12.
“Initial Borrowing Date” shall mean the date on which the conditions set forth in Section 4.01 shall have been satisfied, waived or deferred by the Facility Agent and the drawing of the Initial Term Loans occurs; provided that, the Initial Borrowing Date shall not occur later than July 10, 2026.
“Initial Lenders” shall mean Deutsche Bank AG, Deutsche Bank AG, New York Branch, and ING Capital LLC.
“Initial Term Loans” shall mean, collectively, the Tranche 1 Loans, Tranche 2 Loans, Tranche 3 Loans, Tranche 4 Loans, Tranche 5 Loans, Tranche 6 Loans and Tranche 7 Loans made on the Initial Borrowing Date pursuant to Section 2.01(a)(i).
“Initial Term Commitments” shall mean, collectively, the Tranche 1 Commitments, Tranche 2 Commitments, Tranche 3 Commitments, Tranche 4 Commitments, Tranche 5 Commitments, Tranche 6 Commitments and Tranche 7 Commitments.
“Insolvency Proceeding” shall mean (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, reconstruction, insolvency, liquidation, provisional liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under any Debtor Relief Laws.
“Insurance Collateral” shall mean, with respect to a Collateral Vessel, (a) all insurances required pursuant to Section 5.04 in respect of such Collateral Vessel, whether now or hereafter to be effected, and all renewals of or replacements for the same, (ii) all claims, returns of premium and other moneys and claims for moneys due and to become due under said insurance or in respect of said insurance, (iii) all other rights of the relevant Vessel Owner Guarantor, Charterer, Commercial Manager and/or Technical Manager under or in respect of said insurance and (iv) any proceeds of any of the foregoing.
“Insurance Deliverables Requirement” shall mean, in relation to each Collateral Vessel, with respect to (i) marine, hull and machinery insurance and increased value insurance, (ii) marine protection and indemnity insurance (including (A) insurance for liability arising out of pollution and spillage or leakage of cargo and (B) cargo liability insurance), (iii) war risks insurance and increased value insurance, (iv) such other marine insurance that has been reasonably requested by the Facility Agent with the written consent of the Borrower (not to be unreasonably withheld or delayed), in each case, that is required to be maintained in accordance with the terms of this Agreement, the Borrower shall have delivered to, or cause to be delivered, a letter of undertaking from a marine insurance broker attaching cover notes and certificates of entry evidencing such insurance, together with notices of assignment and loss payee clauses, and letters of undertaking issued by the protection and indemnity association, each of which shall be reasonably satisfactory to the Facility Agent.
“Intercompany Note” shall mean a promissory note (which may be a global intercompany note) in form and substance reasonably satisfactory to the Facility Agent.
“Intercompany Subordination Agreement” shall mean an intercompany subordination agreement substantially in the form of Exhibit D.
“Interest Period” shall mean, with respect to any Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (or such other periods, elected by the Borrower, as agreed by all Lenders); provided that, (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period, and (c) with respect to Borrowings of Loans, the initial Interest Period with respect to such Loans shall commence on the date of such Borrowing and end on the first applicable Payment Date occurring thereafter. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent continuation of such Borrowing.
“Interest Rate Hedge Agreements” shall have the meaning assigned to such term in Section 5.15.
“Investments” shall have the meaning assigned to such term in Section 6.04. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment or any write-offs or write-downs thereof.
“IRS” shall mean the United States Internal Revenue Service.
“ISM Code” shall mean the International Safety Management Code for the Safe Operation of Ships and for Pollution Prevention, adopted by the International Maritime Organization.
“ISPS Code” shall mean the International Code for the Security of Ships and Port Facilities adopted by the International Maritime Organization.
“Judgment Currency” shall have the meaning assigned to such term in Section 11.21(a).
“Judgment Currency Conversion Date” shall have the meaning assigned to such term in Section 11.21(a).
“Legal Requirements” shall mean, as to any Person, any treaty, convention, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction, policies and procedures, Order or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Lenders” shall mean (a) the financial institutions and other Persons party hereto as “Lenders” on the date hereof, and (b) each financial institution or other Person that becomes a party hereto pursuant to an Assignment and Acceptance, other than, in each case, any such financial institution or Person that has ceased to be a party hereto pursuant to an Assignment and Acceptance.
“Lien” shall mean, with respect to any property, (a) any preferred ship mortgage, maritime lien, mortgage, deed of trust, lien (statutory or other), judgment lien, pledge, encumbrance, charge, assignment, hypothecation, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, and any agreement to give any of the foregoing, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effects as any of the foregoing) relating to such property and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Loans” shall mean the Initial Term Loans, the Tranche 8 Loans and/or the Tranche 9 Loans, as the context may require.
“Loan Documents” shall mean this Agreement, the Notes, if any, the Intercompany Subordination Agreement, each Intercompany Note, the Security Documents, the Fee Letter, the Agency Fee Letter and all other documents, certificates, instruments or agreements executed by or on behalf of a Loan Party for the benefit of any Agent or any Lender in connection herewith on or after the date hereof and, except for purposes of Section 11.02(b), the Agency Fee Letter. Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Loan Parties” shall mean the Borrower and the Vessel Owner Guarantors and “Loan Party” shall mean any of them.
“LTV Ratio” shall mean the ratio of (a) the outstanding principal amount of the Term Facility to (b) the aggregate Fair Market Value of all Collateral Vessels (with each Vessel Appraisal used to
determine the Fair Market Value to be dated no earlier than thirty (30) days prior to the applicable testing date).
“Manager’s Undertaking” shall mean an undertaking substantially in the form of Exhibit N (as modified, supplemented or amended from time to time) executed and delivered by each Commercial Manager (unless such Commercial Manager is the Charterer) and Technical Manager, in each case in favor of the Security Trustee, which shall include an assignment of all of such Commercial Manager’s (unless such Commercial Manager is the Charterer) and Technical Manager’s present and future Insurance Collateral.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“MARPOL” shall mean the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978, as the same may be amended or supplemented from time to time.
“Material Adverse Effect” shall mean (a) a material adverse effect on, or a material adverse change in, the condition (financial or otherwise), results of operations, business, properties, assets or liabilities (contingent or otherwise) of the Loan Parties, taken as a whole (including, for the avoidance of doubt, as a result of any event, change, effect, circumstance, condition, development or occurrence relating to Borrower that is a material adverse effect on, or a material adverse change in, the condition (financial or otherwise), results of operations, business, properties, assets or liabilities (contingent or otherwise) of the Loan Parties, taken as a whole), (b) an impairment of the ability of the Loan Parties to fully and timely perform any of their payment or other material obligations under any Loan Document, (c) a material impairment of the rights of or benefits or remedies available to the Lenders or any Agent under any Loan Document, or (d) a material adverse effect on the Collateral or any material portion thereof or on the Liens in favor of the Security Trustee (for its benefit and for the benefit of the other Secured Parties) on the Collateral or the validity, enforceability, perfection or priority of such Liens.
“Material Non-Public Information” shall mean information and documentation that is (i) not publicly available and (ii) material with respect to Pledgor, the Borrower and its Subsidiaries or any of their respective securities for purposes of foreign, United States Federal and state securities laws.
“Maturity Date” shall mean June 26, 2032.
“Maximum Rate” shall have the meaning assigned to such term in Section 11.13.
“Monthly Date” shall mean the last Business Day of each calendar month.
“Moody’s” shall mean Moody’s Investors Service, Inc. and its successors.
“Multiemployer Plan” shall mean an employee benefit plan of the type described in Section 4001(a)(3) or Section 3(37) of ERISA and subject to Title IV of ERISA to which any Company or any of its ERISA Affiliates is making or obligated to make contributions or during the preceding five plan years, has made or been obligated to make contributions.
“Net Cash Proceeds” shall mean: (a) with respect to any Asset Sale (other than any issuance or sale of Equity Interests by the issuer thereof), the proceeds thereof in the form of cash received by any Loan Party (including cash proceeds subsequently received (as and when received by any Loan Party) in respect of non-cash consideration initially received) net of (i) reasonable and customary selling expenses (including reasonable brokers’ fees or commissions, legal, accounting and other professional and transactional fees and transfer and similar taxes and the Borrower’s good faith estimate of income taxes
paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements)), and (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Loan Party associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds); (b) with respect to any Asset Sale in relation to the issuance or sale of Equity Interests by any Vessel Owner Guarantor, the cash proceeds thereof received by any Loan Party, net of reasonable and customary fees, commissions, costs and other expenses incurred in connection therewith; and (c) with respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received by any Loan Party in respect thereof, net of all reasonable costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.
“Non-U.S. Plan” shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Company with respect to employees, officers or directors employed, or otherwise engaged, outside the United States.
“Notes” shall mean any notes evidencing the Loans issued pursuant to Section 2.04(e), if any, substantially in the form of Exhibit F.
“Obligation Currency” shall have the meaning assigned to such term in Section 11.21.
“Obligations” shall mean (a) all obligations of the Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations, including fees (including the fees provided for in the Agency Fee Letter), costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding), of the Borrower and the other Loan Parties under this Agreement and the other Loan Documents and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Borrower and the other Loan Parties under or pursuant to this Agreement, the other Loan Documents and the Interest Rate Hedge Agreements, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising; provided that, in no circumstances shall Excluded Swap Obligations constitute Obligations.
“OFAC” shall mean the U.S. Department of the Treasury’s Office of Foreign Assets Control.
“Officer’s Certificate” shall mean, as to any Person, a certificate executed by any Responsible Officer.
“Operating Expense Reserve Account” shall mean an account of the Borrower established with the Account Bank and designated as the “Operating Expense Reserve Account” in writing by the Borrower to the Facility Agent and the Security Trustee.
“Operating Expense Reserve Required Balance” shall mean (a) from the Closing Date until the Relevant Earlier Date, $[***], (b) from the Relevant Earlier Date until the Relevant Later Date, $[***] and (c) from and after the Relevant Later Date, $[***]; provided that, the applicable amount set forth in
the foregoing clauses (a), (b) or (c), as applicable, shall be reduced by $[***] for each Tranche that has been repaid in full on or prior to such date of determination.
“Operating Expenses” shall mean (a) (i) the actual cash costs and expenses incurred in connection with the ownership, operation and maintenance of the Collateral Vessels, including fees and expenses of, and other amounts owing to, the Security Trustee or any other Agent, (ii) payments under any parts agreement, payments for spare parts, consumables, equipment, materials, utilities, repair and routine maintenance services, dry-docking, special survey and classification-related costs, and replacement costs of assets and properties, (iii) technical and commercial management fees payable to any Technical Manager or Commercial Manager, (b) all Taxes imposed on and payable by the Borrower (other than any Taxes imposed on or measured by income or receipts), (c) insurance costs payable during such period, including insurance premiums and protection and indemnity club calls (including advance calls, supplementary calls and release calls), (d) legal, accounting and other professional fees attendant to any of the foregoing items payable during such period, (e) payments not to exceed $5,000,000 in any calendar year in respect of Indebtedness permitted under Section 6.01 that is incurred in the ordinary course of business, (f) payments of any salaries and benefits of employees and crew, and (g) all other costs and expenses in connection with the management, administration, maintenance, operation, refurbishment, preservation, renovation or restoration of the Collateral Vessels (and any related infrastructure); provided that, all of the foregoing costs and expenses shall those that are solely incurred by the Borrower or Vessel Owner Guarantors and be determined on a cash basis and shall not include depreciation, amortization and other non-cash items and or other bookkeeping entries of a similar nature.
“Order” shall mean any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.
“Organizational Documents” shall mean, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation, articles of incorporation or deed of incorporation and by-laws (or similar documents) of such Person, (ii) in the case of any exempted company, the certificate of incorporation, memorandum of association and bye-laws of such Person, (iii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constituent documents) of such Person, (iv) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constituent documents) of such Person (and, where applicable, the equityholders or shareholders registry of such Person), (v) in the case of any general partnership, the partnership agreement (or similar constituent document) of such Person, (vi) in any other case, the functional equivalent of the foregoing, and (vii) any shareholder, voting trust or similar agreement between or among any holders of Equity Interests of such Person.
“Original Obligations” shall have the meaning assigned to such term in Section 11.20(a).
“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction (including any subdivision or taxing authority thereof) imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” shall mean any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other
Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).
“Parallel Debt” shall have the meaning assigned to such term in Section 11.20(a).
“Participant” shall have the meaning assigned to such term in Section 11.04(e).
“Participant Register” shall have the meaning assigned to such term in Section 11.04(e).
“Patriot Act” shall have the meaning assigned to such term in Section 3.20(a).
“Payment Date” shall mean the last Business Day of each calendar quarter, commencing with the calendar quarter ending September 30, 2026; provided that, Payment Dates in respect of interest shall also include the last day of each Interest Period.
“Pension Plan” shall mean any Employee Benefit Plan subject to the provisions of Title IV of ERISA or Section 412 or 430 of the Code or Section 302 or 303 of ERISA.
“Pensions Regulator” shall mean the body corporate called the Pensions Regulator established under Part 1 of the U.K. Pensions Act 2004.
“Periodic Term SOFR Determination Day” shall have the meaning specified in the definition of “Term SOFR”.
“Permitted Charter” shall mean (a) each Charter, (b) any time charter or voyage charter of a Collateral Vessel having a duration (including any optional extensions) of thirteen (13) months or less, entered into on arm’s-length commercial terms in the ordinary course of business, or (c) with the consent of the Facility Agent (acting on the instructions of the Required Lenders, such consent not to be unreasonably withheld, conditioned or delayed) any time charter or voyage charter with a duration (including any optional extension periods exercisable by the charterer) exceeding thirteen (13) months.
“Permitted Liens” shall have the meaning assigned to such term in Section 6.02.
“Permitted Maritime Liens” shall mean, in relation to any Collateral Vessel, each of the following Liens arising by operation of maritime law or in the ordinary course of the ownership, operation and trading of such Collateral Vessel: (a) any ship repairer’s or outfitter’s possessory lien in respect of such Collateral Vessel, provided that, the relevant Vessel Owner Guarantor is using commercially reasonable efforts to procure the release of such Collateral Vessel from such lien; (b) any lien on such Collateral Vessel for master’s, officers’ or crew’s wages outstanding in accordance with usual maritime practice, provided that, the amounts giving rise to such liens are not more than sixty (60) days overdue; (c) any lien on such Collateral Vessel for master’s disbursements incurred in the ordinary course of trading, provided that, the amounts giving rise to such liens are not more than sixty (60) days overdue; (d) any lien on such Collateral Vessel for salvage (including contract salvage and general average); (e) any lien on such Collateral Vessel in favor of suppliers of necessaries (including bunkers, lubricants, provisions, water, stores and spare parts) or other similar liens arising in the ordinary course of its trading (including liens incurred in connection with regular dry-docking), accrued for not more than sixty (60) days (unless any such lien is being contested in good faith by appropriate proceedings and the relevant Vessel Owner Guarantor shall have set aside on its books adequate reserves in accordance with GAAP with respect to such lien and so long as such deferment in payment shall not subject such Collateral Vessel to forfeiture or loss); (f) any lien on such Collateral Vessel for loss, damage or expense which is fully covered (in excess of applicable deductibles) by the Required Insurance; (g) any lien on such Collateral Vessel for loss, damage or expense which is not fully covered by the Required Insurance
in an aggregate amount not to exceed $5,000,000 per Collateral Vessel in respect of which a bond or other security has been posted by or on behalf of the relevant Vessel Owner Guarantor with the relevant court or tribunal having jurisdiction and the relevant Vessel Owner Guarantor is contesting such claim in good faith by appropriate proceedings; and (h) any lien on such Collateral Vessel for tolls, dues, taxes or other charges in respect of such Collateral Vessel that are not yet due and payable or that are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP; provided that, in no event shall the aggregate amount of all Permitted Maritime Liens (other than those described in clauses (b), (d) and (f) above) on any single Collateral Vessel exceed $5,000,000 or $45,000,000 in the aggregate for all Collateral Vessels. For the avoidance of doubt, any Permitted Maritime Lien that is being contested in good faith in accordance with this definition shall not constitute a breach of any covenant under this Agreement or trigger an Event of Default under Section 8.01(k), and the existence of any Permitted Maritime Lien shall not be deemed to impair the validity, enforceability or priority of any Vessel Mortgage.
“Person” shall mean any natural person, corporation, business trust, joint venture, trust, association, company (whether limited in liability or otherwise), exempted company, partnership (whether limited in liability or otherwise) or Governmental Authority, or any other entity, in any case, whether acting in a personal, fiduciary or other capacity.
“Platform” shall mean IntraLinks, SyndTrak, DebtDomain or a substantially similar electronic transmission system.
“Pledge Agreement” shall mean that certain Pledge Agreement, dated as of the date hereof, by and between the Pledgor and the Security Trustee.
“Pledge Agreement Collateral” shall mean all property from time to time pledged or granted as collateral pursuant to the Pledge Agreement.
“Pledge and Security Agreement” shall mean that certain Pledge and Security Agreement dated as of the date hereof by and between the Borrower and the Security Trustee.
“Pledged Charter” shall mean, with respect to any Vessel, (a) its Charter, or (b) any other charter or sub-charter with an indicated duration (including any optional extensions) exceeding thirteen (13) months.
“Pledgor” shall have the meaning assigned to such term in the preamble hereto.
“Poseidon Principles” shall mean the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published on June 18, 2019, available at http://www.poseidonprinciples.org, as the same may be amended or replaced, including but not limited to, to reflect changes in applicable law or regulation or the introduction of or changes to mandatory requirements of the International Maritime Organization from time to time.
“Prime Rate” shall mean the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Facility Agent) or any similar release by the Federal Reserve Board (as determined by the Facility Agent). Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.
“Pro Forma Basis” shall mean in connection with any calculation of compliance with any financial covenant, financial test or financial term hereunder, the calculation thereof after giving effect on a pro forma basis to (x) the incurrence of any Indebtedness (other than revolving Indebtedness, except to the extent the same is incurred to refinance other outstanding Indebtedness, to finance an Investment or to finance a Dividend or Restricted Debt Payment) after the first day of the relevant Test Period, as if such Indebtedness had been incurred (and the proceeds thereof applied) on the first day of such Test Period, (y) the permanent repayment of any Indebtedness (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) after the first day of the relevant Test Period, as if such Indebtedness had been retired or repaid on the first day of such Test Period, and (z) any Investment then being consummated as well as any other Investment if consummated after the first day of the relevant Test Period and on or prior to the date of the Investment then being effected, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except to the extent that the same is incurred to refinance other outstanding Indebtedness, to finance Investments or to finance a Dividend or Restricted Debt Payment) incurred or issued after the first day of the relevant Test Period (whether incurred to finance an Investment, to pay a Dividend to refinance Indebtedness or otherwise) shall be deemed to have been incurred or issued (and the proceeds thereof applied) on the first day of such Test Period and remain outstanding through the date of determination and (y) (other than revolving Indebtedness, except to the extent accompanied by a corresponding permanent commitment reduction) permanently retired or redeemed after the first day of the relevant Test Period shall be deemed to have been retired or redeemed on the first day of such Test Period and remain retired through the date of determination; and
(ii) all Indebtedness assumed to be outstanding pursuant to preceding clause (i) shall be deemed to have borne interest at (x) the rate applicable thereto, in the case of fixed rate indebtedness, or (y) the rates which would have been applicable thereto during the respective period when same was deemed outstanding, in the case of floating rate Indebtedness (although interest expense with respect to any Indebtedness for periods while same was actually outstanding during the respective period shall be calculated using the actual rates applicable thereto while same was actually outstanding).
“Process Agent” shall have the meaning assigned to such term in Section 11.09(d).
“Projections” shall have the meaning assigned to such term in Section 3.04(c).
“property” shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any Person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, Vessels, cash, securities, accounts, revenues and contract rights.
“PTE” shall mean a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Lenders” shall mean Lenders that do not wish to receive Material Non-Public Information with respect to the Pledgor, the Borrower or its Subsidiaries.
“Qualified Capital Stock” of any Person shall mean any Equity Interests of such Person that do not constitute Disqualified Capital Stock.
“Qualified ECP Guarantor” shall mean, in respect of any Swap Obligation, each Vessel Owner Guarantor that has total assets exceeding $10,000,000 at the time the relevant Guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Real Property” shall mean, collectively, all right, title and interest (including any leasehold, fee, mineral or other estate) in and to any and all parcels of or interests in real property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof.
“Recipient” shall mean the Facility Agent, Security Trustee or any Lender, as applicable.
“Relevant Earlier Date” shall mean the earlier of the Tranche 8 Borrowing Date and the Tranche 9 Borrowing Date.
“Relevant Governmental Body” shall mean the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Relevant Later Date” shall mean the later of the Tranche 8 Borrowing Date and the Tranche 9 Borrowing Date.
“Register” shall have the meaning assigned to such term in Section 11.04(c).
“Regulation D” shall mean Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Person” shall mean, with respect to any Person, (a) each Affiliate of such Person and each of the officers, directors, employees, Advisors, attorneys, agents, representatives, controlling Persons and shareholders, partners, members and trustees of each of the foregoing, and (b) if such Person is an Agent, each other Person designated, nominated or otherwise mandated by or assisting such Agent pursuant to Section 10.05 or any comparable provision of any Loan Document.
“Release” shall mean any releasing, spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto, from or through the Environment.
“Required Insurance” shall mean insurance of the type, deductibles and amounts as set forth on Schedule 5.04.
“Required Lenders” shall mean, at any date of determination, Lenders having Loans and unused Commitments representing more than 50% of the sum of all outstanding Loans and unused Commitments at such time.
“Requisition” shall mean: (a) any expropriation, confiscation, requisition or acquisition of a Vessel, 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 one year without any right to an extension) unless it is within 30 days redelivered to the full control of the Vessel Owner Guarantor being the owner thereof or the Charterer being the bareboat charterer thereof; and (b) any arrest, capture or seizure of a Vessel (including any hijacking or theft) unless it is within 60 days redelivered to the full control of the Vessel Owner Guarantor being the owner thereof or the Charterer being the bareboat charterer thereof.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” shall mean the chief executive officer, president, vice president, chief financial officer, chief legal officer, secretary, treasurer or assistant treasurer, any director or any other authorized officer or manager of the Borrower or any Vessel Owner Guarantor and, as to any document delivered on the Closing Date or any document similar to any such document, any secretary or assistant secretary or other authorized director, officer or manager of the Borrower or any Vessel Owner Guarantor and any director, officer or employee of the Borrower or any Vessel Owner Guarantor where the signature is included on an incumbency certificate or similar certificate reasonably satisfactory to the Facility Agent. Any document delivered hereunder that is signed by a Responsible Officer of the Borrower or any Vessel Owner Guarantor shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower or such Vessel Owner Guarantor and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower or such Vessel Owner Guarantor.
“Restricted Debt Payment” shall mean any payment, prepayment, purchase, repurchase, redemption, retirement, defeasance or other acquisition for value of any Restricted Indebtedness.
“Restricted Indebtedness” shall mean Indebtedness of any Company, the payment, prepayment, repurchase, defeasance or acquisition for value of which is restricted under Section 6.11.
“S&P” shall mean S&P Global Ratings and any successor thereto.
“Sale and Leaseback Transaction” shall mean any arrangement of any Person, directly or indirectly, with any other Person whereby such initial Person shall sell or transfer any property used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property which it intends to use for substantially the same purpose or purposes as the property being sold or transferred.
“Sanctions” shall mean any trade, economic or financial sanctions laws, regulations, embargoes, freezing provisions, prohibitions or other restrictive measures imposed, administered or enforced from time to time by any Sanctions Authority.
“Sanctions Authority” shall mean the respective governmental institutions and agencies of the United States, the European Union (and its Member States), the United Kingdom, and the United Nations, including OFAC, the U.S. State Department, the United Nations Security Council, the European Union (and its Member States) and His Majesty’s Treasury of the United Kingdom, and any other public authority or Governmental Authority with jurisdiction over any Company.
“Sanctioned Jurisdiction” shall have the meaning assigned to such term in Section 3.20(b).
“Sanctioned Person” shall have the meaning assigned to such term in Section 3.20(b).
“Sanctioned Ship” shall mean a vessel which is the target of Sanctions, including by virtue of being designated, listed or otherwise identified under any Sanctions list maintained by any Sanctions Authority.
“Scheduled Amortization Payment Amount” shall mean for any Payment Date, the corresponding amount for such date set forth on Schedule 2.09(a), as adjusted pursuant to Section 2.09, and as such amount may be reduced from time to time pursuant to Section 2.07 or Section 2.10.
“SEC” shall mean the United States Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions thereof.
“Secured Obligations” shall mean (a) the Obligations and (b) the due and punctual payment and performance of all Bank Product Obligations of the Borrower; provided that, in no circumstances shall Excluded Swap Obligations constitute Secured Obligations.
“Secured Parties” shall mean, collectively, (a) the Facility Agent, (b) the Security Trustee, (c) the Lenders and (d) each Bank Product Provider.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Securities Collateral” shall mean “Collateral” (as defined in the Pledge Agreement).
“Security Documents” shall mean the Pledge Agreement, the Pledge and Security Agreement, the Share Charge, each Vessel Mortgage, the Account Control Agreement, each General Assignment Agreement, each Charterer Assignment, each Manager’s Undertaking and each other security document or pledge agreement delivered in accordance with applicable local Legal Requirements to grant a valid, enforceable, perfected security interest (with the priority required under the Loan Documents) in any property as collateral for the Secured Obligations, and all UCC or other financing statements or instruments of perfection required by this Agreement, the Pledge Agreement, any Vessel Mortgage, any Account Control Agreement, any General Assignment Agreement, any Manager’s Undertaking or any other such security document or pledge agreement to be filed or registered with respect to the security interests in property created pursuant to the Pledge Agreement, any Vessel Mortgage, any Account Control Agreement, any General Assignment Agreement, any Charterer Assignment, any Manager’s Undertaking and any other document or instrument utilized to pledge any property as collateral for the Secured Obligations.
“Security Trustee” shall have the meaning assigned to such term in the preamble hereto.
“Security Trustee Fees” shall have the meaning assigned to such term in Section 2.05(b)(ii).
“Share Charge” shall mean that certain Charge over Shares dated as of the date hereof by and between the Borrower and the Security Trustee.
“SOFR” shall mean a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” shall mean, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” shall mean a Loan that bears interest at a rate based on SOFR.
“Solvent” shall mean, with respect to any Person, that, as of the date of determination, (a) the fair value of the properties of such Person will exceed its debts and liabilities, subordinated, contingent or otherwise, (b) the present fair saleable value of the property of such Person will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such Person generally will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (d) such Person will not have unreasonably small capital with which to conduct its business in which it is engaged as such business is now conducted and is proposed, contemplated or about to be conducted following the Closing Date, and (e) such Person is not “insolvent” as such term is defined under any bankruptcy, insolvency or similar laws of any jurisdiction in which any Person is organized. For the purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time represents the amount that can be reasonably expected to become an actual or matured liability.
“Sponsor” shall mean Venture Global LNG, Inc., a Delaware corporation.
“Statement of Compliance” shall mean a Statement of Compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
“Subordinated Indebtedness” shall mean unsecured Indebtedness of the Borrower or any of its Subsidiaries that is by its terms subordinated (on terms reasonably satisfactory to the Facility Agent) in right of payment to all or any portion of the Obligations.
“Subsidiary” shall mean, with respect to any Person (the “parent”) at any date, (i) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, exempted company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the board of directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of the Borrower.
“Swap Obligation” shall mean, with respect to the Borrower and any Vessel Owner Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Synthetic Lease” shall mean, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any property (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor or (b)(i) a synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of property (including a Sale and Leaseback Transaction), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any
Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Tax Returns” shall mean all returns, statements, filings, attachments and other documents or certifications filed or required to be filed in respect of Taxes.
“Taxes” shall mean any and all present or future taxes, duties, levies, imposts, assessments, fees, deductions, withholdings (including backup withholding) or other similar charges, imposed by any Governmental Authority, including any interest or additions to tax or penalties applicable thereto.
“Technical Manager” shall mean (i) Venture Global Ship Management Ltd., (ii) an Acceptable Third Party Technical Manager or (iii) one or more other technical managers (including a Subsidiary of the Borrower) selected by the Borrower and reasonably acceptable to the Facility Agent (acting on instructions from the Required Lenders).
“Term Facility” shall mean, at any time and with respect to any Lender, such Lender’s respective Commitments and the extensions of credit thereunder at such time.
“Term SOFR” shall mean the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided that, if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day.
“Term SOFR Administrator” shall mean CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Facility Agent in its reasonable discretion).
“Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.
“Test Date” shall mean March 31, June 30, September 30, and December 31 in each year, with the first Test Date being December 31, 2026.
“Test Period” shall mean each period for which financial statements of Borrower have been delivered pursuant to Section 5.01(a) or (b), as the case may be.
“Total Commitments” shall mean the aggregate principal amount of all Commitments, which as of the Closing Date is in the aggregate amount of $1,500,000,000.
“Total Loss” shall mean: (a) actual, constructive, compromised, agreed or arranged total loss of a Vessel; or (b) any Requisition of a Collateral Vessel.
“Total Loss Date” shall mean, in relation to the Total Loss of a Vessel: (a) in the case of an actual loss of a Vessel, the date on which it occurred or, if that is unknown, the date when that Vessel was last heard of; (b) in the case of a constructive, compromised, agreed or arranged total loss of a Vessel, the earlier 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 and/or the Vessel Owner Guarantor who owns such Vessel with the Vessel’s insurers in which the insurers agree to treat that Vessel as a total loss; and (c) in the case of any other type of Total Loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred.
“Tranche” shall mean (a) when used in reference to Loans, any or all (as the context may require) of the Tranche 1 Loans, the Tranche 2 Loans, the Tranche 3 Loans, the Tranche 4 Loans, the Tranche 5 Loans, the Tranche 6 Loans, the Tranche 7 Loans, the Tranche 8 Loans and/or the Tranche 9 Loans, and (b) when used in reference to Commitments, any or all (as the context may require) of the Tranche 1 Commitments, the Tranche 2 Commitments, the Tranche 3 Commitments, the Tranche 4 Commitments, the Tranche 5 Commitments, the Tranche 6 Commitments, the Tranche 7 Commitments, the Tranche 8 Commitments and/or the Tranche 9 Commitments.
“Tranche 1 Loans” shall mean a loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 1 Commitments.
“Tranche 1 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 1 Loan and “Tranche 1 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 1 Commitment is set forth on Annex I. The aggregate amount of the Tranche 1 Commitments as of the Closing Date is $154,752,893. The Tranche 1 Commitments are available in respect of the Collateral Vessel owned by Astra 5 Limited, an exempted company limited by shares incorporated under the laws of Bermuda.
“Tranche 2 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 2 Commitments.
“Tranche 2 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 2 Loan and “Tranche 2 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 2 Commitment is set forth on Annex I. The aggregate amount of the Tranche 2 Commitments as of the Closing Date is $154,752,893. The Tranche 2 Commitments are available in respect of the Collateral Vessel owned by Astra 8 Limited, an exempted company limited by shares incorporated under the laws of Bermuda.
“Tranche 3 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche Commitments.
“Tranche 3 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 3 Loan and “Tranche 3 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 3 Commitment is set forth on Annex I. The aggregate amount of the Tranche 3 Commitments as of the Closing Date is $161,565,913. The Tranche 3 Commitments are available in respect of the Collateral Vessel owned by Project Kagami 1 Limited, an exempted company limited by shares incorporated under the laws of Bermuda.
“Tranche 4 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 4 Commitments.
“Tranche 4 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 4 Loan and “Tranche 4 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 4 Commitment is set forth on Annex I. The aggregate amount of the Tranche 4 Commitments as of the Closing Date is $161,890,343. The Tranche 4 Commitments are available in respect of the Collateral Vessel owned by Project Kagami 2 Limited, an exempted company limited by shares incorporated under the laws of Bermuda.
“Tranche 5 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 5 Commitments.
“Tranche 5 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 5 Loan and “Tranche 5 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 5 Commitment is set forth on Annex I. The aggregate amount of the Tranche 5 Commitments as of the Closing Date is $172,434,303. The Tranche 5 Commitments are available in respect of the Collateral Vessel owned by Venture Global Shipping I, LLC, Delaware limited liability company.
“Tranche 6 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 6 Commitments.
“Tranche 6 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 6 Loan and “Tranche 6 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 6 Commitment is set forth on Annex I. The aggregate amount of the Tranche 6 Commitments as of the Closing Date is $172,758,733. The Tranche 6 Commitments are available in respect of the Collateral Vessel owned by Venture Global Shipping II, LLC, Delaware limited liability company.
“Tranche 7 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 7 Commitments.
“Tranche 7 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 7 Loan and “Tranche 7 Commitments” means such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 7 Commitment is set forth on Annex I. The aggregate amount of the Tranche 7 Commitments as of the Closing Date is $177,300,746. The Tranche 7 Commitments are available in respect of the Collateral Vessel owned by Venture Global Shipping III, LLC, Delaware limited liability company.
“Tranche 8 Borrowing Date” shall mean the date on which the conditions set forth in Section 4.02 shall have been satisfied or waived by the Facility Agent and the drawing of the Tranche 8 Loans occurs.
“Tranche 8 Loans” shall mean any loan made by a Lender to the Borrower pursuant to pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 8 Commitments.
“Tranche 8 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 8 Loan and “Tranche 8 Commitments” shall mean such commitments of all Lenders in the aggregate. The amount of each Lender’s Tranche 8 Commitment is set forth on Annex I. The aggregate amount of the Tranche 8 Commitments as of the Closing Date is $171,623,229. The Tranche 8 Commitments are available in respect of the Venture Manatee.
“Tranche 9 Borrowing Date” shall mean the date on which the conditions set forth in Section 4.03 shall have been satisfied or waived by the Facility Agent and the drawing of the Tranche 9 Loans occurs.
“Tranche 9 Loans” shall mean any loan made by a Lender to the Borrower pursuant to Section 2.02(a) in respect of, and in the amount of, the Tranche 9 Commitments.
“Tranche 9 Commitment” shall mean the commitment of a Lender to make or otherwise fund a Tranche 9 Loan and “Tranche 9 Commitments” means such commitments of all Lenders in the aggregate.
The amount of each Lender’s Tranche 9 Commitment is set forth on Annex I. The aggregate amount of the Tranche 9 Commitments as of the Closing Date is $172,920,947. The Tranche 9 Commitments are available in respect of the Venture Venice.
“Transactions” shall mean, collectively, (a) the execution, delivery and performance by the Loan Parties of this Agreement and the other Loan Documents to which they are a party and the initial Credit Extension hereunder on the Initial Borrowing Date and the use of the proceeds thereof, and (b) the payment of the fees and expenses related to the foregoing.
“Transferred Vessel Owning Guarantor” shall have the meaning assigned to such term in Section 7.09.
“Treasury Regulations” shall mean the regulations promulgated by the United States Department of the Treasury under the Code, as amended from time to time.
“Trust Property” shall mean (a) the security, powers, rights, titles, benefits and interests (both present and future) constituted by and conferred on the Security Trustee under or pursuant to the Vessel Mortgages (including the benefits of all covenants, undertakings, representations, warranties and obligations given, made or undertaken to the Security Trustee in the Vessel Mortgages), (b) all moneys, property and other assets paid or transferred to or vested in the Security Trustee, or any agent of the Security Trustee whether from any Loan Party or any other Person, and (c) all money, investments, property and other assets at any time representing or deriving from any of the foregoing, including all interest, income and other sums at any time received or receivable by the Security Trustee or any agent of the Security Trustee in respect of the same (or any part thereof).
“UCC” shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Pension Plan” shall mean the OSG Ship Management (UK) Ltd. Retirement Benefits Plan.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UKBA” shall mean the U.K. Bribery Act 2010.
“Unadjusted Benchmark Replacement” shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Undisclosed Administration” shall mean, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
“United States” and “U.S.” shall mean the United States of America.
“U.S. Government Securities Business Day” shall mean any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Tax Compliance Certificate” shall have the meaning specified in Section 2.15(f).
“Venture Manatee” shall mean the vessel currently under construction at Hanwha Ocean Co., Ltd. with Hull No.2574 and IMO No. 9997634, which is to be registered in the name of the Venture Manatee Owner under the Marshall Islands flag.
“Venture Manatee Charter” shall mean the bareboat charter to be entered into on or around the Tranche 8 Borrowing Date between the Venture Manatee Owner (as owner) and the Charterer (as bareboat charterer) in respect of the Venture Manatee.
“Venture Manatee Owner” shall mean Venture Global Shipping IV, LLC, a Delaware limited liability company.
“Venture Venice” shall mean the vessel currently under construction at Hanwha Ocean Co., Ltd. with Hull No. 2575 and IMO No. 9997658, which is to be registered in the name of the Venture Manatee Owner under the Marshall Islands flag.
“Venture Venice Charter” shall mean the bareboat charter to be entered into on or around the Tranche 9 Borrowing Date between the Venture Venice Owner (as owner) and the Charterer (as bareboat charterer) in respect of the Venture Venice.
“Venture Venice Owner” shall mean Venture Global Shipping V, LLC, a Delaware limited liability company.
“Vessel Appraisal” shall mean a written desktop appraisal of the fair market value of each Collateral Vessel delivered to the Facility Agent and the Security Trustee, in form, scope and methodology reasonably acceptable to the Security Trustee and prepared by an Approved Broker selected by the Borrower on the basis of a charter-free arm’s-length transaction between a willing and able buyer and seller not under duress, addressed to the Security Trustee and upon which the Facility Agent, the Security Trustee and the Lenders are expressly permitted to rely.
“Vessel Appraisal Value” of any Collateral Vessel at any time of determination shall mean (a) the average of Vessel Appraisals from two Approved Brokers selected by the Borrower most recently delivered to, or obtained by, the Facility Agent prior to such time in accordance with Section 6.10(a) or at such other time or times set forth in this Agreement (including Sections 4.02 and 4.03) or (b) to the extent the difference between the Vessel Appraisals obtained in accordance with the foregoing clause (a) exceeds 10%, the average of such Vessel Appraisals and a third Vessel Appraisal from an Approved Broker selected by the Required Lenders.
“Vessel Collateral Requirements” shall mean, with respect to a Collateral Vessel, the requirement that:
(a) the Vessel Owner Guarantor that owns such Collateral Vessel shall have duly authorized, executed and delivered, and caused to be recorded or registered in accordance with the laws of the applicable Acceptable Flag Jurisdiction in which such Collateral Vessel is registered, a Vessel Mortgage with respect to such Collateral Vessel and such Vessel Mortgage shall be effective to create in favor of the Security Trustee for the benefit of the Secured Parties a
legal, valid and enforceable first preferred ship mortgage or first priority statutory mortgage, as applicable, lien upon such Collateral Vessel, subject only to Permitted Liens related thereto;
(b) all filings, deliveries of instruments and other actions necessary or desirable in the reasonable opinion of the Security Trustee to perfect and preserve the security interests described in clause (a) above under the laws of the Acceptable Flag Jurisdiction in which such Collateral Vessel is registered and (if required) in the jurisdiction of organization of the entity that is the owner of such Collateral Vessel shall have been duly effected and the Security Trustee shall have received evidence thereof in form and substance reasonably satisfactory to it and such customary legal opinions reasonably satisfactory to it;
(c) the Facility Agent shall have received each of the following:
(i) certified copies of all technical management agreements and commercial management agreements, if any, and all pooling agreements and charter contracts having a remaining term in excess of six months related to such Collateral Vessel (including each Pledged Charter) and any charter contract guarantees (including each Charter Performance Guarantee) in connection therewith;
(ii) a confirmation of class certificate issued by an Approved Classification Society showing the Collateral Vessel to be free of overdue recommendations issued not more than ten (10) days prior to the Closing Date and certified copies of all ISM Code, ISPS Code, IHM and MARPOL documentation for such Collateral Vessel and its owner or manager, as appropriate, which shall be valid and unexpired;
(iii) a certificate of ownership and encumbrance or transcript of register confirming registration of such Collateral Vessel under the law and flag of the applicable Acceptable Flag Jurisdiction, the record owner of the Collateral Vessel and all Liens of record (which shall be only Permitted Liens) for such Collateral Vessel, such certificate to be issued within thirty (30) days prior to the Closing Date, and reasonably satisfactory to the Facility Agent;
(i) copies of the Document of Compliance issued to each Vessel Owner Guarantor and the relevant Technical Manager, and the Safety Management Certificate and International Ship Security Certificate issued in respect of each Collateral Vessel, each valid and unexpired;
(ii) a confirmation of entry letter from the protection and indemnity club in which each Collateral Vessel is entered, confirming such Collateral Vessel’s entry and that all calls and premiums are paid to date;
(iv) a report, addressed to and in form and scope reasonably acceptable to the Facility Agent, from a firm of marine insurance brokers reasonably acceptable to the Facility Agent (including Bankserve, Marsh and Willis), confirming the particulars and placement of the marine insurances covering such Collateral Vessel and its compliance with the provisions hereunder, the endorsement of loss payable clauses and notices of assignment on the policies, the adequacy of such marine insurances and containing such other confirmations and undertakings as are customary in the New York market (including the Insurance Deliverables Requirement); and
(v) a customary letter of undertaking addressed to the Facility Agent, issued by each relevant marine insurance broker, the protection and indemnity club or war risks
association through or with whom any obligatory insurances are placed or effected for such Collateral Vessel;
(d) (i) each Vessel Owner Guarantor that owns such Collateral Vessel shall have duly authorized, executed and delivered a General Assignment Agreement substantially in the form of Exhibit M (as modified, supplemented or amended from time to time, each a “General Assignment Agreement”) assigning all of such Vessel Owner Guarantor’s present and future Earnings and Insurance Collateral and Charter Collateral;
(ii) the Charterer shall have duly executed and delivered to the Security Trustee a Charterer Assignment substantially in the form of Exhibit O (as modified, supplemented or amended from time to time, each a “Charterer Assignment”) assigning all of the Charterer’s Collateral relating to such Collateral Vessel;
(iii) each Commercial Manager (unless the Commercial Manager is the Charterer) and Technical Manager shall have duly authorized, executed and delivered a Manager’s Undertaking, and
(iv) each such Vessel Owner Guarantor, Charterer, Commercial Manager or Technical Manager, as applicable, shall either, cause to be delivered, or use commercially reasonable efforts to provide, in each case in accordance with the terms of the relevant General Assignment, Charterer Assignment or Manager’s Undertaking, appropriate notices and consents related thereto, together granting a security interest and lien on (i) all of such Vessel Owner Guarantor’s present and future Earnings and Insurance Collateral and Charter Collateral, (ii) all of the Charterer’s Collateral and (iii) all of such Commercial Manager’s and Technical Manager’s Insurance Collateral, together with proper Financing Statements (Form UCC-1) in form for filing under the UCC or in other appropriate filing offices of each jurisdiction as may be necessary to perfect the security interests purported to be created by each General Assignment Agreement, Charterer Assignment and Manager’s Undertaking, as applicable.
“Vessel Mortgage” shall mean any of (i) a first preferred Marshall Islands ship mortgage substantially in the form of Exhibit L-1, and (ii) a first preferred Liberian ship mortgage substantially in the form of Exhibit L-2.
“Vessel Owner Guarantor” shall mean each of (a) Venture Global Shipping I, LLC, a Delaware limited liability company, (b) Venture Global Shipping II, LLC, a Delaware limited liability company, (c) Venture Global Shipping III, LLC, a Delaware limited liability company, (d) Project Kagami 1 Limited, an exempted company limited by shares incorporated under the laws of Bermuda, (e) Project Kagami 2 Limited, an exempted company limited by shares incorporated under the laws of Bermuda, (f) Astra 5 Limited, an exempted company limited by shares incorporated under the laws of Bermuda, (g) Astra 8 Limited, an exempted company limited by shares incorporated under the laws of Bermuda, (h) the Venture Manatee Owner and (i) the Venture Venice Owner.
“Vessels” shall mean all Collateral Vessels owned by the Vessel Owner Guarantors, and “Vessel” shall mean any one of them.
“Withholding Agent” shall mean any Loan Party and the Facility Agent.
“Wholly Owned Subsidiary” shall mean, as to any Person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares and other nominal shares required to be held by local nationals, in each case, to the extent required under applicable Legal Requirements) is at the time owned
by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a 100% Equity Interest (other than directors’ qualifying share and other nominal shares required to be held by local nationals, in each case, to the extent required under applicable Legal Requirements) at such time. Unless the context requires otherwise, “Wholly Owned Subsidiary” refers to a Wholly Owned Subsidiary of the Borrower.
“Write-Down and Conversion Powers” shall mean,
(a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule; and
(b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution 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.
Section 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Tranche 1 Loan”, a “Tranche 2 Loan”, etc.).
Section 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The phrase “Material Adverse Effect” shall be deemed to be followed by the phrase “, individually or in the aggregate.” The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. The word “will” shall be construed to have the same meaning and effect as the word “shall.” The word “or” is not exclusive. The word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) otherwise, to a year of three hundred sixty-five (365) days. Unless the context requires otherwise, (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such Loan Document, agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented and/or otherwise modified (subject to any restrictions on such amendments, restatements, amendments and restatements, supplements and/or modifications set forth in any Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits, exhibits, Schedules and schedules shall be construed to refer to Articles and Sections of, and Exhibits, exhibits, Schedules and schedules to, this Agreement, unless otherwise indicated and (e) any reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing or interpreting or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time. This Section 1.03 shall apply, mutatis mutandis, to all Loan Documents.
Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with, and all terms of an accounting or financial nature shall be construed and interpreted in accordance with, GAAP as in effect from time to time. If at any time any change in GAAP would affect the computation of any financial ratio or the Financial Covenants set forth in any Loan Document, and the Borrower, the Required Lenders or the Facility Agent shall so request, the Facility Agent and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Required Lenders and the Borrower); provided that, until so amended, such ratio, Financial Covenants or requirement shall continue to be computed in accordance with GAAP prior to such change therein, and the Borrower shall provide to the Facility Agent and the Lenders within five days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of a Responsible Officer of the Borrower setting forth in reasonable detail the differences that would have resulted if such financial statements had been prepared as if such change had been implemented.
Section 1.05 Resolution of Drafting Ambiguities. Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of this Agreement and the other Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.
Section 1.06 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.07 Currency Equivalents Generally.
(a) Any amount specified in this Agreement (other than as set forth in clause (b) of this Section 1.07) or any of the other Loan Documents to be in Dollars shall also include the equivalent of such amount in any currency other than Dollars, such equivalent amount to be determined at the applicable exchange rate; provided that, if any basket amount expressed in Dollars is exceeded solely as a result of fluctuations in applicable currency exchange rates after the last time such basket was utilized, such basket will not be deemed to have been exceeded solely as a result of such fluctuations in currency exchange rates.
(b) For the purposes of determining the Fair Market Value or calculating compliance with Section 6.10, amounts denominated in a currency other than Dollars will be converted to Dollars at the exchange rate as of the date of calculation, and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Swap Obligations permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the Dollar equivalent of such Indebtedness.
Section 1.08 Divisions. For all purposes under the Loan Documents, in connection with any division or plan or division under Delaware law (or any comparable event under a different jurisdiction’s law): (a) if any asset, right, obligation or liability on any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.
Section 1.09 Rates. The Facility Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to ABR, the Term SOFR Reference Rate or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, ABR, the Term SOFR Reference Rate, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. The Facility Agent and its affiliates or other related entities may engage in transactions that affect the calculation of ABR, the Term SOFR Reference Rate, Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Facility Agent may select information sources or services in its reasonable discretion to ascertain ABR, the Term SOFR Reference Rate, Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
Article II
THE CREDITS
Section 2.01 Commitments. (a) Subject to the terms and conditions and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly, to make the Initial Term Loans to the Borrower, each of which may be incurred pursuant to a single drawing on the Initial Borrowing Date, in the principal amount equal to such Lender’s respective Initial Term Loan Commitment, (ii) Tranche 8 Loans, which may be incurred pursuant to a single drawing on the Tranche 8 Borrowing Date, in a principal amount equal to such Lender’s Tranche 8 Commitment, and (iii) Tranche 9 Loans, which may be incurred pursuant to a single drawing on the Tranche 9 Borrowing Date, in a principal amount equal to such Lender’s Tranche 9 Commitment.
(b) Notwithstanding the foregoing, (i) in no event will the principal amount of the Total Commitments exceed the lesser of (A) 65% of the Vessel Appraisal Value of (x) the Collateral Vessels plus (y) Venture Manatee and Venture Venice, in each case, based on the Closing Date Appraisals (it being understood and agreed that Venture Manatee and Venture Venice shall not be included for determining the principal amount of the Initial Term Loans available on the Initial Borrowing Date), and (B) $1,500,000,000, (ii) in no event will the principal amount of the Tranche 8 Commitments on the Tranche 8 Borrowing Date exceed the 65% of the Vessel Appraisal Value of Venture Manatee (determined in accordance with the Vessel Appraisals delivered in accordance with Section 4.02), and (iii) in no event will the principal amount of the Tranche 9 Commitments on the Tranche 9 Borrowing Date exceed the 65% of the Vessel Appraisal Value of Venture Venice (determined in accordance with the Vessel Appraisals delivered in accordance with Section 4.03).
Section 2.02 Loans. (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided that, the failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to make any Loan required to be made by such other Lender). Any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $100,000 and not less than $1,000,000 or (ii) equal to the remaining available balance of the applicable Commitments.
(b) Each Lender may at its option make any Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that, any exercise of such option shall not affect the obligation of the Lender to make such Loan or the Borrower to repay such Loan in accordance with the terms of this Agreement; provided further that, the Borrower shall not be entitled to request any Borrowing that, if made, would result in more than ten (10) Borrowings in the aggregate outstanding hereunder at any one time (or such greater number of Borrowings as may be acceptable to the Facility Agent in its sole discretion). For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Facility Agent may designate from time to time not later than 10:00 a.m., New York City time, and the Facility Agent shall promptly credit or remit the amounts so received to an account in the United States as directed by the Borrower in the applicable Borrowing Request or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, promptly return the amounts so received to the respective Lenders.
(d) Unless the Facility Agent shall have received written notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the Facility Agent such Lender’s portion of such Borrowing, the Facility Agent may assume that such Lender has made such portion available to the Facility Agent on the date of such Borrowing in accordance with clause (c) above, and the Facility Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If the Facility Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Facility Agent, each of such Lender and the Borrower agrees to repay to the Facility Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Facility Agent (i) in the case of such Lender, at the greater of the Federal Funds Effective Rate and a rate determined by the Facility Agent in accordance with banking industry rules or practices on interbank compensation and (ii) in the case of the Borrower, the interest rate applicable to such Borrowing. If such Lender shall subsequently repay to the Facility Agent such corresponding amount, such amount shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement, and the Borrower’s obligation to repay the Facility Agent such corresponding amount pursuant to this Section 2.02(d) shall cease and any amounts previously so repaid by the Borrower shall be returned to the Borrower.
(e) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.
Section 2.03 Borrowing Procedure. To request a Borrowing, the Borrower shall deliver a written request (by email through a “pdf” copy (or other electronic transmission if arrangements for doing so have been approved in writing by the Facility Agent)), a duly completed and executed Borrowing Request to the Facility Agent not later than 1:00 pm, New York City time, on the third (or, in the case of any ABR Borrowing, the first) Business Day before the date of the proposed Borrowing; provided that, the initial Borrowings on the Closing Date shall only require delivery of a Borrowing Request to the Facility Agent not later than 1:00 pm, New York City time, the Business Day before such Borrowings.
Each Borrowing Request shall be irrevocable and shall specify the following information in compliance with Section 2.02:
(i) the aggregate principal amount of such Borrowing, which shall comply with the requirements of Section 2.02(a) and, in the case of the initial Borrowing, Section 2.01(b);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) the duration of the Interest Period with respect thereto;
(iv) the location and number of the respective Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(c); and
(v) that the conditions set forth in Section 4.04(b) and (c) are satisfied as of the date of the notice.
Promptly following receipt of a Borrowing Request in accordance with this Section 2.03, the Facility Agent shall advise each applicable Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
Section 2.04 Repayment of Loans. (a) The Borrower hereby unconditionally promises to pay to the Facility Agent for the account of each Lender, the principal amount of each Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.
(c) The Facility Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Class thereof, and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder, and (iii) the amount of any sum received by the Facility Agent hereunder for the account of the Lenders and each Lender’s share thereof.
(d) The entries made in the accounts maintained pursuant to clauses (b) and (c) above shall be prima facie evidence of the existence and amounts of the obligations therein recorded; provided that, the failure of any Lender or the Facility Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of the Borrower and the other Loan Parties to pay, and perform, the Obligations in accordance with the Loan Documents. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Facility Agent in respect of such entries, the accounts and records of the Facility Agent shall control in the absence of manifest error.
(e) Any Lender by written notice to the Borrower (with a copy to the Facility Agent) may request that Loans of any Class made by it be evidenced by a promissory note. In such event, the Borrower shall promptly execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) in the form of Exhibit F.
Section 2.05 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Facility Agent for the account of each Lender a commitment (a “Commitment Fee”) equal to a percentage per annum equal to 40% of the Applicable Margin with respect to SOFR Loans multiplied by the average daily unused amount of the Commitment of such Lender during the period from and including the date hereof to but excluding the date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears (i) on the last Business Day of March, June, September and December of each year, commencing on the first such date to occur after the date hereof, and (ii) on the date on which such Commitment terminates. Commitment Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing Commitment Fees, the Commitment of a Lender shall be deemed to be used to the extent of the outstanding Loans of such Lender.
(b) Facility Agent and Security Trustee Fees.
(i) The Borrower agrees to pay to the Facility Agent, for its own account, the fees payable to the Facility Agent set forth in the Agency Fee Letter and such other fees payable in the amounts and at the times separately agreed upon between and/or among the Borrower and the Facility Agent (the “Facility Agent Fees”).
(ii) The Borrower agrees to pay to the Security Trustee, for its own account, the fees payable to the Security Trustee set forth in the Agency Fee Letter and such other fees payable in the amounts and at the times separately agreed upon between and/or among the Borrower and the Security Trustee (the “Security Trustee Fees”).
(c) Other Fees. The Borrower agrees to pay to the Facility Agent, for the account of each Coordinating Lead Arranger, the fees set forth in the Fee Letter.
(d) Payment of Fees. All Fees shall be paid on the dates due, in immediately available funds in Dollars, to the Facility Agent for distribution, if and as appropriate, among the Lenders, except that the Borrower shall pay the Fees provided under Section 2.05(b) and (c) directly to the applicable Agents. Once paid, none of the Fees shall be refundable under any circumstances.
(e) Any fees otherwise payable by the Borrower to any Defaulting Lender pursuant to this Section 2.05 shall be subject to Section 2.16(c).
Section 2.06 Interest on Loans. (a) Subject to the provisions of Section 2.06(b), the Loans shall bear interest at a rate per annum equal to Term SOFR for the Interest Period in effect for such Borrowing plus the Applicable Margin, each as in effect from time to time.
(b) Notwithstanding the foregoing, upon the occurrence and during the continuance of any Event of Default, each Loan shall bear interest, after as well as before judgment, at a rate per annum equal to the rate which is 2.00% in excess of the rate then borne by such Loans (the “Default Rate”).
(c) Accrued interest on each Loan shall be payable in arrears on each Payment Date for such Loan; provided that, (i) interest accrued pursuant to Section 2.06(b) (and all interest on past due interest) shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment.
(d) All interest hereunder shall be computed on the basis of a year of 360 days (or in the case of interest computed by reference to ABR at times when ABR is based on the Prime Rate, such
interest shall be computed on the basis of a year of 365 days (or 366 days in a leap year)) and shall be payable for the actual numbers of days elapsed (including the first day but excluding the last day); provided that, any Loan that is repaid on the same day on which it is made shall, subject to Section 2.13, bear interest for one day. Term SOFR shall be determined by the Facility Agent in accordance with the provisions of this Agreement and such determination shall be conclusive absent manifest error. Interest hereunder shall be due and payable in accordance with the terms hereof before and after any judgment, and before and after the commencement of any Insolvency Proceeding.
Section 2.07 Termination and Reduction of Commitments. (a) (i) the Initial Term Commitments made effective on the Initial Borrowing Date shall automatically terminate on the earlier of (A) the Initial Borrowing Date immediately upon the making of the Initial Term Loans on such date and (B) July 10, 2026, (ii) the Tranche 8 Commitment shall automatically terminate on the earlier to occur of (x) the Tranche 8 Borrowing Date and (y) the end of the Availability Period, and (iii) the Tranche 9 Commitment shall automatically terminate on the earlier to occur of (x) the Tranche 9 Borrowing Date and (y) the end of the Availability Period.
(b) At its option, the Borrower may at any time terminate, or from time to time permanently reduce, the Commitments of any Class; provided that, each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000.
(c) The Borrower shall notify the Facility Agent in writing of any election to terminate or reduce Commitments of any Class under Section 2.07(b) at least three (3) Business Days prior to the effective date of such termination or reduction (which effective date shall be a Business Day), specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Facility Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section 2.07 shall be irrevocable; provided that, a notice of termination of all then remaining Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities in order to refinance in full the Obligation hereunder, in which case such notice may be revoked by the Borrower (by notice to the Facility Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance with their respective Commitments for such Class.
Section 2.08 Interest Elections.
(a) Each Borrowing shall have an Interest Period specified in such Borrowing Request. Thereafter, the Borrower may deliver an Interest Election Request in accordance with this Section 2.08.
(b) To make an election pursuant to this Section 2.08, the Borrower shall deliver, by hand delivery or email through “pdf” copy (or transmit by other electronic transmission if arrangements for doing so have been approved in writing by the Facility Agent), a duly completed and executed Interest Election Request to the Facility Agent not later than the time that a Borrowing Request would be required under Section 2.03 (assuming, for purposes of determining such required timing, that the last day of the applicable Interest Period is the date of the “proposed Borrowing” (as referenced in Section 2.03)). Each Interest Election Request shall be irrevocable.
(c) Each Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings
are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clause (iii) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; and
(iii) the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” contained herein.
If any such Interest Election Request does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of three (3) months’ duration.
Promptly following receipt of an Interest Election Request, the Facility Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
Section 2.09 Amortization of Borrowings. (a) The Borrower shall pay to the Facility Agent, for the account of the Lenders, on each Payment Date, a principal amount equal to the Scheduled Amortization Payment Amount described in Schedule 2.09(a) for such Payment Date (as such Schedule 2.09(a) shall be adjusted (a) on the Tranche 8 Borrowing Date by the Borrower and the Facility Agent to take into account the actual amount of the Tranche 8 Borrowing, (b) on the Tranche 9 Borrowing Date by the Borrower and the Facility Agent to take into account the actual amount of the Tranche 9 Borrowing, and (c) from time to time pursuant to Section 2.07 or Section 2.10), together, in each case, with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
(b) To the extent not previously irrevocably paid in full in cash, all Loans shall be due and payable on the Maturity Date.
Section 2.10 Optional and Mandatory Prepayments of Loans. (a) Optional Prepayments. The Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, without premium or penalty subject to the requirements of this Section 2.10; provided that, each partial prepayment shall be in an amount that is an integral multiple of $100,000 and not less than $1,000,000.
(b) Mandatory Prepayments.
(i) On (A) the date of any Asset Sale in respect of a Collateral Vessel or Sale and Leaseback Transaction in respect of a Collateral Vessel (or Asset Sale in respect of the Equity Interests in the owner of a Collateral Vessel) (the transactions referred to in this clause (A), each a “Collateral Vessel Disposition”) and (B) the earlier of (x) the date which is one hundred and twenty (120) days following the Total Loss Date in respect of a Collateral Vessel (or, if such date is not a Business Day, on the following Business Day) and (y) the date of receipt by the Borrower, any Vessel Owner Guarantor, Charterer or the Facility Agent of the insurance proceeds relating to such Total Loss (or, if such date is not a Business Day, on the following Business Day) (provided that, if any Collateral Vessel which is the subject of a Requisition is redelivered to the full control of the Vessel Owner Guarantor prior to such date, no prepayment shall be required), the Borrower shall, prepay (1) first, in full all Loans in respect of the Tranche relating to such Collateral Vessel (regardless of whether the applicable Net Cash Proceeds are sufficient to make such payment in full) and (2) to the extent of any remaining Net Cash Proceeds, on a pro rata basis, the Loans in respect of the other Tranches.
(ii) Within 45 days after the termination, expiry, rescission or effluxion of time of any Charter or Charter Performance Guarantee, the Borrower shall, prepay in full all Loans in
respect of the Tranche relating to such Charter or Charter Performance Guarantee (regardless of whether the applicable Net Cash Proceeds are sufficient to make such payment in full).
(iii) Within three (3) Business Days after the receipt of any Cure Amount in accordance with Section 6.10(d), the Borrower shall prepay Loans as required in accordance with Section 6.10(d).
(c) Reserved.
(d) Application of Prepayments under the Facilities. Prior to any optional prepayment with respect to the Facilities hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to Section 2.10(f), subject to the provisions of this Section 2.10(d). Any prepayments pursuant to Section 2.10(b)(i) shall be applied (i) to the applicable Tranche, as set forth in such Section 2.10(b)(i), and (ii) with respect to the other Tranches (as contemplated by such Section 2.10(b)(i)) to prepay principal of applicable outstanding Loans and, to the extent so applied, to reduce future applicable Scheduled Amortization Payment Amounts of such Loans required under Section 2.09 (including the Scheduled Amortization Payment Amount due on the Maturity Date) on a pro rata basis among the payments remaining to be made on each Payment Date. Optional prepayments of Loans pursuant to Section 2.10(a) shall be applied to reduce future Scheduled Amortization Payment Amounts under Section 2.09 (including the Scheduled Amortization Payment Amount due on the Maturity Date) on a pro rata basis among the payments remaining to be made on each Payment Date.
(e) Additional Amounts. Any prepayment of the Loan made hereunder shall be accompanied by a payment of all accrued interest to the date of such prepayment with respect to the Loan or portions thereof being prepaid to the extent required by Section 2.06, together with any and all costs or expenses required to be paid by the Borrower under Section 2.12, 2.13 or 2.15, if any, any accrued but unpaid Commitment Fees, and a pro rata portion of the Secured Obligations in respect of Bank Product Obligations arising as a result of the termination of any Bank Products to the extent the aggregate notional amount of such Bank Products after giving effect to the prepayment exceeds the outstanding principal of the Loans.
(f) Notice of Prepayment. The Borrower shall notify the Facility Agent by written notice of any prepayment hereunder, not later than 1:00 p.m., New York City time, on the third Business Day before the date of prepayment. Each such notice shall be irrevocable; provided that, a notice of prepayment of all outstanding Loans may state that such notice is conditioned upon the effectiveness of other credit facilities, the sale of debt securities, or, in the case of an Asset Sale, closing of such sale, in order to refinance in full all Obligations hereunder, in which case such notice may be revoked by the Borrower (by notice to the Facility Agent on or prior to the specified effective date) if such condition is not satisfied. Each such notice shall specify the Class of Loans being prepaid, the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice, the Facility Agent shall advise the applicable Lenders of the contents thereof. Such notice to the Lenders may be by electronic communication. Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in accordance with this Section 2.10.
(g) Release of Security. Following the sale (including any Collateral Vessel Disposition or Permitted Owner Guarantor Sale) or Total Loss of a Collateral Vessel and the prepayment
in full of all Obligations in respect of the Tranche of Loans corresponding to such Collateral Vessel, at the cost of the Borrower, so long as (i) no Event of Default has occurred and is continuing and (ii) the Borrower is in compliance with the Financial Covenants set forth in Section 6.10, in each case, giving effect to the releases contemplated by this clause (g), the Security Trustee and the Facility Agent shall promptly (A) release the relevant Vessel Owner Guarantor, the Charterer and the Security Interests over the relevant Collateral Vessel, its Earnings and Insurance Collateral and Charter Collateral from the Loan Documents, and (B) execute and deliver any documentation reasonably requested by the Borrower in writing to further evidence or reflect any such release.
Section 2.11 Inability to Determine Rates; Market Disruption
(a) Subject to Section 2.21, if, on or prior to the first day of any Interest Period for any SOFR Loan:
(i) the Facility Agent reasonably determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or
(ii) the Required Lenders reasonably determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that the Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of making and maintaining such Loan, and the Required Lenders have provided notice of such determination to the Facility Agent,
the Facility Agent will promptly so notify the Borrower and each Lender.
Upon notice thereof by the Facility Agent to the Borrower, any obligation of the Lenders to make SOFR Loans, and any right of the Borrower to continue SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until the Facility Agent (with respect to clause (b), at the instruction of the Required Lenders) revokes such notice. Subject to Section 2.21, upon receipt of such notice, (i) the Borrower may revoke any pending request for a borrowing of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to ABR Loans in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into ABR Loans at the end of the applicable Interest Period. Upon any such conversion, the Borrower shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.13.
Section 2.12 Increased Costs; Change in Legality. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against property of, deposits with or for the account of, or credit extended by or participated in by, any Lender;
(ii) impose on any Lender or the London or other applicable offshore interbank market any other condition, cost or expense (other than with respect to Taxes) affecting this Agreement or the Loans made by such Lender; or
(iii) subject any Lender or other Recipient to any Taxes (other than (A) Indemnified Taxes or Other Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its Loans, principal,
letters of credit, Commitments or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lender or such Recipient of making, converting to, continuing or maintaining any Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, then the Borrower will pay to such Lender or other Recipient such additional amount or amounts as will compensate such Lender or other Recipient for such additional costs incurred or reduction suffered; it being understood that this Section 2.12 shall not apply to Taxes that are Indemnified Taxes or Other Taxes indemnified pursuant to Section 2.15.
(b) If any Lender determines (in good faith, but in its sole absolute discretion) that any Change in Law regarding Capital Requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company or lending office, if any, as a consequence of this Agreement, the Commitment of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company, for any such reduction suffered.
(c) A certificate of a Lender setting forth in reasonable detail (for the avoidance of doubt excluding any confidential or price sensitive information) the amount or amounts necessary to compensate such Recipient, Lender or its holding company, as the case may be, as specified in clause (a) or (b) of this Section 2.12 shall be delivered to the Borrower (with a copy to the Facility Agent) and shall be conclusive and binding absent manifest error. The Borrower shall pay such Lender or Recipient the amount shown as due on any such certificate within 10 Business Days after receipt thereof.
(d) Failure or delay on the part of any Lender or Recipient to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s or Recipient’s right to demand such compensation; provided that, (i) the Borrower shall not be required to compensate a Lender or Recipient for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Recipient notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Recipient’s intention to claim compensation therefor, (ii) if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to indicate the period of retroactive effect thereof and (iii) such increased costs or reductions shall only be payable by the Borrower to the applicable Lender or Recipient under this Section 2.12 to the extent that such Lender or Recipient is generally imposing such charges on similarly situated borrowers.
(e) Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Loan or to give effect to its obligations as contemplated hereby with respect to any Loan, then, by written notice to the Borrower and to the Facility Agent, such Lender may declare that Loans will not thereafter (for the duration of such unlawfulness (as determined in good faith by such Lender)) be made by such Lender hereunder (or be continued for additional Interest Periods) and any obligation of the Lenders to make such affected Loans, and any right of the Borrower to continue SOFR Loans, shall be suspended until each affected Lender notifies the Facility Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of any such notice, the Borrower shall either (x) if the affected Loan is then being made
initially, cancel the respective Credit Extension by giving the Facility Agent telephonic notice (confirmed in writing) on the same date or the next Business Day that the Borrower was notified by the affected Lender or the Facility Agent or (y) if the affected Loan is then outstanding, upon at least three Business Days’ written notice to the Facility Agent, repay such affected Loan of such Lender (within the time period required by the applicable law or governmental rule, governmental regulation or governmental order) in full in accordance with the applicable requirements of Section 2.14 or, if such illegality relates to making, maintaining or funding Loans whose interest is determined by reference to SOFR, convert all SOFR Loans to ABR Loans; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.12(e).
(f) For purposes of clause (e) of this Section 2.12, a notice to the Borrower by any Lender shall be effective as to each Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower.
Section 2.13 Breakage Payments. In the event of (a) the payment (other than any payments made on the Maturity Date) or prepayment, whether optional or mandatory, of any principal of any SOFR Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto (whether or not such notice is permitted to be withdrawn by the Borrower), or (d) the assignment of any SOFR Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.16, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event (including any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its Loans but excluding loss of anticipated profits). Each Lender shall calculate any amount or amounts in good faith and in a commercially reasonable manner. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to the Borrower (with a copy to the Facility Agent) and shall be conclusive and binding absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof. Notwithstanding the foregoing, this Section 2.13 shall not apply to losses, costs or expenses resulting from Taxes, as to which Section 2.15 shall govern.
Section 2.14 Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The Borrower shall make each payment required to be made hereunder or under any other Loan Document (whether of principal, interest, fees or of amounts payable under Section 2.12, 2.13 or 2.15, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim. Any amounts received after such time on any date may, in the discretion of the Facility Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Facility Agent at its offices at 1133 Avenue of the Americas New York, NY 10036; Attn: Agency Middle Office / Agency Loan Services, except that payments pursuant to Sections 2.12, 2.13, 2.15 and 11.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Facility Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in Dollars.
(b) Subject to Section 9.01, if at any time insufficient funds are received by and available to the Facility Agent to pay in full all amounts of principal, premium, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest, premium and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest, premium and fees then due to such parties and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 11.08) or otherwise (including by exercise of its rights under the Security Documents), obtain payment in respect of any principal of or premium or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (x) notify the Facility Agent of such fact and (y) purchase (for cash at face value) participations in the Loans and such other obligations of other Lenders or make such other adjustments as shall be equitable to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest and premium on their respective Loans and other amounts owing them; provided that, (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section 2.14(c) shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender or Disqualified Institution) or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any Eligible Assignee or participant, other than to any Company or any Affiliate thereof (as to which the provisions of this Section 2.14(c) shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. If under applicable Debtor Relief Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this Section 2.14(c) to share in the benefits of the recovery of such secured claim.
(d) Unless the Facility Agent shall have received written notice from the Borrower prior to the date on which any payment is due to the Facility Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Facility Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Facility Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Facility Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c), Section 2.14(d) or Section 11.03(e), then the Facility Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Facility Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Section 2.15 Taxes. (a) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction, or withholding for any Taxes except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.15) the Facility Agent or any Lender, as the case may be, receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b) In addition, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Legal Requirements, or at the option of the Facility Agent, reimburse it for payment of any Other Taxes.
(c) The Borrower agrees to indemnify the Facility Agent and each Lender within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Facility Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder or under any other Loan Document or any Other Taxes paid by the Facility Agent or such Lender (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that, the Borrower shall not be required to indemnify the Facility Agent or any Lender for any penalties, interest or expenses to the extent resulting from the negligence, bad faith or willful misconduct of such Recipient. A certificate setting forth in reasonable detail the basis for such claim and the amount of such payment or liability delivered to the Borrower by a Lender (in each case with a copy delivered concurrently to the Facility Agent), or by the Facility Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
(d) Each Lender shall severally indemnify the Facility Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Facility Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Facility Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority, provided that, the Borrower shall not be required to indemnify the Facility Agent or any Lender for any penalties, interest or expenses to the extent resulting from the negligence, bad faith or willful misconduct of such Recipient. A certificate setting forth in reasonable detail the basis for such claim and amount of such payment or liability delivered to any Lender by the Facility Agent
shall be conclusive absent manifest error. Each Lender hereby authorizes the Facility Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Facility Agent to the Lender from any other source against any amount due to the Facility Agent under this clause (d).
(e) As soon as practicable after any payment of Indemnified Taxes or Other Taxes, and in any event within 30 days following any such payment being due by the Borrower to a Governmental Authority, the Borrower shall deliver to the Facility Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the Tax Return reporting such payment or other evidence of such payment reasonably satisfactory to the Facility Agent. If the Borrower fails to pay any Indemnified Taxes or Other Taxes when due to the appropriate Governmental Authority or fails to remit to the Facility Agent the required receipts or other documentary evidence, the Borrower shall indemnify the Facility Agent and each Lender for any incremental Taxes or expenses that may become payable by the Facility Agent or such Lender, as the case may be, as a result of any such failure.
(f) Status of Lenders.
(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Facility Agent, at the time or times reasonably requested by the Borrower or the Facility Agent, such properly completed and executed documentation and information reasonably requested by the Borrower or the Facility Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Facility Agent, shall deliver such other documentation prescribed by Legal Requirements or reasonably requested by the Borrower or the Facility Agent as will enable the Borrower or the Facility Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.15(f)(ii), Section 2.15(f)(iii) and Section 2.15(g)) shall not be required if, in the Lender’s reasonable judgment, such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the generality of the foregoing, each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Facility Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not (I) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (II) a “10 percent shareholder” of the Borrower (or, if the Borrower is a “disregarded entity” for U.S. federal income tax purposes, of its first
regarded owner) within the meaning of Section 871(h)(3)(B) of the Code, or (III) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that, if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(iii) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Facility Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Facility Agent to determine the withholding or deduction required to be made;
(iv) Each Lender that is not a Foreign Lender shall deliver to the Borrower and the Facility Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; and
(v) the Facility Agent shall (i) furnish to the Borrower on or prior to the date it becomes a party hereto two accurate and complete executed copies of IRS Form W-8IMY (or successor form), evidencing its agreement with the Borrower to be treated as a U.S. Person for U.S. federal withholding tax purposes with respect to payments received by the Facility Agent for the account of others, together with required withholding statement and any other required documents, and (ii) provide a new Form W-8IMY (or successor form), evidencing its agreement with the Borrower to be treated as a U.S. Person for U.S. federal withholding tax purposes with respect to payments received by the Facility Agent for the account of others, together with required withholding statement and any other required documents, upon the expiration or obsolescence of any previously delivered form or at any other time upon the reasonable request of the Borrower.
(vi) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Facility Agent in writing of its legal inability to do so.
(g) If a payment made to a Recipient under any Loan Document would be subject to U.S. federal withholding Tax imposed under FATCA if such Recipient were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Withholding Agent, at the time or times prescribed by law and at such times reasonably requested by the Withholding Agent, (A) such documentation prescribed by applicable Legal Requirements (including as prescribed by Section 1471(b)(3)(C)(i) of the Code), and (B) such other documentation reasonably requested by the Withholding Agent as may be necessary for the Withholding Agent to comply with their obligations
under FATCA, in order to determine that such Recipient has complied with such Recipient’s obligations under FATCA, or to determine the amount, if any, to deduct and withhold from such payment, or notify the Withholding Agent that such Recipient is not in compliance with FATCA. Solely for purposes of this Section 2.15(g), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(h) If the Facility Agent or a Lender (or an assignee) determines in its sole discretion exercised in good faith that it has received a refund (including credits in lieu of a refund) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.15), it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.15 with respect to the Indemnified Taxes or the Other Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Facility Agent or such Lender (or assignee) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that, if the Facility Agent or such Lender (or assignee) is required to repay all or a portion of such refund to the relevant Governmental Authority, the Borrower, upon the request of the Facility Agent or such Lender (or assignee), shall repay the amount paid over to the Borrower that is required to be repaid (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Facility Agent or such Lender (or assignee) within three Business Days after receipt of written notice that the Facility Agent or such Lender (or assignee) is required to repay such refund (or a portion thereof) to such Governmental Authority. This paragraph shall not be construed to require the Facility Agent or any Lender (or assignee) to make available its Tax Returns or any other information relating to its Taxes that it deems confidential or privileged to the Borrower or any other Person. Notwithstanding anything to the contrary in this paragraph, in no event will the Facility Agent or any Lender (or assignee) be required to pay any amount to the Borrower the payment of which would place the Facility Agent or such Lender (or assignee) in a less favorable net after-Tax position than the Facility Agent or such Lender (or assignee) would have been in if indemnification payments or the additional amounts with respect to the Tax giving rise to such refund had never been paid.
Section 2.16 Mitigation Obligations; Replacement of Lenders.
(a) Mitigation of Obligations. If any Lender requests compensation under Section 2.12(a) or (b), or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall, if requested by the Borrower, use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce materially amounts payable pursuant to Section 2.12(a), 2.12(b) or 2.15, as the case may be, in the future, (ii) would not subject such Lender to any unreimbursed cost or expense, (iii) would not require such Lender to take any action inconsistent with its internal policies or legal or regulatory restrictions, and (iv) would not otherwise be disadvantageous to such Lender. The Borrower shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. A certificate setting forth such costs and expenses submitted by such Lender to the Facility Agent shall be conclusive absent manifest error.
(b) Replacement of Lenders. In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.12(a) or (b), (ii) any Lender delivers a notice described in Section 2.12(e), (iii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.15, (iv) any Lender refuses to
consent to any amendment, waiver or other modification of any Loan Document requested by the Borrower that requires the consent of 100% of the Lenders or 100% of all affected Lenders and which, in each case, has been consented to by the Required Lenders or (v) any Lender becomes a Defaulting Lender, the Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 11.04(b)), upon notice to such Lender and the Facility Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to restrictions contained in Section 11.04; provided that, the failure of such assigning Lender to execute an Assignment and Acceptance shall not affect the validity and effect of such assignment), all of its interests, rights and obligations under this Agreement to an Eligible Assignee which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that, (A) except in the case of clause (iv) above if the effect of such amendment, waiver or other modification of the applicable Loan Document would cure any Default then ongoing, no Default shall have occurred and be continuing, (B) such assignment shall not conflict with any applicable Legal Requirement, (C) the Borrower shall have received the prior written consent of the Facility Agent, which consent shall not unreasonably be withheld or delayed, and (D) the Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest and any prepayment premium or penalty (if any) accrued to the date of such payment on the outstanding Loans of such Lender affected by such assignment plus all Fees and other amounts owing to or accrued for the account of such Lender hereunder (including any amounts under Sections 2.12 and 2.13); provided further that, if prior to any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation under Section 2.13(a) or (b) or notice under Section 2.12(e) or the amounts paid pursuant to Section 2.15, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.12(e), or cease to result in amounts being payable under Section 2.15, as the case may be (including as a result of any action taken by such Lender pursuant to clause (a) of this Section 2.16), or if such Lender shall waive its right to claim further compensation under Section 2.12(a) or (b) in respect of such circumstances or event or shall withdraw its notice under Section 2.12(e) or shall waive its right to further payments under Section 2.15 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender shall not thereafter be required to make any such transfer and assignment hereunder. Each Lender hereby grants to the Facility Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.16(b).
(c) Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then (i) during any Default Period with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender,” and the amount of such Defaulting Lender’s Commitments and Loans shall be excluded for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, except that the amount of such Defaulting Lender’s Commitments and Loans shall be included for purposes of voting, and the calculation of voting, on the matters set forth in Sections 11.02(b)(i) through (viii) and 11.02(b)(xi) and (xii) (including the granting of any consents or waivers) only to the extent that any such matter disproportionately affects such Defaulting Lender; (ii) . In the event that each of the Facility Agent and the Borrower agree in writing that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then such Defaulting Lender shall cease to be a Defaulting Lender; provided that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided further that, except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.
(d) Cancellation of Defaulting Lender’s Commitment. If any Lender becomes a Defaulting Lender, the Borrower may, at any time while such Lender continues to be a Defaulting Lender, give the Facility Agent three (3) Business Days’ notice of cancellation of the undrawn Commitment of that Defaulting Lender. On such notice becoming effective, the undrawn Commitment of that Defaulting Lender shall immediately be reduced to zero (without increasing the Commitment of any other Lender). The Facility Agent shall as soon as practicable after receipt of such notice notify all the Lenders.
For purposes of this Agreement, (i) “Funding Default” shall mean, with respect to any Defaulting Lender, the occurrence of any of the events set forth in the definition of “Defaulting Lender,” (ii) “Default Period” shall mean, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and ending on the earliest of the following dates: (a) the date on which all Commitments are cancelled or terminated and/or the Obligations are declared or become immediately due and payable; (b) with respect any Funding Default (other than any such Funding Default arising pursuant to clause (d) of the definition of “Defaulting Lender”), the date on which (1) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero and (2) such Defaulting Lender shall have delivered to the Borrower and the Facility Agent a written reaffirmation of its intention to honor its obligations under this Agreement with respect to its Commitment; and (c) the date on which the Borrower, the Facility Agent and the Required Lenders waive all Funding Defaults of such Defaulting Lender in writing.
No amount of the Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in Section 2.16(c), performance by the Borrower of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of Section 2.16(c). The rights and remedies against a Defaulting Lender under Section 2.16(c) are in addition to other rights and remedies that the Borrower may have against such Defaulting Lender with respect to any Funding Default and that the Facility Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default.
Section 2.17 Nature of Obligations.
(a) Notwithstanding anything to the contrary contained elsewhere in this Agreement or any other Loan Document, it is understood and agreed by the various parties to this Agreement that all Obligations to repay principal of, interest on, and all other amounts with respect to, all Loans and all other Obligations pursuant to this Agreement and each other Loan Document (including all fees, indemnities, taxes and other Obligations in connection therewith) shall constitute the obligations of the Borrower. In addition to the direct obligations of the Borrower with respect to Obligations as described above, all such Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guarantees.
(b) The obligations of the Borrower with respect to the Obligations are independent of the obligations of the Vessel Owner Guarantors under the Guarantees of such Obligations, and a separate action or actions may be brought and prosecuted against the Borrower and each Vessel Owner Guarantor (in its capacity as a Vessel Owner Guarantor), whether or not any Vessel Owner Guarantor is joined in any such action or actions. The Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof.
(c) The Borrower authorizes the Facility Agent, the Security Trustee and the Lenders without notice or demand (except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to, to the maximum extent permitted by applicable law and the Loan Documents:
(i) exercise or refrain from exercising rights against any Vessel Owner Guarantor or others or otherwise act or refrain from acting;
(ii) release or substitute endorsers, Vessel Owner Guarantors or other obligors;
(iii) settle or compromise any of the Obligations of any other Loan Party, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower to its creditors other than the Lenders;
(iv) apply any sums paid by any other Person, howsoever realized to any liability or liabilities of the Borrower or other Person regardless of what liability or liabilities of such other Borrower or other Person remain unpaid; and/or
(v) consent to or waive any breach of, or act, omission or default under, this Agreement or any of the instruments or agreements referred to herein, or otherwise, by any Person.
(d) It is not necessary for the Facility Agent, the Security Trustee or any Lender to inquire into the capacity or powers of the Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall constitute the obligations of the Borrower.
(e) The Borrower waives any right to require the Facility Agent, the Security Trustee or the Lenders to (i) proceed against any Vessel Owner Guarantor or any other party, (ii) proceed against or exhaust any security held from the Borrower, any Vessel Owner Guarantor or any other party or (iii) pursue any other remedy in the Facility Agent’s, the Security Trustee’s or the Lenders’ power whatsoever. The Borrower waives any defense based on or arising out of suretyship or any impairment of security held from the Borrower, any Vessel Owner Guarantor or any other party or on or arising out of any defense of any Vessel Owner Guarantor or any other party other than payment in full in cash of the Obligations, including any defense based on or arising out of the disability of any Vessel Owner Guarantor or any other party, or the unenforceability of the Obligations or any part thereof from any cause, in each case other than as a result of the payment in full in cash of the Obligations.
Section 2.18 Cash Waterfall.
(a) Deposits into Accounts.
(i) Earnings Account. The Borrower and each Vessel Owner Guarantor will (or will cause) the earnings derived after the Closing Date from each of the respective Collateral Vessels, to the extent constituting Earnings and Insurance Collateral, to be deposited by the respective account debtor in respect of such earnings into the Earnings Account. Without limiting any Loan Party’s obligations in respect of this Section 2.18(a)(i), each Loan Party agrees that in the event such Loan Party receives any earnings constituting Earnings and Insurance Collateral, or any such earnings are deposited into an account other than the Earnings Account, it shall immediately deposit all such proceeds into the Earnings Account.
(ii) Debt Services Reserve Account.
(A) On the Initial Borrowing Date, the Borrower will cause Loan proceeds to be deposited into the Debt Service Reserve Account in an amount equal to the Debt Service Reserve Required Balance.
(B) Thereafter, (x) the Debt Service Reserve Account shall be funded from the Earnings Account at such times and in such amounts as provided in Section 2.18(b)(v)(x), and (y) to the extent required, on each of the Tranche 8 Borrowing Date and Tranche 9 Borrowing Date, the Borrower may cause Tranche 8 Loan proceeds and Tranche 9 Loan proceeds, as applicable, to be deposited into the Debt Service Reserve Account, in each case, to the extent necessary to cause the balance therein to equal the then required Debt Service Reserve Required Balance.
(iii) Operating Expense Reserve Account.
(A) On the Initial Borrowing Date, the Borrower will cause Loan proceeds to be deposited into the Operating Expense Reserve Account in an amount equal to the Operating Expense Reserve Required Balance.
(B) Thereafter, (x) the Operating Expense Reserve Account shall be funded from the Earnings Account at such times and in such amounts as provided in Section 2.18(b)(v)(y), and (ii) to the extent required, on the Tranche 8 Borrowing Date and Tranche 9 Borrowing Date, the Borrower may cause Tranche 8 Loan proceeds and Tranche 9 Loan proceeds, as applicable, to be deposited into the Operating Expense Reserve Account, in each case, to the extent necessary to cause the balance therein to equal the then required Operating Expense Reserve Required Balance.
(b) Withdrawals from the Earnings Account. Subject to Sections 2.18(e), (f) and (g), all amounts in the Earnings Account shall be disbursed by the Borrower from time to time for application, at the following times and in the following order of priority:
(i) First, on each Monthly Date (or on any other date when due and payable), to pay (x) the indemnities, fees and expenses (including fees, charges and disbursements of counsel) (first, to the extent owed to the Security Trustee or the Facility Agent, and then to any other Secured Party) which are then due and payable under the Loan Documents, and (y) all indemnities, fees and expenses (including fees, charges and disbursements of counsel) which are then due and payable under any Interest Rate Hedging Agreement or, to the extent not covered by clause (x) above, to the Account Bank;
(ii) Second, on each Monthly Date (or on any other date when due and payable), to pay on a pro rata basis (x) scheduled cash interest expense and commitment fees due and payable under the Loan Documents and (y) ordinary course settlement amounts payable pursuant to any Interest Rate Hedging Agreement;
(iii) Third, on each Quarterly Payment Date (or on any other date when due and payable), to pay on a pro rata basis (x) scheduled principal payments under the Loan Documents and (y) breakage, termination and other payments (including any related interest expense) under any Interest Rate Hedging Agreement;
(iv) Fourth, on each Monthly Date (or on any other date when due and payable), as needed, to pay indemnities, fees and expenses (including fees, charges and disbursements of
counsel), scheduled cash interest expense, commitment fees, letter of credit fees and scheduled principal payments due and payable in respect of any other Indebtedness and Hedge Agreements permitted under Section 6.01;
(v) Fifth, on each Quarterly Payment Date, if necessary, on a pro rata basis to fund (x) the Debt Service Reserve Account, when taken together with all other amounts on deposit therein, up to the Debt Service Reserve Required Balance at such time and (y) the Operating Expense Reserve Account, when taken together with all other amounts on deposit therein, up to the Operating Expense Reserve Required Balance at such time;
(vi) Sixth, on each Monthly Date, at the election of the Borrower, to the making of any voluntary prepayment of principal or other amounts in respect of any Loans, or any other permitted revolving credit or letter of credit facilities;
(vii) Seventh, on each Monthly Date, at the election of the Borrower, to the making of voluntary prepayments, repayments, redemptions, purchases, defeasance or other satisfaction of the Term Facilities or any other Indebtedness permitted under Section 6.01, and any breakage, termination and other payments (including any related interest expense) under any Hedge Agreements; and
(viii) Eighth, on each Quarterly Payment Date, the remainder (provided that, no Default or Event of Default has occurred and is continuing (or would result from the making of such distribution), as a distribution to any other Person (including the Pledgor) designated by the Borrower.
(c) Withdrawals from the Debt Service Reserve Account. The Company shall be permitted to withdraw funds at any time and in any amount from the Debt Service Reserve Account to pay for Debt Service then due and payable (solely to the extent funds are not available at the applicable level of the cash waterfall set forth in Section 2.18(b) for the payment of such Debt Service).
(d) Withdrawals from the Operating Expense Reserve Account. After the occurrence and during the continuance of an Event of Default, funds on deposit in the Operating Expense Reserve Account may be withdrawn solely to pay or reimburse Operating Expenses.
(e) Closing Date disbursements. On or promptly after the Closing Date, the proceeds of the Initial Term Loans may be transferred from the Earnings Account and disbursed in accordance with Section 6.08(c) as specified by the Borrower.
(f) Tranche 8 Borrowing Date disbursements. On or promptly after the Tranche 8 Borrowing Date, the proceeds of the Tranche 8 Loans may be transferred from the Earnings Account and disbursed in accordance with Section 6.08(b) as specified by the Borrower.
(g) Tranche 9 Borrowing Date disbursements. On or promptly after the Tranche 9 Borrowing Date, the proceeds of the Tranche 9 Loans may be transferred from the Earnings Account and disbursed in accordance with the Section 6.08(b) as specified by the Borrower.
Section 2.19 Erroneous Payments.
(a) With respect to any payment that Facility Agent makes to any Lender or other Secured Party as to which Facility Agent determines that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) Borrower has not in fact made the corresponding payment to Facility Agent; (2) Facility Agent has made a payment in excess of the amount(s) received by it from
Borrower either individually or in the aggregate (whether or not then owed); or (3) Facility Agent has for any reason otherwise erroneously made such payment; then each of the Secured Parties severally agrees to repay to Facility Agent (within two (2) Business Days) the Rescindable Amount so distributed to such Secured Party, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Facility Agent, at the Federal Funds Effective Rate. A notice of the Facility Agent to any Person under this clause (a) shall be conclusive, absent manifest error.
Notwithstanding anything to the contrary in this Agreement, if at any time Facility Agent determines (in its sole and absolute discretion) that it has made a payment hereunder in error to any Lender or other Secured Party, whether or not in respect of an Obligation due and owing by a Loan Party at such time, where such payment is a Rescindable Amount, then in any such event, each such Person receiving a Rescindable Amount severally agrees to repay to Facility Agent (within two (2) Business Days) the Rescindable Amount received by such Person in immediately available funds in the currency so received, with interest thereon, for each day from and including the date such Rescindable Amount was received by it to but excluding the date of payment to Facility Agent, at the Federal Funds Effective Rate. A notice of the Facility Agent to any Person under this clause (b) shall be conclusive, absent manifest error. To the extent permitted by law, each Lender and each other Secured Party irrevocably waives any and all defenses, including any “discharge for value” (under which a creditor might otherwise claim a right to retain funds mistakenly paid by a third party in respect of a debt owed by another), “good consideration”, “change of position” or similar defenses (whether at law or in equity) to its obligation to return any Rescindable Amount. Facility Agent shall inform each Lender or other Secured Party that received a Rescindable Amount promptly upon determining that any payment made to such Person comprised, in whole or in part, a Rescindable Amount. Each Person’s obligations, agreements and waivers under this Section 2.19 shall survive the resignation or replacement of the Facility Agent, any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Loan Document.
(b) Each Lender or Secured Party hereby authorizes the Facility Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document against any amount due to the Facility Agent under immediately preceding clauses (a) or (b) under the indemnification provisions of this Agreement.
(c) The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party, except, in each case, to the extent such Rescindable Amount is, and solely with respect to the amount of such Rescindable Amount that is, comprised of funds received by the Facility Agent from the Borrower or any other Loan Party for the purpose of making such Rescindable Amount.
Section 2.20 Reserved.
Section 2.21 Benchmark Replacement Setting. (a) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is
determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Facility Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Facility Agent will have the right, acting reasonably and upon prior consultation with the Borrower, to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. The Facility Agent will promptly notify the Borrower and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. The Facility Agent will notify the Borrower of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.21 and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Facility Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.21, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.21.
(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Facility Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Facility Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Facility Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending request for a SOFR Borrowing of or continuation of SOFR Loans to be made or continued during any Benchmark
Unavailability Period and, failing that, the Borrower will be deemed to have converted any such request into a request for a Borrowing of or a conversion to ABR Loans.
Article III
REPRESENTATIONS AND WARRANTIES
Each Loan Party hereby represents and warrants to the Facility Agent, the Security Trustee and each of the Lenders on the Closing Date and upon each Credit Extension thereafter that:
Section 3.01 Organization; Powers. Each Loan Party (a) is duly incorporated or organized and validly existing under the laws of the jurisdiction of its incorporation or organization, as the case may be, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to carry on its business as now conducted and to own, lease and operate its property, except for such governmental licenses, authorizations, consents and approvals that the failure to obtain would not reasonably be expected to result in a Material Adverse Effect, and (c) is registered, qualified, licensed and in good standing to do business in every jurisdiction where such qualification is required (except in such jurisdictions where the failure to so register, qualify, be licensed or be in good standing would not reasonably be expected to result in a Material Adverse Effect) and, if applicable qualification as a foreign maritime entity in such jurisdiction where such qualification is required for ownership of a Collateral Vessel.
Section 3.02 Authorization; Enforceability. The Loan Documents to be entered into by each Loan Party are within such Loan Party’s powers and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party. Each Loan Document has been duly executed and delivered by each Loan Party thereto and constitutes a legal, valid and binding obligation of each such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
Section 3.03 No Conflicts; No Default. The Loan Documents (a) do not require any consent, exemption, authorization or approval of, registration or filing with, or any other action by, any Governmental Authority or other Person, except (i) such as have been obtained or made and are in full force and effect, (ii) filings or registrations necessary to perfect or maintain the perfection or priority of the Liens created by the Security Documents and (iii) consents, approvals, exemptions, authorizations, registrations, filings, permits or actions the failure of which to obtain or perform would not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of any Loan Party, (c) will not violate or result in a default or require any consent or approval under any material indenture, instrument, agreement, or other document binding upon any Company or any of its property or to which any Company or any of its property is subject, or give rise to a right thereunder to require any payment to be made by any Company, (d) will not violate any Legal Requirement, except to the extent that any such violation, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect and (e) will not result in the creation or imposition of (or the obligation to create or impose) any Lien on any property of any Company, other than the Liens created by the Security Documents. No Default or Event of Default has occurred and is continuing.
Section 3.04 Financial Statements; Projections. (a) The Borrower has heretofore delivered to the Lenders (i) the most recent pro forma consolidated balance sheet of the Borrower dated as of December 31, 2025 and (ii) the audited consolidated balance sheet of Charterer as of December 31, 2025.
Such financial statements, and all financial statements delivered pursuant to Sections 5.01(a) and (b), have been prepared in accordance with GAAP consistently applied throughout the applicable period covered, respectively, thereby and present fairly and accurately in all material respects the financial condition and results of operations. Except as set forth in such balance sheet, as of the Closing Date, there are no liabilities of the Borrower or any of its Subsidiaries of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, that would reasonably be expected to have a Material Adverse Effect.
(c) The Borrower has heretofore delivered to the Lenders the forecasts of financial performance consisting of projected income statements, balance sheets and cash flows of Borrower and its Subsidiaries (the “Projections”) and the assumptions upon which the Projections are based. The Projections have been based on good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made in light of the legal and factual circumstances then applicable to the Transactions (it being understood by the parties that projections by their nature are inherently uncertain, no assurances are being given that the results reflected in such Projections will be achieved, that actual results may differ and that such differences may be material).
(d) Since December 31, 2025, there has been no event, change, effect, circumstance, condition, development or occurrence that has had, or would reasonably be expected to result in, a Material Adverse Effect.
Section 3.05 Properties. (a) Each Loan Party has good and marketable title to, or valid leasehold interests in, all Collateral free and clear of all Liens and irregularities, deficiencies and defects in title except for Permitted Liens and minor irregularities, deficiencies and defects in title that, individually or in the aggregate, do not, and would not reasonably be expected to, interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose. The tangible property of the Loan Parties (i) taken as a whole, (A) is in good operating order, condition and repair (ordinary wear and tear excepted), but excluding, for purposes of this clause (A), the Collateral Vessels (which are covered by Section 5.16) and (B) constitutes all the tangible property which is required for the business and operations of the Loan Parties as presently conducted and (ii) with respect to Collateral Vessels, satisfies the requirements set forth in Section 5.16.
(b) Each Loan Party owns or has rights to use all of its tangible property and all rights with respect to any of the foregoing used in, necessary for or material to such Loan Party’s business as currently conducted, subject to Permitted Liens. The use by each Loan Party of its tangible property and all such rights with respect to the foregoing do not infringe on the rights or other interests of any Person, other than any infringement that would not reasonably be expected to result in a Material Adverse Effect. No claim has been made upon any Loan Party and remains outstanding that any Loan Party’s use of any of its tangible property does or may violate the rights of any third party that has had, or would reasonably be expected to result in, a Material Adverse Effect.
Section 3.06 Equity Interests and Subsidiaries. (a) Schedule 3.06(a) sets forth, as of the Closing Date, a list of (i) each Company and each such Company’s jurisdiction of incorporation or organization, and (ii) the number of each class of each Company’s Equity Interests authorized, and the number issued or outstanding, and the number of Equity Interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights. All Equity Interests of each Company are duly and validly issued and are fully paid and non-assessable, and (x) all Equity Interests of the Borrower are directly owned by Pledgor and (y) all Equity Interests of each Vessel Owner Guarantor are directly owned by the Borrower. Each Loan Party is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by (or purporting to be pledged by) it under the Security
Documents, free of any and all Liens, rights or claims of other Persons, except any Permitted Liens that arise by operation of applicable Legal Requirements and are not voluntarily granted. As of the Closing Date, except as set forth in Schedule 3.06(a), there are no outstanding warrants, options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible into, or that requires the issuance or sale of, any such Equity Interests (or any economic or voting interests therein).
(b) No consent of any Person, including any general or limited partner, any other member or manager of a limited liability company, any shareholder, any other trust beneficiary or derivative counterparty, is necessary in connection with the creation, perfection or maintenance of the security interest of the Security Trustee in any Equity Interests pledged to the Security Trustee under the Security Documents (including the priority thereof) or the exercise by the Security Trustee or any Lender of the voting or other rights provided for in the Security Documents or the exercise of remedies in respect of such Equity Interests as provided therein, except (i) such as have been obtained or made and are in full force and effect, and (ii) filings, recordings and registrations necessary to perfect or maintain the perfection or priority of the Liens created by the applicable Security Agreement .
(c) A complete and accurate organization chart, showing the ownership structure of the Loan Parties as of the Closing Date is set forth on Schedule 3.06(c).
Section 3.07 Litigation; Compliance with Legal Requirements. (a) There are no actions, suits, claims, disputes, proceedings or, to the knowledge of any Loan Party, investigations at law or in equity by or before any Governmental Authority now pending or, to the knowledge of any Loan Party, threatened in writing against any Company or any business, property or rights of any Company (i) that purport to affect or involve any Loan Document or, as of the Closing Date, any of the Transactions or (ii) that have resulted, or would reasonably be expected to result, in a Material Adverse Effect.
(b) Each Company is in compliance with all Legal Requirements of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property, except such non-compliance as would not reasonably be expected to result in a Material Adverse Effect.
Section 3.08 Agreements. No Company is a party to or has violated any agreement, instrument or other document to which it is a party, or is subject to any corporate or other constitutional restriction, or any restriction (including under its Organizational Documents) to which it is subject, that has resulted, or would reasonably be expected to result, in a Material Adverse Effect.
Section 3.09 Federal Reserve Regulations. (a) No Company is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing, buying or carrying Margin Stock.
(b) No part of the proceeds of any Credit Extension will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of, or that is inconsistent with, Regulation U or X. The pledge of the Securities Collateral pursuant to the Pledge Agreement does not violate such regulations.
Section 3.10 Investment Company Act. No Company is an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
Section 3.11 Use of Proceeds(a). (a) The Borrower will use the proceeds of the Loans for general corporate purposes, including (i) (x) with respect to the Initial Term Loans, to reimburse the Sponsor for payments previously made by it or its Affiliates in connection with the acquisition of the Collateral Vessels as of the Closing Date, (y) with respect to the Tranche 8 Loans, to acquire Venture Manatee or to reimburse the Sponsor for payments previously made by it or its Affiliates in connection with the acquisition of the Venture Manatee, and (z) with respect to the Tranche 9 Loans, to acquire Venture Venice or to reimburse the Sponsor for payments previously made by it or its Affiliates in connection with the acquisition of the Venture Venice, (ii) with respect to any Loan, (x) to finance the Transactions and to pay fees and expenses in connection therewith, (y) to fund the Debt Service Reserve Account, and (z) to fund the Operating Expense Reserve Account.
Section 3.12 Taxes. Each Company has (a) timely filed or caused to be timely filed all U.S. federal and material state, local, non-U.S. and other Tax Returns required to have been filed by it and (b) duly and timely paid or caused to be duly and timely paid all material Taxes due and payable by it and all assessments received by it, except (i) Taxes that are being contested in good faith by appropriate proceedings and for which such Company has set aside on its books adequate reserves in accordance with GAAP or (ii) Taxes the nonpayment of which would not reasonably be expected to result in a Material Adverse Effect. Each Company has made adequate provision in accordance with GAAP for all Taxes not yet due and payable. No proposed or pending tax assessments, deficiencies, audits or other proceedings have resulted, or would reasonably be expected to result in, a Material Adverse Effect.
Section 3.13 No Material Misstatements. As of the Closing Date, the Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which they or any of their respective Subsidiaries are subject, and all other matters known to any Loan Party, that would reasonably be expected to result in a Material Adverse Effect. Except as otherwise disclosed in writing, none of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party to the Facility Agent or any Lender in connection with any Loan Document or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), including any Compliance Certificate, when taken as a whole, contains as of the Closing Date any untrue statement of material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect; provided that, with respect to projected financial information and other forward looking information, each Loan Party represents only that such information was based on good faith estimates and assumptions believed by management of the Borrower to be reasonable at the time made in light of the legal and factual circumstances then applicable to the Transactions, it being recognized by the Lenders that such projections and pro forma financial information as they relate to future events are not to be viewed as fact and that actual results during the period or periods covered by such projections and pro forma financial information may differ from the projected results set forth therein by a material amount.
Section 3.14 Labor Matters. There are no strikes, lockouts or slowdowns against any Company pending or, to the knowledge of the Loan Parties, threatened that have resulted in, or would reasonably be expected to result in, a Material Adverse Effect. The hours worked by and payments made to employees of any Company have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other applicable Legal Requirement dealing with such matters in any manner that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect. All payments due from any Company, or for which any claim may be made against any Company, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Company, except to the extent that the failure to do so has not resulted in, and would not reasonably be expected to result in, a Material Adverse Effect.
Section 3.15 Solvency. Immediately after the consummation of the Transactions to occur on the Initial Borrowing Date and immediately following the making of each Credit Extension, and after giving effect to the application of the proceeds of each Credit Extension, the Borrower and its Subsidiaries, on a consolidated basis, are Solvent.
Section 3.16 Employee Benefit Plans. (a) Except as would not reasonably be expected to result in a Material Adverse Effect, none of the Companies or any of their ERISA Affiliates maintains, contributes to, or is obliged to contribute to (or during the preceding six years maintained, contributed to or had an obligation to contribute to) any Pension Plan that is subject to the provisions of Title IV of ERISA or any Multiemployer Plan.
(b) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) the Companies and each of their ERISA Affiliates are in compliance with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, with respect to all Employee Benefit Plans, (ii) each Employee Benefit Plan complies, and is operated and maintained in compliance, with its terms and all applicable Legal Requirements, including the applicable provisions of ERISA and the Code and the regulations thereunder and (iii) each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS (or an opinion letter or determination letter will be applied for during the applicable remedial amendment period) and nothing has occurred which is reasonably likely to prevent, or cause the loss of, such qualification.
(c) Except in relation to (i) any arrangement which provides benefits on death which are wholly insured and (ii) the UK Pension Plan, none of the Companies or their Affiliates is, or has at any time in the past six years been, an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) in relation to any UK registered occupational pension scheme (as defined in the Pension Schemes Act 1993) which is a defined benefit pension plan.
(d) No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect.
(e) There are no actions, suits or claims pending against or involving an Employee Benefit Plan (other than routine claims for benefits) or, to the knowledge of any Loan Party, threatened, which would reasonably be expected to result in a Material Adverse Effect.
(f) There is no (i) ongoing investigation by the U.K. Pensions Regulator (and no warning notice has been issued by the U.K. Pensions Regulator to the Borrower or any Vessel Owner Guarantor) which may lead to the issue of a Financial Support Direction or a Contribution Notice or (ii) Financial Support Direction or Contribution Notice that has been issued, to Borrower or any Vessel Owner Guarantor, imposing an aggregate liability with respect to the UK Pension Plan which has or would reasonably be expected to have a Material Adverse Effect.
(g) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) each Non-U.S. Plan has been maintained in compliance with its terms and with the requirements of any and all applicable Legal Requirements and has been maintained, where required, in good standing with applicable regulatory authorities and rules applicable thereto, including all funding requirements (including, but not limited to, Part 3 of the U.K. Pensions Act 2004) and the respective requirements of the governing documents in relation to any such Non-U.S. Plan, (ii) there are no actions, suits or claims (other than routine claims for benefits) pending or, to the knowledge of any Loan Party, threatened against the Borrower or any Vessel Owner Guarantor in respect of any Non-U.S. Plan, and (iii)
no Non-U.S. Plan has been terminated or wound-up and no actions or proceedings have been taken or instituted to terminate or wind-up such a Non-U.S. Plan.
Section 3.17 Environmental Matters. Except as would not reasonably be expected to result in a Material Adverse Effect:
(i) the Companies and their businesses, operations, Real Property and Vessels are in compliance with all applicable Environmental Laws, and none of the Companies have any material liability under, any applicable Environmental Law or relating to any Environmental Claim;
(ii) the Companies have obtained all Environmental Permits required for the conduct of their businesses and operations, and their ownership, lease, operation and use of any Real Property and Vessel, under all applicable Environmental Laws. The Companies are in compliance with the terms and conditions of such Environmental Permits, and all such Environmental Permits are valid and in good standing;
(iii) there has been no Release or threatened Release or any handling, management, generation, treatment, storage or disposal of Hazardous Materials by any Company or, to the knowledge of the Loan Parties, by any other Person on, at, under or from any Real Property or Vessel, or facility presently or formerly owned, leased or operated by any of the Companies or their predecessors in interest, or at any other location that has resulted in, or is reasonably likely to result in an Environmental Claim against any of the Companies or otherwise related to any Real Property or the operation of any Vessel;
(iv) there is no Environmental Claim pending or, to the knowledge of the Loan Parties, threatened against any of the Companies relating to any Real Property or Vessel currently or formerly owned, leased or operated by any of the Companies or relating to the operations of any of the Companies, and, to the knowledge of the Loan Parties, there are no actions, activities, circumstances, conditions, events or incidents that are reasonably likely to form the basis of such an Environmental Claim;
(v) no Real Property, Vessel or facility owned, operated or leased by the Companies and, to the knowledge of the Loan Parties, no Real Property or facility formerly owned, operated or leased by any of the Companies or any of their predecessors in interest is (i) listed or, to the knowledge of the Loan Parties, proposed for listing on the National Priorities List as defined in and promulgated pursuant to CERCLA or (ii) included on any similar list maintained by any Governmental Authority that indicates that any Company has or may have an obligation to undertake investigatory or remediation obligations under applicable Environmental Laws; and
(vi) no Lien has been recorded or threatened under any Environmental Law with respect to any Real Property, Vessel or any other vessel or property of the Companies.
Section 3.18 Insurance. Schedule 5.04 sets forth a true, complete and accurate description in reasonable detail of all Required Insurance. Each Loan Party (i) has insurance in such amounts and covering such risks and liabilities as are customary for companies of a similar size engaged in similar businesses in similar locations and (ii) maintains, or causes to be maintained, the Required Insurance. All insurance (including Required Insurance) maintained by each Loan Party is in full force and effect, all
premiums due have been duly paid, no Loan Party has received written notice of violation, invalidity, or cancellation thereof. Each Collateral Vessel owned by a Loan Party and the use and operation thereof comply in all material respects with the Required Insurance, and there exists no material payment or other material default under any such Required Insurance.
Section 3.19 Security Documents. (a)(i) The Pledge Agreement, upon execution and delivery thereof by the parties thereto, is effective to create in favor of the Security Trustee for the benefit of the Secured Parties, legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) Liens on, and security interests in, the Pledge Agreement Collateral and (x) when financing statements in appropriate form are filed in the relevant filing offices identified in the Pledge Agreement, Collateral with respect to which a security interest may be perfected by the filing of a financing statement or (y) upon the taking of possession or control by the Security Trustee of the Pledge Agreement Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control has been given to the Security Trustee to the extent possession or control by the Security Trustee is required by each Security Document), the Liens created by the Pledge Agreement in such Pledge Agreement Collateral shall constitute fully perfected security interests in each case subject to no Liens other than Permitted Liens.
(b) Each Account Control Agreement is effective to create “control” by the Security Trustee over each Earnings Account held at the Security Trustee.
(c) Each Vessel Mortgage is effective to create, in favor of the Security Trustee, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) a first priority preferred ship mortgage or first priority statutory mortgage, as applicable, Lien on the Collateral Vessel subject to such Vessel Mortgage and the proceeds thereof, subject only to Permitted Liens, and when the Vessel Mortgage is recorded or registered in accordance with the laws of the relevant Acceptable Flag Jurisdiction (or, in the case of any Vessel Mortgage executed and delivered after the date thereof in accordance with the provisions of Section 5.10, when such Vessel Mortgage is recorded or registered in accordance with the laws of the relevant Acceptable Flag Jurisdiction), such Vessel Mortgage shall constitute a fully perfected preferred ship mortgage Lien on the Collateral Vessel subject to such Vessel Mortgage, in each case, subject to no Liens other than Permitted Liens.
(d) Each Security Document delivered pursuant to Section 5.11 will, upon execution and delivery thereof, be effective to create in favor of the Security Trustee, for the benefit of the Secured Parties, a legal, valid and enforceable (except as such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law) Lien on, and security interest in, all of the Borrower’s and Vessel Owner Guarantors’ right, title and interest in and to the Collateral thereunder, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable Legal Requirements and (ii) upon the taking of possession or control by the Security Trustee of such Collateral with respect to which a security interest may be perfected only by possession or control (which such possession or control has been given to the Security Trustee to the extent required by any Security Document), the Liens in favor of the Security Trustee created under such Security Document will constitute perfected security interests in, all right, title and
interest of the Borrower and the Vessel Owner Guarantors in such Collateral, in each case subject to no Liens other than Permitted Liens.
Section 3.20 Anti-Terrorism Law; Sanctions; Foreign Corrupt Practices Act.
(a) No Company, none of its directors or officers, and, to the knowledge of the Loan Parties, none of its Affiliates or employees, is in violation of any Legal Requirements relating to terrorism or money laundering, including Anti-Money Laundering Laws (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”).
(b) No Company, none of its directors or officers, and to the knowledge of the Loan Parties, no Affiliate, employee or broker or other agent of any Company, where such broker or agent is acting or benefiting solely in such capacity in connection with the Credit Extensions, is (i) designated on a Sanctions list of designated Persons maintained by a Sanctions Authority, including the Specially Designated Nationals and Blocked Persons List maintained by OFAC, or where relevant under applicable Sanctions, owned or controlled (directly or indirectly) by such designated Persons, or (ii) domiciled or having its main place of business in, or incorporated under the laws of a country, region or territory that is, or whose government is, the subject of comprehensive Sanctions (at the date of this Agreement, Cuba, Iran, North Korea, the Crimea region of Ukraine, the so-called Donetsk People’s Republic, or the so-called Luhansk People’s Republic, all of the foregoing a “Sanctioned Jurisdiction”) (any such Person in (i) or (ii) a “Sanctioned Person”). The Borrower will not directly or knowingly indirectly use the proceeds of the Credit Extensions or lend, contribute or otherwise make available such proceeds to any Sanctioned Person, for the purpose of financing the activities (i) of or with any Sanctioned Person, (ii) in any Sanctioned Jurisdiction, or (iii) otherwise in violation of applicable Sanctions, in each case if such activities would result in a violation of applicable Sanctions by any party to this Agreement.
(c) No Company nor any director or officer of any Company, and to the knowledge of the Loan Parties, no agent, employee nor Affiliate of any Company, has, in the course of its actions for, or on behalf of, any Company, directly or indirectly, in the past five years in violation of applicable Anti-Corruption Laws (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity or to influence official action, (ii) made or taken an act in furtherance of any unlawful payment to any foreign or domestic government official or employee, (iii) made or taken in an act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit to any foreign or domestic government official or employee, (iv) is or has engaged in any activity, practice, or conduct proscribed under any provision of any Anti-Corruption Laws or (v) used the proceeds of any Loans in a manner or for a purpose prohibited by any Anti-Corruption Laws. The Borrower has instituted and maintains policies and procedures designed to ensure compliance by each Company with the foregoing. No Company is or has in the last 5 years been notified or otherwise been made aware that it is the subject of any enforcement proceedings or any investigation or inquiry by any governmental, administrative, or regulatory body regarding any offense or alleged offense under any Anti-Corruption Laws, and, to the knowledge of any Loan Party, no such investigation, inquiry, or proceedings have been threatened or are pending.
(d) Each Company and, to the best of its knowledge, its Affiliates, directors, officers and employees is in compliance with Sanctions in all material respects.
(e) Each Loan Party will institute and maintain policies and procedures designed to promote compliance by each member of the group with applicable Sanctions.
(f) For the purposes of identifying the contracting party and beneficial owner pursuant to any applicable Anti-Money-Laundering Laws, the Borrower confirms that it is acting for its own account and not for the account of any other Person.
(g) With regard to any applicable Anti-Money-Laundering Laws, each Vessel Owner Guarantor confirms that it provides its guarantee and any Security for the benefit of the Borrower.
The representations in this Section 3.20 apply, with respect to any applicable Lender, only to the extent they do not result in a violation of or conflict with any applicable blocking or anti-boycott laws (including, without limitation, the Council Regulation (EC) No 2271/96 and/or section 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) (in connection with section 4 paragraph 1 no. 3 of the German Foreign Trade and Payments Act (Außenwirtschaftsgesetz))).
Section 3.21 Concerning Collateral Vessels.
(a) The name, record owner (which record owner is a Loan Party), official number, jurisdiction of registration, build month and year and flag (which shall be an Acceptable Flag Jurisdiction) of each Collateral Vessel as of the Closing Date is set forth on part 1 of Schedule 1.01(a). Each Collateral Vessel owned by a Loan Party is operated in compliance with all applicable Legal Requirements in all material respects.
(b) Each Loan Party which owns, charters by demise or operates one or more Collateral Vessels is qualified in all material respects to own, lease or operate such Collateral Vessels under the laws of its jurisdiction of incorporation and flag jurisdiction of such Collateral Vessel.
(c) Each Collateral Vessel is classed with an Approved Classification Society, free of any overdue recommendations, other than as permitted under the Vessel Mortgages related thereto.
(d) As of the Closing Date, there is no pending or, to the knowledge of any Loan Party, threatened condemnation, confiscation, requisition, purchase, seizure or forfeiture of, or any taking of title to, any Collateral Vessel.
(e) Each Collateral Vessel owned by a Loan Party is free and clear of all Liens other than Permitted Liens.
(f) No Collateral Vessel is a Sanctioned Ship (being a vessel which is the target of Sanctions, including by virtue of being designated, listed or otherwise identified under any Sanctions list maintained by any Sanctions Authority, or is (where relevant under applicable Sanctions) owned by a Sanctioned Person or otherwise the target of Sanctions). Each Vessel Owner Guarantor has instituted and maintains policies and procedures designed to ensure that no Collateral Vessel is used in any manner that would result in a breach of Sanctions by any Loan Party or any Lender.
Section 3.22 Form of Documentation; Citizenship.
No Loan Party is organized in any jurisdiction, and none of the Collateral Vessels owned by any Loan Party is flagged in any jurisdiction other than an Acceptable Flag Jurisdiction, and none of the Security Documents is required to be filed or registered with any Governmental Authority outside the United States or such Acceptable Flag Jurisdiction to ensure the validity of the Security Documents (except for registration or recording of each Vessel Mortgage in accordance with the Acceptable Flag Jurisdiction of the relevant Collateral Vessel) and no stamp or similar tax is required to be paid in respect of the registration of any Security Document or perfection of any security interest in the Collateral pledged thereunder.
Section 3.23 Compliance with ISM Code, ISPS Code and MARPOL. Each Collateral Vessel owned, leased or operated by a Loan Party complies with the requirements of the ISM Code, the ISPS Code and MARPOL in all material respects, including the maintenance and renewal of valid certificates pursuant thereto.
Section 3.24 Threatened Withdrawal of DOC, SMC, ISSC or IOPPC. There is no actual or, to the knowledge of the Loan Parties, threatened withdrawal of (a) any document of compliance (“DOC”) issued to an Operator in accordance with rule 13 of the ISM Code in respect of any of the Collateral Vessels (and, for these purposes, the “Operator” of a vessel shall mean the Person who is concerned with the operation of such vessel and falls within the definition of “Company” set out in rule 1.1.2 of the ISM Code), (b) safety management certificate (“SMC”) issued in respect of any of the Collateral Vessels in accordance with rule 13 of the ISM Code, (c) all other documents and data which are relevant to the safety management system and its implementation and verification or which are prepared or otherwise relevant to the compliance by the Collateral Vessel, its owner or Operator with the ISM Code which the Facility Agent may require, (d) the international ship security certificate (“ISSC”) issued pursuant to the ISPS Code in respect of any of the Collateral Vessels and all other documents and data which are relevant to the ISPS Code and its implementation and verification which the Facility Agent may require, or (e) the international oil pollution prevention certificate (“IOPPC”) issued under MARPOL and all other documents and data which are relevant to MARPOL and its implementation and verification which the Facility Agent may require.
Section 3.25 No Immunity. No Loan Party or any of their respective properties have any right of immunity on the grounds of sovereignty or otherwise from the jurisdiction of any court or from setoff or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of any jurisdiction.
Section 3.26 Pari Passu or Priority Status. The claims of the Facility Agent, the Security Trustee and the Lenders against the Borrower and the other Loan Parties under this Agreement or the other Loan Documents will rank (a) at least pari passu with the claims of (i) all unsecured creditors of the Borrower or any other Loan Party, as the case may be (other than claims of such creditors to the extent that they are statutorily preferred), and (ii) any other creditor of the Borrower and (b) senior in priority to the claims of any creditor of any Vessel Owner Guarantor (other than claims of such creditors to the extent that they are statutorily preferred).
Section 3.27 No Undisclosed Commission. There are and will be no commissions, rebates, premiums or other payments by or to or on account of any Loan Party, their shareholders or directors in connection with the Term Facility or the Transactions as a whole other than as disclosed to the Facility Agent in writing.
Section 3.28 AIF. None of the Loan Parties or any of their respective Subsidiaries is an AIF or an internal or external manager of an AIF.
Article IV
CONDITIONS TO CREDIT EXTENSIONS
Section 4.01 Conditions to Initial Credit Extension. The obligation of each Lender to fund (a) any Credit Extension of the Initial Term Loans on the Initial Borrowing Date requested to be made by
it, shall be subject to the prior or concurrent satisfaction or waiver of each of the conditions precedent set forth in this Section 4.01.
(a) Closing Date; Loan Documents. On or prior to the Initial Borrowing Date, (i) the Closing Date shall have occurred, (ii) the Borrower shall have delivered to the Facility Agent executed copies of the Loan Documents required to be in effect as of the Initial Borrowing Date, and (iii) the Borrower shall have delivered to the Facility Agent for the account of each Lender that has requested the same, a Note executed in accordance with Section 2.04 with respect to the Initial Term Loans.
(b) Corporate Documents. The Facility Agent shall have received:
(i) a certificate of the secretary, assistant secretary or an officer of each Company, the Charterer and the Sponsor, as applicable, dated the Initial Borrowing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Company, the Charterer and the Sponsor certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization or by an officer of the Company, as the case may be, (B) that attached thereto is a true and complete copy of customary powers of attorney (if any), resolutions or certificates of resolutions, board resolutions or minutes or other action from each Company, the Charterer and the Sponsor authorizing the execution, delivery and performance of the Loan Documents, the Charters and the Charter Performance Guarantees to which such Person is a party and, in the case of the Borrower, the making of the Credit Extensions hereunder, and that such powers of attorney and/or resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each director, officer or other authorized signatory executing any Loan Document or any other document delivered in connection herewith and the other Loan Documents on behalf of such Company, the Charterer and the Sponsor (together with a certificate of another director, officer or other authorized signatory as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i)); and
(ii) a certificate as to the good standing or compliance of each Company, the Charterer and the Sponsor as of a recent date and, if applicable, a “bring down” good standing certificate of each Company, the Charterer and the Sponsor as of the Initial Borrowing Date (or, in each case, local equivalent thereof), in each case, from such Secretary of State or relevant registration authority.
(c) Officer’s Certificate. The Facility Agent shall have received an Officer’s Certificate of the Borrower, dated the Initial Borrowing Date, confirming compliance with the conditions precedent set forth in this Section 4.01.
(d) Transactions, Etc.
(i) The Security Trustee, for the benefit of the Secured Parties, shall have been granted (to the extent required on the Initial Borrowing Date) (A) Liens and security interests in the Collateral (other than the Vessel Collateral) and (B) First Priority Liens on the Vessel Collateral.
(ii) Each of the Vessel Mortgages required to be recorded on the Initial Borrowing Date shall have been executed and delivered to the Security Trustee for submission to the appropriate ship registry of the applicable Acceptable Flag Jurisdiction for filing and recording (with adequate arrangements for a copy to be delivered to the Security Trustee upon filing and recordation
thereof) and all actions reasonably necessary or advisable in connection therewith (and in connection with the other Collateral) shall have been taken.
(e) Financial Statements. The Facility Agent shall have received the pro forma financial statements and projections described in Section 3.04.
(f) Opinions of Counsel. The Facility Agent shall have received, on behalf of itself, the other Agents and the Lenders favorable written opinions from (x) Latham & Watkins LLP, New York counsel for the Companies, the Charterer and the Sponsor, (y) Reed Smith LLP, English, Marshall Islands and Liberian counsel for the Loan Parties, the Charterer and the Sponsor, and (z) Conyers Dill & Pearman Limited, Bermuda counsel for the Loan Parties, in each case, in form and substance reasonably satisfactory to the Facility Agent (i) dated the Initial Borrowing Date, (ii) addressed to the Agents and the Lenders (and allowing for reliance by their permitted successors and assigns on customary terms) and (iii) covering such matters relating to the Loan Documents and the Transactions as the Facility Agent shall reasonably request.
(g) Solvency Certificate. The Facility Agent shall have received a solvency certificate in the form of Exhibit I (appropriately completed), dated the Initial Borrowing Date and signed by a Responsible Officer of the Borrower.
(h) Fees. The Agents and the Lenders shall have received all amounts due and payable under any Loan Document, the Fee Letter and the Agency Fee Letter on or prior to the Initial Borrowing Date, including all Fees and all reasonable and documented costs, expenses (including legal fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, Holland & Knight LLP, Walkers (Bermuda) Limited and other counsel to the Agents and recording taxes and fees) and other compensation and amounts required to be reimbursed or paid by the Loan Parties hereunder, under any other Loan Document, the Fee Letter and the Agency Fee Letter, in each case, to the extent invoiced at least two (2) Business Days prior to the Initial Borrowing Date.
(i) Personal Property Requirements. The Security Trustee shall have received:
(i) all certificates, agreements or instruments representing or evidencing the Securities Collateral accompanied by instruments of transfer and stock powers undated and endorsed in blank;
(ii) Reserved;
(iii) all other certificates, agreements or instruments necessary to perfect the Security Trustee’s security interest in all Equity Interests of the Borrower and each Vessel Owner Guarantor and each Deposit Account under, and to the extent required by, the Pledge Agreement, the Pledge and Security Agreement and the Share Charge, as applicable);
(iv) UCC financing statements in appropriate form for filing under the UCC in each U.S. jurisdiction as may be necessary or appropriate or, in the reasonable opinion of the Facility Agent, desirable to perfect the Liens in all Collateral created, or purported to be created, by the Security Documents; and
(v) copies, each as of a recent date, of (A) the UCC searches required by the Facility Agent, (B) tax and judgment lien searches and pending U.S. lawsuit searches or equivalent reports or searches listing all effective lien notices or comparable documents that name any Company as debtor and that are filed in the state and county jurisdictions
in which any Company is organized or maintains its principal place of business and (C) such other searches that the Facility Agent deems reasonably necessary or appropriate.
(j) Insurance. The Facility Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.04 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) (or comparable language customary in the overseas insurance market) and shall name the Security Trustee, on behalf of the Secured Parties, as additional insured (or comparable language customary in the overseas insurance market), in form and substance reasonably satisfactory to the Facility Agent.
(k) Bank Regulatory Documentation. To the extent reasonably requested at least ten (10) Business Days prior to the Initial Borrowing Date, the Borrower shall procure that the Facility Agent and the Lenders shall have received at least three (3) Business Days before the Initial Borrowing Date, all necessary and customary documentation and other information required by bank regulatory authorities, including a Beneficial Ownership Certification in relation to the Borrower, under or in respect of applicable Anti-Terrorism Laws or “know-your-customer” Legal Requirements, including the Patriot Act and the Beneficial Ownership Regulation.
(l) Reserved.
(m) Reserved.
(n) No Material Adverse Effect. On and as of the Initial Borrowing Date, no event or circumstance shall have occurred since December 31, 2025 that has had or could reasonably be expected to have a Material Adverse Effect.
(o) Vessel Appraisals. The Facility Agent shall have received a recent Vessel Appraisal of each Collateral Vessel, each prepared by two Approved Brokers selected by the Borrower in form, scope and methodology reasonably acceptable to the Security Trustee, addressed to the Security Trustee and upon which the Facility Agent, the Security Trustee and the Lenders are expressly permitted to rely; provided that, the Closing Date Appraisals shall be deemed to be acceptable for this purpose.
(p) Vessel Collateral Requirements. On or prior to Initial Borrowing Date, the Vessel Collateral Requirements (other than the Insurance Deliverables Requirements) with respect to each Loan Party (other than the Venture Manatee Owner and the Venture Venice Owner) and with respect to each Collateral Vessel shall be satisfied or the Lenders shall have waived such requirements and/or conditioned such waiver on the satisfaction of such requirements within a specific period of time, it being understood that all Lenders will be required for a waiver of such requirements with respect to such Collateral Vessels.
(q) LTV Ratio. The ratio of (x) the aggregate amount of Initial Term Loans requested to be drawn on such date to (y) the aggregate Vessel Appraisal Value of the Collateral Vessels (which, for the avoidance of doubt, excludes the Venture Manatee and the Venture Venice), shall not exceed 65%.
Section 4.02 Conditions to Tranche 8 Borrowing Date.
The obligation of each Lender to fund any Credit Extension of the Tranche 8 Loans on the Tranche 8 Borrowing Date requested to be made by it, shall be subject to the prior or concurrent satisfaction or waiver of each of the conditions precedent set forth in this Section 4.02.
(a) Promissory Notes. On or prior to the Tranche 8 Borrowing Date, the Borrower shall have delivered to the Facility Agent for the account of each Lender that has requested the same, a Note executed in accordance with Section 2.04 with respect to the Tranche 8 Term Loans.
(b) Officer’s Certificate. The Facility Agent shall have received an Officer’s Certificate of the Borrower, dated the Tranche 8 Borrowing Date, confirming compliance with the conditions precedent set forth in this Section 4.02.
(c) Transactions, Etc.
(i) The Security Trustee, for the benefit of the Secured Parties, shall have been granted (to the extent required on the Tranche 8 Borrowing Date) (A) Liens and security interests in the Collateral (other than the Vessel Collateral) and (B) First Priority Liens on the Vessel Collateral.
(ii) The Vessel Mortgage with respect to the Venture Manatee shall have been executed and delivered to the Security Trustee for submission to the appropriate ship registry of the applicable Acceptable Flag Jurisdiction for filing and recording (with adequate arrangements for a copy to be delivered to the Security Trustee upon filing and recordation thereof) and all actions reasonably necessary or advisable in connection therewith (and in connection with the other Collateral) shall have been taken.
(d) Charter; Charter Performance Guarantee. The Facility Agent shall have received a copy of the Charter and the Charter Performance Guarantee, in each case, with respect to the Venture Manatee, duly executed by the parties thereto (and either (i) in substantially the same form as the Charters and Charter Performance Guarantees in effect as of the Closing Date with respect to the other Collateral Vessels or (ii) in form and substance reasonably satisfactory to the Required Lenders).
(e) No Material Adverse Effect. On and as of the Tranche 8 Borrowing Date, no event or circumstance shall have occurred since the Closing Date that has had or could reasonably be expected to have a Material Adverse Effect.
(f) Opinions of Counsel. The Facility Agent shall have received, on behalf of itself, the other Agents and the Lenders favorable written opinions from (x) Latham & Watkins LLP, New York and English law counsel for the applicable Companies, the Charterer and the Sponsor, and (y) Reed Smith LLP, Marshall Islands and Liberian counsel for the applicable Companies, the Charterer and the Sponsor, in each case, in form and substance reasonably satisfactory to the Facility Agent (i) dated the Tranche 8 Borrowing Date, (ii) addressed to the Agents and the Lenders (and allowing for reliance by their permitted successors and assigns on customary terms) and (iii) covering such matters relating to (x) if the Tranche 8 Borrowing Date occurs before the Tranche 9 Borrowing Date, any Loan Document entered into after the Closing Date until (and including) the Tranche 8 Borrowing Date or (y) if the Tranche 8 Borrowing Date occurs after the Tranche 9 Borrowing Date, any Loan Document entered into after the Tranche 9 Borrowing Date until (and including) the Tranche 8 Borrowing Date, in each case, as the Facility Agent shall reasonably request.
(g) Fees. The Agents and the Lenders shall have received all amounts due and payable under any Loan Document on or prior to the Tranche 8 Borrowing Date, including all reasonable and documented costs, expenses (including legal fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, Holland & Knight LLP, Walkers (Bermuda) Limited and other counsel to the Agents and recording taxes and fees) and other compensation and amounts required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document, in each case, to the extent invoiced at least two (2) Business Days prior to the Tranche 8 Borrowing Date.
(h) Insurance. To the extent not previously delivered, the Facility Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.04 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) (or comparable language customary in the overseas insurance market) and shall name the Security Trustee, on behalf of the Secured Parties, as additional insured (or comparable language customary in the overseas insurance market), in form and substance reasonably satisfactory to the Facility Agent.
(i) Vessel Appraisals. The Facility Agent shall have received a recent Vessel Appraisal (dated not more than thirty (30) days prior to the Tranche 8 Borrowing Date) of the Venture Manatee, each prepared by two Approved Brokers selected by the Borrower in form, scope and methodology reasonably acceptable to the Security Trustee, addressed to the Security Trustee and upon which the Facility Agent, the Security Trustee and the Lenders are expressly permitted to rely.
(j) Vessel Collateral Requirements. On or prior to Tranche 8 Borrowing Date, the Vessel Collateral Requirements (other than the Insurance Deliverables Requirements) with respect to the Venture Manatee shall be satisfied or the Lenders shall have waived such requirements and/or conditioned such waiver on the satisfaction of such requirements within a specific period of time, it being understood that all Lenders will be required for a waiver of such requirements with respect to the Venture Manatee.
(k) LTV Ratio. On the Tranche 8 Borrowing Date, (i) the ratio of (A) the aggregate amount of Tranche 8 Loans requested to be drawn on such date to (B) the Vessel Appraisal Value of the Venture Manatee, shall not exceed 65%; and (ii) the ratio of (A) the aggregate amount of Loans outstanding as of such date (giving pro forma effect to the Borrowing of such Tranche 8 Loans) to (B) the aggregate Vessel Appraisal Value of the Collateral Vessels, shall not exceed 65%.
Section 4.03 Conditions to Tranche 9 Borrowing Date.
The obligation of each Lender to fund any Credit Extension of the Tranche 9 Loans on the Tranche 9 Borrowing Date requested to be made by it, shall be subject to the prior or concurrent satisfaction or waiver of each of the conditions precedent set forth in this Section 4.03.
(a) Promissory Notes. On or prior to the Tranche 9 Borrowing Date, the Borrower shall have delivered to the Facility Agent for the account of each Lender that has requested the same, a Note executed in accordance with Section 2.04 with respect to the Tranche 9 Term Loans.
(b) Officer’s Certificate. The Facility Agent shall have received an Officer’s Certificate of the Borrower, dated the Tranche 9 Borrowing Date, confirming compliance with the conditions precedent set forth in this Section 4.03.
(c) Transactions, Etc.
(i) The Security Trustee, for the benefit of the Secured Parties, shall have been granted (to the extent required on the Tranche 9 Borrowing Date) (A) Liens and security interests in the Collateral (other than the Vessel Collateral) and (B) First Priority Liens on the Vessel Collateral.
(ii) The Vessel Mortgage with respect to the Venture Venice shall have been executed and delivered to the Security Trustee for submission to the appropriate ship registry of the applicable Acceptable Flag Jurisdiction for filing and recording (with adequate arrangements for a copy to be delivered to the Security Trustee upon filing and recordation thereof) and all actions reasonably
necessary or advisable in connection therewith (and in connection with the other Collateral) shall have been taken.
(d) Charter; Charter Performance Guarantee. The Facility Agent shall have received a copy of the Charter and the Charter Performance Guarantee, in each case, with respect to the Venture Venice, duly executed by the parties thereto (and either (i) in substantially the same form as the Charters and Charter Performance Guarantees in effect as of the Initial Closing Date with respect to the other Collateral Vessels or (ii) in form and substance reasonably satisfactory to the Required Lenders).
(e) No Material Adverse Effect. On and as of the Tranche 9 Borrowing Date, no event or circumstance shall have occurred since the Closing Date that has had or could reasonably be expected to have a Material Adverse Effect.
(f) Opinions of Counsel. The Facility Agent shall have received, on behalf of itself, the other Agents and the Lenders favorable written opinions from (x) Latham & Watkins LLP, New York and English law counsel for the applicable Companies, the Charterer and the Sponsor, and (y) Reed Smith LLP, Marshall Islands and Liberian counsel for the applicable Companies, the Charterer and the Sponsor, in each case, in form and substance reasonably satisfactory to the Facility Agent (i) dated the Tranche 9 Borrowing Date, (ii) addressed to the Agents and the Lenders (and allowing for reliance by their permitted successors and assigns on customary terms) and (iii) covering such matters relating (x) if the Tranche 9 Borrowing Date occurs before the Tranche 8 Borrowing Date, any Loan Document entered into after the Closing Date until (and including) the Tranche 9 Borrowing Date or (y) if the Tranche 9 Borrowing Date occurs after the Tranche 8 Borrowing Date, any Loan Document entered into after the Tranche 8 Borrowing Date until (and including) the Tranche 9 Borrowing Date, in each case, to the Loan Documents as the Facility Agent shall reasonably request.
(g) Fees. The Agents and the Lenders shall have received all amounts due and payable under any Loan Document on or prior to the Tranche 9 Borrowing Date, including all reasonable and documented costs, expenses (including legal fees and expenses of Skadden, Arps, Slate, Meagher & Flom LLP, Holland & Knight LLP, Walkers (Bermuda) Limited and other counsel to the Agents and recording taxes and fees) and other compensation and amounts required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document, in each case, to the extent invoiced at least two (2) Business Days prior to the Tranche 9 Borrowing Date.
(h) Insurance. To the extent not previously delivered, the Facility Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.04 and the applicable provisions of the Security Documents, each of which shall be endorsed or otherwise amended to include a “standard” or “New York” lender’s loss payable or mortgagee endorsement (as applicable) (or comparable language customary in the overseas insurance market) and shall name the Security Trustee, on behalf of the Secured Parties, as additional insured (or comparable language customary in the overseas insurance market), in form and substance reasonably satisfactory to the Facility Agent.
(i) Vessel Appraisals. The Facility Agent shall have received a recent Vessel Appraisal (dated not more than thirty (30) days prior to the Tranche 9 Borrowing Date) of the Venture Venice, each prepared by two Approved Brokers selected by the Borrower in form, scope and methodology reasonably acceptable to the Security Trustee, addressed to the Security Trustee and upon which the Facility Agent, the Security Trustee and the Lenders are expressly permitted to rely.
(j) Vessel Collateral Requirements. On or prior to Tranche 9 Borrowing Date, the Vessel Collateral Requirements (other than the Insurance Deliverables Requirements) with respect to the
Venture Venice shall be satisfied or the Lenders shall have waived such requirements and/or conditioned such waiver on the satisfaction of such requirements within a specific period of time, it being understood that all Lenders will be required for a waiver of such requirements with respect to the Venture Venice.
(k) LTV Ratio. On the Tranche 9 Borrowing Date, (i) the ratio of (A) the aggregate amount of Tranche 9 Loans requested to be drawn on such date to (B) the Vessel Appraisal Value of the Venture Venice, shall not exceed 65%; and (ii) the ratio of (A) the aggregate amount of Loans outstanding as of such date (giving pro forma effect to the Borrowing of such Tranche 9 Loans) to (B) the aggregate Vessel Appraisal Value of the Collateral Vessels, shall not exceed 65%.
Section 4.04 Conditions to All Credit Extensions. The obligation of each Lender to make any Credit Extension (including the initial Credit Extensions on the Initial Borrowing Date) shall be subject to, and to the satisfaction of, each of the conditions precedent set forth below.
(a) Notice. The Facility Agent shall have received a Borrowing Request as required by Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.03) if Loans are being requested.
(b) No Default. At the time of, and after giving effect to the making of, any Credit Extension and the use of proceeds thereof, no Default shall have occurred and be continuing.
(c) Representations and Warranties. Each of the representations and warranties made by any Loan Party set forth in Article III or in any other Loan Document shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of the date of such Credit Extension with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects (or true and correct in all respects in the case of representations and warranties qualified by materiality or Material Adverse Effect) on and as of such earlier date).
Each of the delivery of a Borrowing Request and the acceptance by the Borrower of the proceeds of such Credit Extension shall constitute a representation and warranty by the Borrower and each other Loan Party that on the date of such Credit Extension (both immediately before and after giving effect to such Credit Extension and the application of the proceeds thereof) the conditions contained in this Section 4.02 have been satisfied.
Article V
AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees with the Facility Agent, the Security Trustee and each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made), each Loan Party will, and each Loan Party will cause each of its Subsidiaries to:
Section 5.01 Financial Statements, Reports, etc.. Furnish to the Facility Agent for distribution to the Lenders:
(a) Annual Reports.
(i) Within 120 days after the end of each fiscal year of Borrower, the audited consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal year and related consolidated statements of operations, cash flows and stockholders’ equity for such fiscal year, and notes thereto, accompanied by an opinion of an independent public accountant of recognized national standing reasonably satisfactory to the Facility Agent (which opinion shall not be qualified as to scope or contain any going concern or other like qualification (other than resulting from (x) the impending maturity of any Indebtedness or (y) any actual or prospective breach of any financial covenant contained in any Indebtedness)), stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower and its Subsidiaries as of the dates and for the periods specified in accordance with GAAP;
(ii) Within 120 days after the end of each fiscal year of Charterer, the audited consolidated balance sheet of Charterer as of the end of such fiscal year and related consolidated statements of operations, changes in equity and cash flows for such fiscal year, and notes thereto, accompanied by an opinion of an independent public accountant of recognized national standing reasonably satisfactory to the Facility Agent (which opinion shall not be qualified as to scope or contain any going concern or other like qualification (other than resulting from (x) the impending maturity of any Indebtedness or (y) any actual or prospective breach of any financial covenant contained in any Indebtedness)), stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Charterer as of the dates and for the periods specified in accordance with GAAP;
(b) Quarterly Reports. Within 60 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, commencing with the fiscal quarter ending September 30, 2026, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal quarter, the related consolidated statements of operations, and stockholders equity for such fiscal quarter and for the then elapsed portion of the fiscal year, and the related consolidated statement of cash flow for the then elapsed portion of the fiscal year accompanied by a certificate of a Responsible Officer of the Borrower stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of the Borrower and its Subsidiaries as of the date and for the periods specified in accordance with GAAP consistently applied, and on a basis consistent with audited financial statements referred to in clause (a)(i) of this Section 5.01, subject to normal year-end audit adjustments and the absence of footnotes;
(c) Compliance Certificates. (i) Concurrently with any delivery of financial statements under Sections 5.01(a) and (b), a Compliance Certificate certifying that no Default exists or, if a Default does exist and is continuing, specifying in reasonable detail the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, and (ii) concurrently with any delivery of financial statements under Section 5.01(a) or (b), a Compliance Certificate setting forth (A) a list of all Collateral Vessels as of the end of such fiscal year or fiscal quarter, as the case may be, (B) computations in reasonable detail and reasonably satisfactory to the Facility Agent demonstrating compliance with the Financial Covenants as at the end of such fiscal year or fiscal quarter, as the case may be, (C) the Vessel Appraisals required to be delivered pursuant to Section 5.13, and (D) account balance information in respect of the Cash Collateral Accounts;
(d) Beneficial Ownership Regulation. Promptly following any reasonable request by the Facility Agent therefor, the Borrower shall provide necessary and customary information and documentation reasonably requested by the Facility Agent or any Lender (which shall make such
request through the Facility Agent) for purposes of compliance with the Beneficial Ownership Regulation;
(e) Reserved;
(f) Reserved;
(g) Reserved;
(h) Environmental Information. At any time that any Company has breached the representation and warranty in Section 3.17, is not in compliance with Section 5.09(a) or has delivered a notice pursuant to Section 5.02(e), provide, at the Borrower’s sole expense and at the request of the Facility Agent, copies of the reports of the United States Coast Guard, Environmental Protection Agency and National Transportation Safety Board, and of any applicable state or foreign agency, if and when issued, concerning such breach, noncompliance or notice, in each case, to the extent that such reports are in the possession or control of any Company and disclosure of such reports to the Facility Agent is not prohibited by applicable law, regulation, court order or any binding confidentiality obligation owed to a Governmental Authority or other third party; and
(i) Sanctioned Jurisdiction Voyages. As soon as possible in advance of any voyage of a Collateral Vessel to or from a Sanctioned Jurisdiction, the Borrower (on behalf of the relevant Vessel Owner Guarantor) shall provide the Facility Agent with such details and/or documents as any Lender may reasonably require and any license or other permission obtained by a Sanctions Authority and/or other public authority;
(j) Other Information. Promptly, from time to time, such other customary information and documentation reasonably requested by the Facility Agent or any Lender for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations including the Patriot Act and the Beneficial Ownership Regulation, regarding the operations, business affairs and financial condition of the Companies, or compliance with the terms of any Loan Document, or the environmental condition of any Vessel or Real Property, as the Facility Agent, the Security Trustee or any Lender may reasonably request. Each Lender acknowledges that the Facility Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to in this Section 5.01, and in any event shall have no responsibility to monitor compliance by any Loan Party with any such request for delivery, and each Lender shall be solely responsible for requesting delivery (from the Facility Agent) of or maintaining its copies of such documents.
Documents required to be delivered pursuant to Section 5.01(a) and/or Section 5.01(b) may be delivered electronically and, if so delivered shall be deemed furnished and delivered on the date such information (x) has been posted on the SEC website accessible through http://www.sec.gov/edgar/searchedgar/webusers.htm or such successor webpage of the SEC thereto and (y) other than with respect to documents to be delivered pursuant to Section 5.01(g), the Facility Agent shall have been notified thereof, such notification which shall be deemed to be received by the Facility Agent with respect to the documents required to be delivered pursuant to Section 5.01(a) and/or 5.01(b) upon delivery of the Compliance Certificate pursuant to Section 5.01(c); provided that, upon request of the Facility Agent (acting on the instructions of the Required Lenders), the Borrower shall deliver copies (by e-mail or otherwise at Borrower’s election under Section 11.01) of such documents to the Facility Agent until a written request to cease delivering copies is given by the Facility Agent (acting on the instructions of the Required Lenders). Notwithstanding anything to the contrary herein, in every instance, the Borrower shall
be required to provide copies of the Compliance Certificate required by Section 5.01(c) to the Facility Agent and each of the Lenders and no such public filings shall be deemed to be a substitute therefor.
The Borrower and each Lender acknowledge that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through a Platform, any document or notice that the Borrower has indicated contains Material Non-Public Information shall not be posted on that portion of the Platform designated for such Public Lenders. The Borrower agrees to clearly designate all information provided to the Facility Agent by or on behalf of the Borrower which is suitable to make available to Public Lenders. If the Borrower has not indicated whether a document or notice delivered pursuant to this Section 5.01 contains Material Non-Public Information, the Facility Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive Material Non-Public Information with respect to the Borrower, the Vessel Owner Guarantors and their respective securities.
Section 5.02 Litigation and Other Notices. Furnish to the Facility Agent and each Lender written notice of the following promptly (and, in any event, within five Business Days of obtaining knowledge thereof):
(a) any Default or Event of Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or otherwise by or before any Governmental Authority, (i) against any Company that has had, or would reasonably be expected to result in, a Material Adverse Effect, (ii) with respect to any Loan Document or (iii) with respect to any of the other Transactions;
(c) any event, change, effect, development, circumstance, or condition that has resulted, or would reasonably be expected to result, in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect;
(e) the receipt by any Company of any notice of any Environmental Claim, violation by any Company of Environmental Law, or knowledge by any Company that there exists a condition that has resulted, or would reasonably be expected to result, in an Environmental Claim or a violation of or liability under, any Environmental Law, except for Environmental Claims, violations, conditions and liabilities the consequence of which would not be reasonably expected to result in a Material Adverse Effect;
(f) (i) the incurrence of any Lien (other than Permitted Liens) on, or claim assessed against, all or any material portion of the Collateral or (ii) the occurrence of any other event which would reasonably be expected to materially and adversely affect all or a material portion of the Collateral;
(g) the occurrence of any Casualty Event in respect of any Collateral Vessel;
(h) any damage or injury caused by or to a Collateral Vessel in excess of $10,000,000; and
(i) any material default or notices under any Permitted Charter.
Notwithstanding the foregoing, any Loan Party shall have the right to omit from any notification required under this Section 5.02 any information that it reasonably believes upon the advice of counsel should be excluded to reasonably preserve any attorney-client privilege.
Section 5.03 Existence; Businesses and Properties. (a) Do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and all rights, franchises, licenses, privileges, permits and Governmental Approvals, except (x) as otherwise permitted under the Loan Documents or (y) other than in the case of the legal existence of any Loan Party, to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
(b) Except as otherwise permitted under any Loan Document, do or cause to be done all things necessary to obtain, maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material tangible properties used or useful in the business of the Loan Parties and from time to time will make, or cause to be made, all appropriate repairs, renewals and replacements thereof.
Section 5.04 Insurance. The Borrower and each of the Vessel Owner Guarantors undertakes with each Secured Party to comply with the insurance requirements set forth in Schedule 5.04 (the “Insurance Requirements Schedule”). The Borrower and each Vessel Owner Guarantor shall maintain, or cause to be maintained, all obligatory insurances in accordance with the Insurance Requirements Schedule and shall otherwise comply with the covenants and obligations set forth therein. The Facility Agent, with the consent of the Required Lenders, may approve deviations from the Insurance Requirements Schedule from time to time in writing (such approval not to be unreasonably withheld).
Section 5.05 Obligations and Taxes. (a) Pay and discharge promptly when due all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful material claims for labor, services, materials and supplies or otherwise that, if unpaid, might give rise to a Lien (other than a Permitted Lien) upon such properties or any part thereof; provided that, such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the applicable Company shall have set aside on its books adequate reserves or other appropriate provisions with respect thereto in accordance with GAAP.
(b) Timely file all federal, state, local, non-U.S. and other Tax Returns required to be filed by it.
Section 5.06 Employee Benefits. (a) Comply with all applicable Legal Requirements, including the applicable provisions of ERISA, those relating to any Non-U.S. Plan and the Code, with respect to all Employee Benefit Plans and, as applicable, all Non-U.S. Plans, except where such non-compliance would not be reasonably expected to result in a Material Adverse Effect and (b) furnish to the Facility Agent, upon request, copies of (i) the most recent actuarial valuation report for each Non-U.S. Plan, (ii) all notices received by any Company or any of its Subsidiaries from any governmental agency concerning an ERISA Event, (iii) such other information, documents or governmental reports or filings related to any Non-U.S. Plan as the Facility Agent shall reasonably request, (iv) any Financial Support Direction or Contribution Notice received by Borrower or a Vessel Owner Guarantor, and (v) any warning notice or other document or letter received by Borrower or a Vessel Owner Guarantor from the
U.K. Pensions Regulator, that may lead to the issue of a Financial Support Direction or a Contribution Notice.
(b) Promptly upon becoming aware of it, notify the Facility Agent of (i) any investigation or proposed investigation by the U.K. Pensions Regulator which may lead to the issue of a Financial Support Direction or a Contribution Notice to it or any of its Subsidiaries in respect of the UK Pension Plan, (ii) the issue of a Financial Support Direction or a Contribution Notice to it or any of its Subsidiaries in respect of the UK Pension Plan, (iii) any notification by the trustees of the UK Pension Plan to it or any of its Subsidiaries that a debt has become, or will become, payable in respect of the UK Pension Plan pursuant to section 75 of the Pensions Act 1995, and (iv) any notification by the trustees of the UK Pension Plan to it or any of its Subsidiaries of any increase in the contributions due to the UK Pension Plan that has resulted, or would be reasonably likely to result in, a Material Adverse Effect.
(c) Ensure that neither it nor any of its Subsidiaries will take any action in relation to the UK Pension Plan that would reasonably be expected to have a Material Adverse Effect, including (without limitation) winding-up or causing the winding-up of the UK Pension Plan.
Section 5.07 Maintaining Records; Access to Properties and Inspections. Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all Legal Requirements are made of all dealings and transactions in relation to its business and activities. Each Loan Party will permit any representatives designated by the Facility Agent and the Security Trustee upon five (5) Business Days’ advance written notice, during normal business hours, and not more than twice during any fiscal year of the Borrower (unless an Event of Default exists, in which case no such limitations shall apply) to board the Collateral Vessels and visit and inspect the financial records and the property of such Loan Party and to make extracts from and copies of such financial records, and permit any representatives designated by the Facility Agent and the Security Trustee to discuss the affairs, finances, accounts and condition of any Loan Party with the officers and employees thereof and advisors thereof (including independent accountants thereof); provided that, (a) no more than two (2) such representatives shall be permitted aboard any Collateral Vessel at any time, (b) each such representative shall be appropriately insured against personal injury sustained aboard a Collateral Vessel, and (c) such inspection shall not unreasonably interfere with the operation and commercial employment of any Collateral Vessel, including by requiring a deviation or causing a breach of any charter, and (d) nothing in this Section 5.07 shall limit the rights of the Facility Agent and the Security Trustee, or the obligations of the Loan Parties, under Section 5.13.
Section 5.08 Use of Proceeds. Use the proceeds of the Loans only for the purposes set forth in Section 3.11.
Section 5.09 Compliance with Environmental Laws and other Legal Requirements.
(a) Comply, and use commercially reasonable efforts to cause all third party lessees and other Persons occupying its properties to comply, with all Environmental Laws applicable to its operations and properties; obtain and renew all Environmental Permits necessary for its operations and properties; and conduct any remedial action required by Environmental Laws; provided that, no Company shall be required to take any of the foregoing actions in this Section 5.09 to the extent that the failure to do so would not reasonably be expected to result in a Material Adverse Effect.
(b) Comply with all other Legal Requirements of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property, except for such non-compliance as would not reasonably be expected to have a Material Adverse Effect.
(c) Ensure, and cause each other Loan Party to, ensure that any scrapping of a Collateral Vessel carried out while such Collateral Vessel is owned and controlled by the Borrower or such other Loan Party shall be conducted in compliance with Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC (Text with EEA relevance) and the Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009, in each case, as supplemented with future guidelines in connection with such regulation or convention, as applicable, and to the extent required by laws of the Acceptable Flag Jurisdiction of registry of such Collateral Vessel. Each Vessel Owner Guarantor that owns a Collateral Vessel shall use reasonable efforts to obtain and to maintain a Class-approved Inventory of Hazardous Materials from an Approved Classification Society.
Section 5.10 Reserved.
Section 5.11 Security Interests; Further Assurances. (a) Promptly upon the reasonable request of the Facility Agent or the Security Trustee, at the sole cost and expense of the Loan Parties, (i) execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office or registry, any document or instrument supplemental to or confirmatory of the Security Documents necessary or appropriate (or, upon the reasonable request of the Facility Agent or the Security Trustee or any Lender, desirable) for the continued validity, enforceability, perfection and priority of the Liens on the Collateral intended to be covered by the Security Documents, subject to no other Liens except Permitted Liens, or obtain any consents or waivers as may be necessary, customary or appropriate in connection therewith and (ii) without limiting the generality of the foregoing, execute, if required, and file, or cause to be filed, such financing or continuation statements under the UCC, or amendments thereto, such amendments or supplements to the Vessel Mortgages (including any amendments required to maintain the Liens granted by such Vessel Mortgages), and such other instruments or notices, as may be reasonably necessary, or that the Facility Agent or the Security Trustee may reasonably require (subject to any limitations that may be set forth in the Security Documents), to protect and preserve the Liens granted or purported to be granted by the Security Documents.
(b) At the reasonable written request of any counterparty to a Bank Product Agreement entered into after the Initial Borrowing Date, the applicable Loan Party shall promptly execute an amendment to each Vessel Mortgage confirming that the obligations under such Bank Product Agreement are Secured Obligations under each Vessel Mortgage, and cause the same to be promptly and duly recorded, and such amendment shall be in form and substance reasonably satisfactory to the Facility Agent.
Section 5.12 Certain Information Regarding the Loan Parties. Furnish thirty (30) days prior (or such shorter period acceptable to the Facility Agent in its sole discretion) written notice to the Facility Agent of any change (a) in any Loan Party’s legal name, (b) in the location of any Loan Party’s chief executive office or registered office, (c) in any Loan Party’s organizational structure, (d) in any Loan Party’s Federal Taxpayer Identification number or organizational identification number, if any, (e) in any Loan Party’s jurisdiction of incorporation or organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or organizing in any other jurisdiction), or (f) any change in the Acceptable Flag Jurisdiction of a Collateral Vessel to a different Acceptable Flag Jurisdiction. Each Loan Party agrees not to effect any change referred to in the immediately preceding sentence unless, within five Business Days after such change (or such longer period acceptable to the Facility Agent in its sole discretion), all filings have been made under the UCC or otherwise that are required (i) for the Security Trustee to maintain the validity, enforceability, perfection
and priority of the security interest of the Security Trustee for the benefit of the Secured Parties in the Collateral, if applicable, and (ii) in the case of a Collateral Vessel, to ensure that the Vessel Collateral Requirements remain satisfied with respect to such Collateral Vessel. Each Loan Party shall promptly provide the Facility Agent with certified Organizational Documents reflecting any of the changes described in the first sentence of this Section 5.12.
Section 5.13 Vessel Appraisals. The Borrower agrees that the Security Trustee and the Facility Agent (and their respective agents, representatives and consultants) shall be permitted to obtain from time to time Vessel Appraisals by Approved Brokers of the Collateral Vessels (and related assets); provided that, (i) the Borrower shall deliver Vessel Appraisals on a semi-annual basis with the Compliance Certificates delivered pursuant to Section 5.01(c) in connection with the fiscal quarters ending on or nearest to June 30 and December 31 of each fiscal year of Borrower, and dated no earlier than thirty (30) days prior to the date on which such Compliance Certificates are delivered, (ii) other than the semi-annual Vessel Appraisals delivered by the Borrower in accordance with Section 5.01(c), the Security Trustee and the Facility Agent shall only be permitted to obtain two (2) Vessel Appraisals in the aggregate for each Collateral Vessel at the Borrower’s expense in any twelve (12) month period and (iii) during the existence and continuation of an Event of Default, there shall be no limit on the number of additional Vessel Appraisals of each Collateral Vessel that the Security Trustee and the Facility Agent may obtain at the Borrower’s expense in any 12 month period; provided further that, such Vessel Appraisals shall not be utilized in calculating the LTV Ratio for any purposes hereunder (including, for the avoidance of doubt, Section 6.10).
None of the Security Trustee, the Facility Agent and the Lenders shall have any duty to any Loan Party to make any appraisal, nor to share any results of any such appraisal or report obtained pursuant to clause (ii) or clause (iii) above with any Loan Party. Each of the Loan Parties acknowledges that all appraisals and reports described in this Section 5.13 are obtained by the Security Trustee, the Facility Agent and the Lenders for their purposes and the Borrower shall not be entitled to rely upon them.
Section 5.14 Reserved.
Section 5.15 Interest Rate Hedging. The Borrower shall, no later than 45 days after the Closing Date, enter into (including by way of amendment, assignment, transfer, novation or conversion of any existing Hedging Agreement), and thereafter maintain in full force and effect at all times on or prior to and including the Maturity Date, Hedging Agreements with one or more Bank Product Providers for the purpose of converting to a fixed rate a sufficient amount of Loans, such that:
(a) at least 25%, but not more than 105% (calculated on a weighted average basis), in each case, of the aggregate notional principal amount projected to be outstanding under, collectively, the Loans until the latest payment date occurring at the expiration of the 20-year notional amortization period; and
(b) at least 75%, but not more than 105% (calculated on a weighted average basis), in each case, of the aggregate notional principal amount projected to be outstanding under, collectively, the Loans until the Maturity Date,
(each such transaction, an “Interest Rate Hedging Agreement”). The Interest Rate Hedge Agreements entered into with Bank Product Providers shall rank pari passu with the Loans in all respects at all times, (including in terms of security, guarantees (other than with respect to Excluded Swap Obligations) and priority of payment), the Bank Product Providers will share the benefit of the security as a Secured Party. The Borrower shall have the right to partially terminate a portion of such Interest Rate Hedge Agreements
in a proportionate amount equal to any voluntary or mandatory prepayment or other reduction in commitments under this Agreement, to cure any over-hedging excess subject to the terms of the Interest Rate Hedge Agreement and compliance with Section 5.15(a) and Section 5.15(b).
Section 5.16 Flag of Collateral Vessel; Collateral Vessel Classifications; Operation of Collateral Vessels.
(a) Each Vessel Owner Guarantor and Charterer which owns or bareboat charters a Collateral Vessel will remain qualified in all material respects to own or bareboat charter such Collateral Vessel under the laws of the Acceptable Flag Jurisdiction in which such Collateral Vessel is registered.
(b) Each Vessel Owner Guarantor and Charterer which owns or bareboat charters a Collateral Vessel will (i) comply with and satisfy all applicable Legal Requirements of the applicable Acceptable Flag Jurisdiction in order that such Collateral Vessel shall continue to be registered pursuant to the laws of such Acceptable Flag Jurisdiction or flag (including but not limited to the ISM Code, the ISPS Code and MARPOL) and (ii) not do or allow to be done anything whereby such registration is or would reasonably be expected to be forfeited.
(c) Each Vessel Owner Guarantor or Charterer which owns or bareboat charters a Collateral Vessel will ensure that each Collateral Vessel is in all respects seaworthy and fit for its intended service and maintains its classification in effect as of the Closing Date with an Approved Classification Society free of any overdue conditions or recommendations affecting class, unless the failure to maintain such seaworthiness or to remain fit for its intended service or obtain such classification or the existence of any overdue conditions or recommendations affecting class would not result in any suspensions, discontinuances or withdrawal of class.
(d) Each Vessel Owner Guarantor or Charterer which owns or bareboat charters a Collateral Vessel will submit or cause to be submitted such Collateral Vessel to such surveys as may be required for classification purposes and, upon the reasonable written request of the Facility Agent, supply or cause to be supplied to the Facility Agent copies of all such survey reports and classification certificates issued in respect thereof.
(e) Each Vessel Owner Guarantor and Charterer which owns or operates a Collateral Vessel will promptly pay and discharge (or cause to be paid and discharged) all tolls, dues, taxes, assessments, governmental charges, fines, penalties, debts, damages and liabilities whatsoever which have given or may give rise to maritime or possessory Liens (other than Permitted Liens) on, or claims (other than Permitted Liens) enforceable against, such Collateral Vessel other than any of the foregoing being contested in good faith and diligently by appropriate proceedings, and, in the event of arrest of any Collateral Vessel pursuant to legal process, or in the event of its detention in exercise or purported exercise of any such Lien or claim as aforesaid, procure, if possible, the release of such Collateral Vessel from such arrest or detention within sixty (60) days of such arrest or detention by providing bail or otherwise as the circumstances may require, and shall use commercially reasonable efforts to prevent arrest of such Collateral Vessel; provided that, (i) such arrest or detention is being contested in good faith by appropriate proceedings, promptly instructed and diligently pursued, (ii) adequate reserves have been established in accordance with GAAP, and (iii) the Borrower keeps the Facility Agent fully informed of material developments in connection with such release.
(f) Each Vessel Owner Guarantor or Charterer which owns or bareboat charters a Collateral Vessel will maintain (or cause to be maintained) a valid Certificate of Financial Responsibility (Oil Pollution) issued by the United States Coast Guard pursuant to the Federal Water Pollution Control Act to the extent that such certificate may be required by applicable Legal Requirements for any
Collateral Vessel and such other similar certificates as may be required in the course of the operations of any Collateral Vessel pursuant to the International Convention on Civil Liability for Oil Pollution Damage of 1969, or other applicable Legal Requirements (including the ISM Code, the ISPS Code and MARPOL).
(g) Each Vessel Owner Guarantor will procure that the Collateral Vessel owned by it maintains and carries on board an IHM or equivalent document acceptable to the Facility Agent.
(h) In connection with any charter or sub-charter (including each Permitted Charter) of a Collateral Vessel having an indicated duration exceeding thirteen (13) months (including any optional extensions), (i) if such charter or sub-charter is entered into by the applicable Vessel Owner Guarantor, such Vessel Owner Guarantor shall, at its own cost and expense, promptly and duly (A) execute and deliver to the Security Trustee an assignment of such charter contract and a notice of assignment in respect of such charter contract substantially in the form set forth in the relevant General Assignment Agreement, and (B) use commercially reasonable efforts to cause the applicable third-party charterer or sub-charterer under such charter contract to execute and deliver to the Security Trustee (1) an acknowledgement and consent to such assignment and (2) a direct assignment of such charterer’s or sub-charterer’s insurances in respect of the relevant Collateral Vessel, in each case in form and substance reasonably satisfactory to the Security Trustee; and (ii) if such charter or sub-charter is entered into by the Charterer, the Charterer shall, at its own cost and expense, promptly and duly (A) execute and deliver to the Security Trustee an assignment of such charter contract and a notice of assignment in respect of such charter contract substantially in the form set forth in the relevant Charterer Assignment, and (B) use commercially reasonable efforts to cause the applicable third-party charterer or sub-charterer under such charter contract to execute and deliver to the Security Trustee (1) an acknowledgement and consent to such assignment and (2) a direct assignment of such charterer’s or sub-charterer’s insurances in respect of the relevant Collateral Vessel, in each case in form and substance reasonably satisfactory to the Security Trustee.
(i) On and after the Initial Borrowing Date and if Venture Global Ship Management Ltd., as the initial Technical Manager, is replaced with an Acceptable Third Party Technical Manager, the Borrower will use commercially reasonable efforts to cause each Acceptable Third Party Technical Manager to execute a Manager’s Undertaking.
(j) Upon the reasonable request of a Vessel Owner Guarantor, the Security Trustee shall enter into a quiet enjoyment agreement with a charterer (excluding, for the avoidance of doubt, the Charterer), in form and substance reasonably satisfactory to the Security Trustee (acting on the instructions of the Required Lenders); provided that, no more than five quiet enjoyment agreements (or such higher number as may be approved by the Required Lenders) shall be outstanding at any time during the term of this Agreement.
(k) Each Vessel Owner Guarantor and Charterer shall avoid (as far as reasonably practicable) any Particularly Sensitive Sea Areas (each, a “PSSA”) as designated by the International Maritime Organization (the “IMO”) and, if and to the extent not practicable, that Vessel Owner Guarantor or Charterer shall comply with such guidelines published by the IMO on routing and restrictions that apply within PSSAs from time to time
To the extent that any obligation under this Section 5.16 relates to the Charterer or to the operation (as opposed to the ownership) of a Collateral Vessel, each Vessel Owner Guarantor’s obligation shall be to ensure that the applicable Charter or Charterer Assignment, as applicable, requires the Charterer to comply with such obligation and to exercise its rights under such Charter or Charterer Assignment to cause the Charterer to comply.
Section 5.17 Material Agreements. Comply (a) in all material respects with all Charters, and (b) with respect to any other contracts and other agreements to which any Company is a party, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. Each Vessel Owner Guarantor shall (a) inform the Facility Agent promptly (and in any event within three (3) Business Days) of the occurrence of any material breach under any Charter; and (b) if reasonably requested by the Facility Agent, require the Charterer to rectify any such breach within any cure periods (if any) in accordance with the Charters.
Section 5.18 Collateral Vessel Management. Cause all Collateral Vessels owned by the Vessel Owner Guarantors to be managed by a Commercial Manager and a Technical Manager. For the avoidance of doubt, crew management arrangements (including the use of third-party crewing agencies) shall not constitute a change of Technical Manager or Commercial Manager.
Section 5.19 Agent for Service of Process. Cause to be maintained at all times the Process Agent or another agent reasonably acceptable to the Facility Agent, as its and the other Loan Parties’ agent for service of process in the State of New York and shall cause any other such agent to execute and deliver to the Borrower and the Facility Agent a letter in form and substance reasonably satisfactory to the Facility Agent, accepting such agency, prior to or concurrently with such other agent’s acceptance of its appointment as agent for service of process for the Loan Parties.
Section 5.20 Poseidon Principles. Upon the request of any Lender which is a signatory to the Poseidon Principles at the time of such request, on or before July 31 in each calendar year, commencing in 2027, the Borrower shall supply or procure the supply to the Facility Agent (for further transmission to such Lender) of information which is necessary in order for that Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including 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, together with a Carbon Intensity and Climate Alignment Certificate, in each case relating to the Collateral Vessels for the preceding calendar year, subject to the following:
(a) in no event shall the Borrower or any other Loan Party be required to independently generate, verify or audit any information delivered pursuant to this Section 5.20, and the Borrower and the other Loan Parties shall have no liability for the accuracy or completeness of any information supplied by a charterer; and
(b) no Lender shall publicly disclose any vessel-identifying information received pursuant to this Section 5.20 except (A) as required by applicable law or regulation or (B) to the extent required by the Poseidon Principles for portfolio-level reporting on an anonymized or aggregated basis.
Section 5.21 Compliance with Sanctions and Anti-Corruption Laws. Each Company shall:
(a) Comply with Sanctions on an ongoing basis in all material respects;
(b) Not fund all or part of any payment under this Agreement out of proceeds derived from unlawful business or transactions with a Sanctioned Person, or from any action that breaches Sanctions or would otherwise cause any Lender, the Facility Agent, the Security Trustee or any Company to be in breach of Sanctions;
(c) Ensure that each Collateral Vessel shall not be used by or for the benefit of any Sanctioned Person in violation of Sanctions, or in any manner that will cause the Secured Parties to be in breach of Sanctions;
(d) Ensure that each Collateral Vessel shall not be used in trading in violation of Sanctions;
(e) Ensure that each Collateral Vessel shall not be used in trading in any manner which breaches the sanctions limitation or exclusion clause (or similar clause) in the Required Insurance relating to such Collateral Vessel;
(f) Ensure that each Company institutes and maintains policies and procedures reasonably designed to maintain compliance with Sanctions;
(g) Ensure that each Company (and its directors and officers) does not, directly or indirectly, in violation of applicable Anti-Corruption Laws (i) use any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity or to influence official action, (ii) make or take an act in furtherance of any unlawful payment to any foreign or domestic government official or employee, (iii) make or take, in an act in furtherance of any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment or benefit to any foreign or domestic government official or employee, or (iv) used the proceeds of any Loans in a manner or for a purpose prohibited by any Anti-Corruption Laws.
(h) Institute and maintain policies and procedures designed to ensure compliance by each Company with the foregoing clause (g).
Section 5.22 Post Credit Extension requirements. Promptly, and in any event within thirty (30) days, after (a) the Closing Date, the Borrower shall deliver to, or cause to be delivered, the Insurance Deliverables Requirement with respect to each Collateral Vessel (as such term is defined as of the Closing Date), (b) the Tranche 8 Borrowing Date, the Insurance Deliverables Requirement with respect to the Venture Manatee and (c) the Tranche 9 Borrowing Date, the Insurance Deliverables Requirement with respect to the Venture Venice.
Article VI
NEGATIVE COVENANTS
The Borrower and each Vessel Owner Guarantor covenants and agrees with the Facility Agent, the Security Trustee and each Lender that, on and after the Closing Date and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full (other than contingent indemnification obligations for which no claim or demand has been made), the Pledgor and each Loan Party will not:
Section 6.01 Indebtedness. Incur, create, assume or permit to exist, directly or indirectly, any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries incurred under this Agreement and the other Loan Documents;
(b) Indebtedness of the Borrower and its Subsidiaries outstanding on the Closing Date and listed on Schedule 6.01(b);
(c) Indebtedness of the Borrower and its Subsidiaries under Hedging Obligations under Interest Rate Hedging Agreements, in each case, entered into not for speculative purposes;
(d) Reserved;
(e) Reserved;
(f) Reserved;
(g) Contingent Obligations (i) of the Borrower in respect of Indebtedness of any Vessel Owner Guarantor and (ii) of any Vessel Owner Guarantor in respect of Indebtedness of the Borrower or any other Vessel Owner Guarantor, in each case, to the extent that such Indebtedness is otherwise permitted to be incurred pursuant to this Section 6.01 (other than clause (b) of this Section 6.01); provided that, if the Indebtedness to be guaranteed is subordinated to the Obligations, then the guarantees permitted under this clause (g) shall be subordinated to the Obligations to the same extent and on the same terms as the Indebtedness so guaranteed is subordinated to the Obligations;
(h) Indebtedness of the Borrower and the Vessel Owner Guarantors arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that, such Indebtedness is extinguished within five Business Days of incurrence;
(i) Indebtedness of the Borrower and the Vessel Owner Guarantors arising in connection with endorsement of instruments for deposit in the ordinary course of business; and
(j) other Indebtedness of the Borrower and the Vessel Owner Guarantors not to exceed $25,000,000 in the aggregate; provided that, immediately before and after giving effect on a Pro Forma Basis to the incurrence of such additional Indebtedness, (i) no Event of Default then exists or would result therefrom and (ii) Borrower shall be in compliance with the Financial Covenants.
Section 6.02 Liens. Create, incur, assume or permit to exist, directly or indirectly, any Lien on any Collateral, whether now owned or hereafter acquired by it, except the following (collectively, the “Permitted Liens”):
(a) inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which are immaterial or being contested in good faith by appropriate proceedings timely initiated and for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;
(b) Reserved;
(c) Liens arising out of judgments, attachments or awards not resulting in an Event of Default and in respect of which such Loan Party shall in good faith be diligently prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings;
(d) Liens (x) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, performance, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (in each case, exclusive of obligations
for the payment of Indebtedness) or (y) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that, (i) such tenders, obligations, bonds, contracts or premiums relate to the business of the Vessel Owner Guarantors or the Collateral Vessels, (ii) such Liens do not relate to the incurrence of Indebtedness for borrowed money, and (iii) such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;
(e) bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Loan Party, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; provided that, unless such Liens are non-consensual and arise by operation of applicable Legal Requirements, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;
(f) Liens granted pursuant to the Loan Documents to secure the Secured Obligations;
(g) Permitted Maritime Liens;
(h) Reserved;
(i) Liens solely on any cash earnest money deposits made by any Loan Party in connection with any letter of intent or purchase agreement in respect of any Investment permitted hereunder; and
(j) Liens arising pursuant to a Permitted Charter.
Any reference in any of the Loan Documents to a Permitted Lien is not intended to and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Lien created by any of the Loan Documents to any Permitted Lien.
Section 6.03 Sale and Leaseback Transactions. Enter into any Sale and Leaseback Transaction unless the Borrower shall have made a prepayment in accordance with Section 2.10(b).
Section 6.04 Investments, Loans and Advances. Directly or indirectly, lend money or credit (by way of guarantee, assumption of debt or otherwise) or make advances to any Person, or purchase or acquire any stock, bonds, notes, debentures or other obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract (all of the foregoing, collectively, “Investments”), except that the following shall be permitted:
(a) Investments of the Borrower and the Vessel Owner Guarantors outstanding on the Closing Date and identified on Schedule 6.04(a);
(b) the Borrower and the Vessel Owner Guarantors may (i) acquire and hold accounts receivable owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold
cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make lease, utility and other similar deposits in the ordinary course of business;
(c) Hedging Obligations of the Borrower and the Vessel Owner Guarantors permitted pursuant to Section 6.01(c);
(d) Reserved;
(e) Investments by the Borrower in any other Loan Party; provided that, any Investment in the form of a loan or advance shall be evidenced by an Intercompany Note and shall be subject to the terms of the Intercompany Subordination Agreement and each such Intercompany Note shall be pledged by the Borrower as Collateral pursuant to the Security Documents;
(f) Investments of the Borrower and the Vessel Owner Guarantors in securities of trade creditors or customers in the ordinary course of business that are received in settlement of bona fide disputes or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;
(g) mergers and consolidations in compliance with Section 6.05;
(h) Investments made by any Loan Party as a result of consideration received in connection with a disposition of property made in compliance with Section 6.06;
(i) acquisitions of property in compliance with Section 6.07 (other than Section 6.07(a));
(j) Dividends in compliance with Section 6.08;
(k) Reserved;
(l) other Investments by Borrower and its Subsidiaries not to exceed $25,000,000 in the aggregate, so long as, immediately before and after giving effect on a Pro Forma Basis to such Investment (x) no Event of Default then exists or would result therefrom and (y) the Borrower shall be in compliance with the Financial Covenants; and
(m) to the extent constituting an Investment, payments to the Borrower permitted pursuant to Section 6.09(d).
Section 6.05 Mergers and Consolidations. Wind up, liquidate, provisionally liquidate or dissolve its affairs, or enter into any transaction of merger, amalgamation or consolidation, except for permitted dispositions of assets in compliance with Section 6.06 (other than Sections 6.06(e), (f) and (g)).
Section 6.06 Asset Sales. Effect any disposition of any property, except that the following shall be permitted:
(a) dispositions of surplus, worn out or obsolete property (other than Collateral Vessels) by the Borrower or any Vessel Owner Guarantor in the ordinary course of business that is, in the reasonable good faith judgment of the Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Borrower and the Vessel Owner Guarantors taken as a whole;
(b) dispositions by any Loan Party of any Collateral Vessel or of Equity Interests of a Vessel Owner Guarantor which directly or indirectly owns such Collateral Vessel (each, a “Permitted Owner Guarantor Sale”); provided that, (i) no Event of Default then exists or would result therefrom, (ii) the Borrower and the Vessel Owner Guarantors shall be in compliance, on a Pro Forma Basis after giving effect to such disposition, with the Financial Covenants set forth in Section 6.10 for the most recently ended fiscal quarter of the Borrower as if such disposition occurred on the last day of such fiscal quarter, (iii) such dispositions are made for Fair Market Value and on an arms-length commercial basis, (iv) the Borrower shall have made a prepayment in accordance with Section 2.10(b)(i), and (v) at least 75% of the consideration payable in respect of such disposition of property is in the form of cash or Cash Equivalents and is received at the time of the consummation of any such disposition;
(c) Reserved;
(d) leases of, or charter contracts in respect of, real or personal property (other than Sale and Leaseback Transactions of the Collateral Vessels) by the Borrower and the Vessel Owner Guarantors in the ordinary course of business and, in the case of any such lease or charter contracts in respect of the Collateral Vessels or other Collateral, in accordance with the applicable Security Documents;
(e) Dispositions by the Borrower and the Vessel Owner Guarantors of Investments in compliance with Section 6.04;
(f) Dispositions by the Borrower and the Vessel Owner Guarantors consisting of mergers and consolidations in compliance with Section 6.05;
(g) Dividends by the Borrower and the Vessel Owner Guarantors in compliance with Section 6.08;
(h) dispositions by the Borrower and the Vessel Owner Guarantors made in the ordinary course of business (excluding, for the avoidance of doubt, dispositions of Collateral Vessels or other Collateral) and dispositions of cash and Cash Equivalents in the ordinary course of business;
(i) any disposition by the Borrower or the Vessel Owner Guarantors of property that constitutes a Casualty Event; provided that, if such Casualty Event is a Total Loss with respect to a Collateral Vessel, the Borrower shall have made a prepayment in accordance with Section 2.10(b)(i);
(j) any disposition of property by the Borrower or any other Loan Party to the Borrower or any other Loan Party;
(k) sales, forgiveness or other dispositions by the Borrower and the Vessel Owner Guarantors without recourse in the ordinary course of business of accounts receivable arising in the ordinary course of business in connection with the collection or compromise thereof but not as part of any financing transaction; and
(l) dispositions of other property of Borrower and the Vessel Owner Guarantors ((other than Collateral Vessels); provided that, (i) no Event of Default then exists or would result therefrom and (ii) Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such disposition, with the Financial Covenants set forth in Section 6.10 for
the most recently ended fiscal quarter of Borrower as if such disposition occurred on the last day of such fiscal quarter.
To the extent the requisite Lenders under Section 11.02(b) waive the provisions of this Section 6.06, with respect to the sale of any Collateral not otherwise permitted under this Agreement, or any Collateral is sold as permitted by this Section 6.06, such Collateral (unless sold to a Loan Party), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as the Borrower shall have previously provided to the Facility Agent and the Security Trustee such certifications or documents as the Facility Agent and/or the Security Trustee shall reasonably request in order to demonstrate compliance with this Section 6.06, the Security Trustee shall take all actions it deems appropriate in order to effect the foregoing.
Section 6.07 Acquisitions. Purchase or otherwise acquire (in one or a series of related transactions) any part of the property (whether tangible or intangible) of any Person except that the following shall be permitted:
(a) Investments in compliance with Section 6.04;
(b) Reserved;
(c) purchases and other acquisitions of inventory, materials, equipment and intangible property by the Borrower and its Subsidiaries in the ordinary course of business;
(d) leases or licenses of real or personal property in the ordinary course of business and in accordance with this Agreement and, to the extent involving Collateral, the applicable Security Documents;
(e) Reserved;
(f) Reserved;
(g) mergers and consolidations in compliance with Section 6.05; and
(h) Dividends in compliance with Section 6.08;
provided that, the Lien on and security interest in such property granted or to be granted in favor of the Security Trustee under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11.
Section 6.08 Dividends. Authorize, declare or pay, directly or indirectly, any Dividends with respect to Borrower and its Subsidiaries or incur any obligation (contingent or otherwise) to do so or make other distributions (including for the avoidance of doubt, stock buy-backs), except that the following Dividends shall be permitted:
(a) Dividends by the Borrower in accordance with Section 2.18(b)(viii);
(b) the Borrower and the Pledgor may authorize, declare and pay Dividends with the proceeds of the Initial Term Loans, the Tranche 8 Loans and the Tranche 9 Loans on or within two (2) Business Days of the Initial Borrowing Date, the Tranche 8 Borrowing Date and the Tranche 9 Borrowing Date, respectively; and
(c) any Loan Party may authorize, declare and pay Dividends to the Borrower or any other Loan Party.
Section 6.09 Transactions with Affiliates. Enter into, directly or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Loan Party (other than between or among the Borrower and the Vessel Owner Guarantors to the extent otherwise permitted under this Agreement), other than on terms and conditions at least as favorable to such Loan Party as would reasonably be obtained by such Loan Party at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following shall be permitted:
(a) Dividends permitted by Section 6.08;
(b) Investments permitted by Section 6.04;
(c) reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements; and
(d) Affiliate transactions to the extent set forth on Schedule 6.09(d).
Section 6.10 Financial Covenants.
(a) Collateral Maintenance Test. The Borrower and the Vessel Owner Guarantors will not permit the aggregate principal amount of the outstanding Loans to be greater than [***]% of the aggregate Fair Market Value of the Collateral Vessels that are subject to a Vessel Mortgage as of the applicable date set forth in the last sentence of this Section 6.10(a) (the “Collateral Maintenance Test”); provided that, any non-compliance with this Section 6.10(a) shall not constitute an Event of Default (but shall constitute a Default), so long as within thirty (30) days of the occurrence of any such non-compliance, the Borrower shall either (x) post Additional Collateral, or (y) prepay Loans under the Facilities in an amount sufficient to cure such non-compliance. For purposes of this clause (a), the Fair Market Value of a Collateral Vessel at any time shall be the Vessel Appraisal Value most recently delivered to the Facility Agent pursuant to Section 5.13. The Collateral Maintenance Test shall be tested on the last Business Day of December and June each year, commencing with the last Business Day of December 2026.
(b) Debt Service Coverage Ratio. The Borrower will not permit the Debt Service Coverage Ratio to be less than 1.10:1.00 as of each Test Date.
(c) Release of Additional Collateral. If the Borrower has posted Additional Collateral to cure non-compliance with the Collateral Maintenance Test pursuant to clause (a) above, and on any subsequent testing date the Borrower demonstrates (by delivery of a Compliance Certificate accompanied by current Vessel Appraisals) that it is in compliance with the Collateral Maintenance Test without giving effect to such Additional Collateral, the Security Trustee shall, promptly upon request by the Borrower, release such Additional Collateral (or such portion thereof that is no longer required to maintain compliance) to the Borrower.
(d) Equity Cure Right. Notwithstanding anything to the contrary in this Agreement, in the event that the Borrower fails to comply with the Financial Covenant set forth in clause (b) above as of any Test Date, the Borrower shall have the right (the “Cure Right”) to cure such non-compliance by causing the Sponsor, the Pledgor or any Affiliate of the Borrower (other than any Loan Party) to make a cash equity contribution or subordinated loan to the Borrower (a “Cure Amount”) within twenty (20) Business Days after the date on which the relevant Compliance Certificate is required to be delivered (the “Cure Deadline”), and upon receipt of such Cure Amount by the Borrower, the Cure Amount shall, at the election of the Borrower in its absolute discretion, be (x) deposited into a deposit account of the Borrower
that is subject to a blocked account control agreement in favor of the Security Trustee (in form and substance reasonably satisfactory to the Facility Agent), (y) applied as a prepayment of the Loans in respect of each Tranche outstanding as of such date, or (z) applied in any combination of the foregoing, and the Financial Covenant shall be recalculated giving effect to such Cure Amount as if received on the last day of the relevant Test Period. If, after giving effect to the Cure Amount, the Borrower is in compliance with such Financial Covenant, the Borrower shall be deemed to have satisfied such Financial Covenants as of the relevant Test Date, and any Default or Event of Default that had occurred solely as a result of such non-compliance shall be deemed cured for all purposes under this Agreement. For the avoidance of doubt, if the Borrower issues a notice of its intention to exercise the Cure Right, neither the Facility Agent nor the Security Trustee shall be entitled to exercise remedies under this Agreement on the basis of an Event of Default solely in respect of a failure to comply with such Financial Covenant having occurred and being continuing until the Cure Deadline has passed without the Cure Amount having been received. The Cure Right may not be exercised on more than (i) two (2) successive Test Dates or (ii) five (5) Test Dates in the aggregate during the term of this Agreement. For the avoidance of doubt, the Cure Right under this clause (d) is in addition to, and without prejudice to, the cure rights available to the Borrower under clause (a) of this Section 6.10 with respect to the Collateral Maintenance Test, and the exercise of the Cure Right shall not reduce or limit the time periods available under clause (a).
Section 6.11 Prepayments of Other Indebtedness; Modifications of Organizational Documents and Certain Other Documents, etc. Directly or indirectly:
(a) make or offer to make (or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption, retirement, defeasance, or acquisition for value of, or any prepayment, repurchase or redemption, retirement, defeasance as a result of any asset sale, change in control or similar event of, any Subordinated Indebtedness;
(b) amend or modify, or permit the amendment or modification of, any provision of any documents related to Subordinated Indebtedness in any manner that is, or would reasonably be expected to be, adverse in any material respect to the interests of any Agent or any Lender; or
(c) (x) terminate, amend, modify (including electing to treat any Securities Collateral as a “security” under Section 8-103 of the UCC (solely to the extent not already so elected as of the Closing Date)) or change any of its Organizational Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its Equity Interests (including any stockholders’ or shareholders’ agreement), or enter into any new agreement with respect to its Equity Interests, other than any such amendments, modifications or changes or such new agreements which are not, and would not reasonably be expected to be, adverse in any material respect to the interests of any Agent or any Lender, or (y) amend or modify any tax sharing or similar agreement without the consent of the Facility Agent (such consent not to unreasonably withheld, conditioned or delayed).
Section 6.12 Limitation on Certain Restrictions on Subsidiaries. Directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance, restriction or condition on the ability of any Subsidiary of the Borrower to (i) pay Dividends or make any other distributions on its Equity Interests or any other interest or participation in its profits owned by any Loan Party, or pay any Indebtedness owed to any Loan Party, (ii) make loans or advances to any Loan Party or (iii) transfer any of its properties to any Loan Party, except for such encumbrances, restrictions or conditions existing under or by reason of:
(a) applicable mandatory Legal Requirements;
(b) this Agreement and the other Loan Documents;
(c) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of the Borrower or any of its Subsidiaries;
(d) customary provisions restricting assignment of any agreement entered into by the Borrower or any of its Subsidiaries in the ordinary course of business;
(e) customary restrictions and conditions contained in any agreement relating to the sale or other disposition of any property pending the consummation of such sale; provided that, (i) such restrictions and conditions apply only to the property to be sold, and (ii) such sale or other disposition is permitted hereunder;
(f) any encumbrances, restrictions or conditions imposed by any amendments that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clause (d) above; provided that, such amendments are not materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment; or
(g) any agreement in effect at the time a Person becomes a Subsidiary of the Borrower, so long as such agreement was not entered into in connection with or in contemplation of such Person becoming a Subsidiary of the Borrower and such restriction does not apply to any Loan Party other than such Subsidiary.
Section 6.13 Limitation on Issuance of Capital Stock.
(a) With respect to the Borrower, issue any Equity Interest that is Disqualified Capital Stock.
(b) With respect to any Subsidiary of the Borrower, issue any Equity Interest (including by way of sales of treasury stock or treasury shares) or any options or warrants to purchase, or securities convertible into, any Equity Interest, except (i) for stock splits, stock dividends and additional issuances of Equity Interests which do not decrease the percentage ownership of the Borrower or any of its Subsidiaries in any class of the Equity Interests of such Subsidiary and (ii) Subsidiaries of the Borrower formed or acquired after the Initial Borrowing Date in accordance with this Agreement may issue Equity Interests to the Borrower, a Wholly Owned Subsidiary of the Borrower which is to own such Equity Interests and, in the case of a Subsidiary of the Borrower that is not a Loan Party, to other Persons which are to own such Equity Interests to the extent otherwise permitted hereunder. All Equity Interests issued to a Loan Party in accordance with this Section 6.13(b) shall, to the extent required by Section 5.10 and Section 5.11 or any Security Document, be delivered to the Security Trustee for pledge pursuant to the applicable Security Document.
Section 6.14 Business. (a) With respect to the Pledgor, engage in any business activities or have any properties, other than (i) its ownership of the Equity Interests of the Borrower or any other Subsidiary listed on Schedule 3.06(c) and other immaterial and non-operational assets to the extent owned as of the Initial Borrowing Date or permitted to be received by it from the Borrower after the Initial Borrowing Date in accordance with the applicable provisions of Section 6.08, (ii) the holding of any cash and Cash Equivalents permitted to be received by it from the Borrower after the Initial Borrowing Date in accordance with the applicable provisions of Section 6.08 or reasonably incidental to the issuance by the Pledgor of its Equity Interests or incurrence by the Pledgor of Indebtedness, (iii) incurring Indebtedness under the Loan Documents, (iv) incurring Indebtedness and other liabilities otherwise not restricted by this Agreement, (v) maintaining its existence in compliance with applicable Legal Requirements and (vi) special purpose holding company activities reasonably incidental to the foregoing clauses (i) through (v),
inclusive. At no time on or after the Initial Borrowing Date shall the Pledgor directly own or charter any Vessel.
(b) With respect to the Borrower and the Vessel Owner Guarantors, engage (directly or indirectly) in any businesses other than those businesses in which the Borrower and the Vessel Owner Guarantors are engaged on the Closing Date (or which are substantially related thereto or are reasonable extensions thereof).
Section 6.15 Operation of Collateral Vessels. The Borrower will not, and will not permit any Vessel Owner Guarantor to:
(a) without giving prior written notice thereof to the Security Trustee, change the registered owner, name, official or patent number, as the case may be, the home port or class of any Collateral Vessel; and
(b) without the prior consent of the Facility Agent (acting on instructions of the Required Lenders) (or, in the case of the registry, each Lender) (such consent not to be unreasonably withheld), change the registered flag, registry or classification society of any Collateral Vessel unless the change is to an Acceptable Flag Jurisdiction (and the Vessel Collateral Requirements have been satisfied) or to an Acceptable Classification Society.
Section 6.16 Fiscal Periods. Change its fiscal year-end to a date other than December 31, or its fiscal quarters to a date other than March 31, June 30, September 30 and December 31.
Section 6.17 No Further Negative Pledge. Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues, whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (a) this Agreement and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 6.02 prohibiting further Liens (other than Liens permitted under Section 6.02(f)) on the properties encumbered thereby; (c) [reserved]; and (d) any prohibition or limitation that (i) exists pursuant to applicable Legal Requirements, (ii) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property pending the consummation of such sale; provided that, (A) such restrictions apply only to such property to be sold or disposed of, and (B) such sale is permitted hereunder, (iii) consists of customary restrictions on the assignment of leases, licenses and other contracts entered into in the ordinary course of business, (iv) [reserved], (v) consists of customary prohibitions or limitations in joint venture agreements, pooling agreements and other similar agreements restricting the pledge or assignment thereof or (vi) consists of other contractual restrictions on pledges or assignments in agreements entered into in the ordinary course of business solely to the extent such restrictions would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable Legal Requirement (including the Bankruptcy Code) or principles of equity.
Section 6.18 Sanctions; Anti-Terrorism Laws; Anti-Money Laundering Laws. (a) Directly or indirectly (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in Section 3.20 that would result in a violation of Sanctions, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law in violation of Sanctions or (iii) lend or contribute the Credit Extensions for any purpose that would breach Anti-Money Laundering Laws.
(b) Cause or permit any of the funds of such Loan Party that are used to repay the Credit Extensions to be derived from any unlawful activity with the result that the making of the Credit Extensions would be in violation of Legal Requirements.
Section 6.19 Sanctioned Person. Knowingly cause or permit (a) any of the funds or properties of any Company that are used to repay the Loans or other Credit Extensions to constitute property of any Sanctioned Person (i) with whom dealings are restricted or prohibited under applicable Sanctions, including those that are identified on the OFAC Specially Designated Nationals and Blocked Persons List, or 50% or greater owned by any such Person, where use of such funds relating to parties in (i) or (ii) above would result in a violation of Sanctions, or (b) any Sanctioned Person to have any direct or indirect interest, of any nature whatsoever in any Company, with the result that the investment in any Company (whether directly or indirectly) is prohibited by applicable Sanctions.
Section 6.20 Restrictions on Chartering. Neither the Charterer nor any Vessel Owner Guarantor shall (a) let a Collateral Vessel on demise charter for any period (other than pursuant to a Charter) or (b) enter into any charter in respect of a Collateral Vessel other than a Permitted Charter.
Section 6.21 Additional Covenants. Pledgor will not (i) directly or indirectly, take any action that would result in a Change in Control, (ii) create, incur, assume or suffer to exist any Lien on the Equity Interests of the Borrower other than Permitted Liens of the type described in clauses (a) and (f) of Section 6.02, (iii) directly or indirectly, wind up, liquidate or dissolve its affairs or (iv) dispose of any Equity Interest of the Borrower or any Vessel Owner Guarantor except as otherwise provided in this Agreement.
Section 6.22 Employee Benefits. (a) None of the Companies nor any ERISA Affiliate will maintain or contribute to (or have an obligation to contribute to) a Pension Plan that is subject to the provisions of Title IV of ERISA or a Multiemployer Plan that in each case would reasonably be expected to result in a Material Adverse Effect.
(b) Except in relation to (i) any arrangement which provides benefits on death which are wholly insured and (ii) the UK Pension Plan, none of the Companies nor any of their Affiliates will be an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004) in relation to any UK registered occupational pension scheme (as defined in the Pension Schemes Act 1993) which is a defined benefit pension plan.
Section 6.23 German Banking Separation Act; AIF.
(a) Each Loan Party covenants that it is not: (i) a hedge fund within the meaning of section 283(1) of the German Capital Investment Code (Kapitalanlagegesetzbuch — “KAGB”) nor a fund of hedge funds within the meaning of section 225(1) of the KAGB or, where the business is carried out in connection with managing a hedge fund or fund of hedge funds, with their management companies; or (ii) an EU AIF nor a foreign AIF within the meaning of the Capital Investment Code which uses leverage on a substantial basis within the meaning of Article 111 of Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision (OJ L 83/1 of 22 March 2013) or, if business is conducted in the context of managing the EU AIF or foreign AIF, with their EU AIF management companies or foreign AIF management companies.
(b) None of the Loan Parties or any of their respective Subsidiaries shall become an AIF or an internal or external manager of an AIF.
Article VII
GUARANTEE
Section 7.01 The Guarantee. The Vessel Owner Guarantors hereby, jointly and severally, guarantee, as primary obligors and not as sureties, to each Secured Party and their respective successors and assigns, the prompt payment and performance in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of, premium (if any) and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under Title 11 of the Bankruptcy Code) on the Loans made by the Lenders to, and the Notes, if any, held by each Lender of, the Borrower, and all other Secured Obligations from time to time owing to the Secured Parties by any Loan Party in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”). The Vessel Owner Guarantors hereby jointly and severally agree that if the Borrower or other Vessel Owner Guarantors shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Vessel Owner Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
Section 7.02 Obligations Unconditional. The obligations of the Vessel Owner Guarantors under Section 7.01 shall constitute a guaranty of payment and performance and not of collection and, to the fullest extent permitted by applicable Legal Requirements, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations under this Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Vessel Owner Guarantor (except for payment in full in cash of the Guaranteed Obligations). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Vessel Owner Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:
(a) at any time or from time to time, without notice to the Vessel Owner Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of this Agreement, the other Loan Documents or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;
(c) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;
(d) any Lien or security interest granted to, or in favor of, any Secured Party as security for any of the Guaranteed Obligations shall fail to be valid, perfected or to have the priority required under the Loan Documents; or
(e) the release of any other Vessel Owner Guarantor pursuant to Section 7.09.
The Vessel Owner Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against the Borrower or any Vessel Owner Guarantor under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations. The Vessel Owner Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between the Borrower and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment and performance without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by the Secured Parties, and the obligations and liabilities of the Vessel Owner Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other Person at any time of any right or remedy against the Borrower or against any other Person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Vessel Owner Guarantors and their respective successors and assigns, and shall inure to the benefit of the Secured Parties, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.
Section 7.03 Reinstatement. The obligations of the Vessel Owner Guarantors under this Article VII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.
Section 7.04 Subrogation; Subordination. Each Vessel Owner Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 7.01, whether by subrogation or otherwise, against the Borrower or any other Vessel Owner Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. Any Indebtedness or other Obligation of any Loan Party to a Vessel Owner Guarantor shall be subordinated to such Loan Party’s Secured Obligations in the manner set forth in the Intercompany Subordination Agreement.
Section 7.05 Remedies. The Vessel Owner Guarantors jointly and severally agree that, as between the Vessel Owner Guarantors and the Lenders, the obligations of the Borrower under this Agreement and other Loan Documents may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VIII) for purposes of Section 7.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Borrower) shall forthwith become due and payable by the Vessel Owner Guarantors for purposes of Section 7.01.
Section 7.06 Instrument for the Payment of Money. Each Vessel Owner Guarantor hereby acknowledges that the guarantee in this Article VII constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Vessel Owner Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.
Section 7.07 Continuing Guarantee. The guarantee in this Article VII is a continuing guarantee of payment and performance, and shall apply to all Guaranteed Obligations whenever arising.
Section 7.08 General Limitation on Guarantee Obligations. In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other Legal Requirement affecting the rights of creditors generally, if the obligations of any Vessel Owner Guarantor under Section 7.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 7.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Vessel Owner Guarantor, any Loan Party or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the rights of subrogation and contribution established in Sections 7.04 and 7.10, respectively) that is valid and enforceable, not void or voidable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Section 7.09 Release of Guarantors. (a) If, in compliance with the terms and provisions of the Loan Documents, a Collateral Vessel, or all of the Equity Interests of any Vessel Owner Guarantor are sold or otherwise transferred (a “Transferred Vessel Owning Guarantor”) to a Person or Persons (other than any Loan Party), such Transferred Vessel Owning Guarantor (and any Lien on its Equity Interests) shall, upon the consummation of such sale or transfer or designation, be released from its obligations under this Agreement (including under Section 11.03) and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document and, in the case of the sale of all of the Equity Interests of the Transferred Vessel Owning Guarantor, the pledge of such Equity Interests to the Security Trustee pursuant to the Security Documents shall be released, and so long as the Borrower shall have previously provided the Security Trustee and the Facility Agent such certifications or documents as the Security Trustee and/or the Facility Agent shall reasonably request, the Security Trustee shall take, and the Lenders hereby irrevocably authorize the Security Trustee to take, such actions as are necessary to effect each release described in this Section 7.09 in accordance with the relevant provisions of the Security Documents.
(b) The Lenders hereby irrevocably authorize the Security Trustee to release a Vessel Owner Guarantor and any Lien on any property granted to or held by the Security Trustee under any Loan Document (i) that is sold or otherwise disposed of (to Persons other than any other Loan Party) upon the sale or other disposition thereof in compliance with Section 6.06 and (ii) with respect to the Collateral Vessels (and the Vessel Owner Guarantors that own such Collateral Vessels and Equity Interests in such Vessel Owner Guarantor), upon the payment in full in cash of the Facilities and the expiration and termination of all Commitments thereunder (whether at the applicable Maturity Date or pursuant to a prepayment according with Section 2.10).
(c) The Borrower may, in its discretion, following the release of any Liens pursuant to clauses (a) and (b) of this Section 7.09, wind up, liquidate or dissolve the affairs of any Vessel Owner Guarantor.
Section 7.10 Right of Contribution. Each Vessel Owner Guarantor hereby agrees that to the extent that a Vessel Owner Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Vessel Owner Guarantor shall be entitled to seek and receive contribution from and against any other Vessel Owner Guarantor hereunder which has not paid its proportionate share of such payment. Each Vessel Owner Guarantor’s right of contribution shall be subject to the terms and conditions of Section 7.04. The provisions of this Section 7.10 shall in no respect limit the obligations and liabilities of any Vessel Owner Guarantor to any Secured Party, and each Vessel Owner Guarantor shall remain liable to the Secured Parties for the full amount guaranteed by such Vessel Owner Guarantor hereunder.
Section 7.11 Keepwell. Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under Section 7.01 in respect of Swap Obligations (provided that, each Qualified ECP Guarantor shall only be liable under this Section 7.11 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 7.11, or otherwise under Section 7.01, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 7.11 shall remain in full force and effect until a discharge of Guaranteed Obligations. Each Qualified ECP Guarantor intends that this Section 7.11 constitute, and this Section 7.11 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
Article VIII
EVENTS OF DEFAULT
Section 8.01 Events of Default. Upon the occurrence and during the continuance of any of the following events (each, an “Event of Default”):
(a) default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment (whether optional or mandatory) thereof or by acceleration thereof or otherwise;
(b) default shall be made in the payment of any interest on any Credit Extension or any Fee or any other amount (other than an amount referred to in clause (a) above) due under any Loan Document, when and as the same shall become due and payable, whether at the due date thereof (including a Payment Date) or at a date fixed for prepayment (whether optional or mandatory) or by acceleration or demand thereof or otherwise and such default shall continue unremedied for a period of three (3) Business Days;
(c) any representation or warranty made or deemed made by any Loan Party in (or in connection with) any Loan Document or the borrowing of Loans hereunder, or in any certificate, financial statement or other instrument furnished in connection with or required to be given or delivered by any Loan Party pursuant to any Loan Document, shall prove to have been false or misleading in any material respect (or, to the extent the underlying representation or warranty is subject to materiality or Material Adverse Effect requirement, in any respect) when so made,
deemed made or so furnished; provided that, if (i) the Borrower was not aware that such representation or warranty was incorrect at the time such representation or warranty was made, (ii) the fact, event or circumstance resulting in such incorrect representation or warranty is capable of being cured, corrected or otherwise remedied (including through the receipt and application of indemnification proceeds received from the Borrower or any Affiliate thereof), and (iii) such fact, event or circumstance resulting in such incorrect representation or warranty shall have been cured, corrected or otherwise remedied within thirty (30) days;
(d) default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in Section 5.02(a), Section 5.03(a) (as it relates to a Loan Party), Section 5.08, Section 5.13, Section 5.16, Section 5.17(b), Section 5.18, Section 5.21 or in Article VI, and, solely in the case of a default under Section 5.16 and Section 5.18, such default continues for thirty (30) days after written notice thereof from the Facility Agent to the Borrower (or such longer period as may be reasonably necessary to cure such default, provided that, the applicable Loan Party is diligently pursuing such cure and such default would not reasonably be expected to result in a Material Adverse Effect;
(e) default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in any Loan Document (other than those specified in clause (a), (b) or (d) above) and such default shall continue unremedied or shall not have been waived (i) in the case of the Agency Fee Letter, for a period of five Business Days, and (ii) in the case of any other covenant, condition or agreement for a period of 30 days after the earlier of (x) any Loan Party obtaining knowledge thereof and (y) written notice thereof from the Facility Agent or the Required Lenders to the Borrower;
(f)
(i) any Company shall (1) fail to pay any principal, premium or interest, regardless of amount, due in respect of any Indebtedness (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, and such failure results in the actual acceleration of such Indebtedness prior to its stated maturity or (2) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (2) is to cause, or to permit the holder or holders of such Indebtedness or a trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor, and, in each case under this clause (ii), such Indebtedness is actually accelerated or becomes subject to a mandatory offer to purchase; provided that, it shall not constitute an Event of Default pursuant to this clause (f)(i) unless the aggregate amount of all such Indebtedness referred to in clauses (1) and (2) of the Borrower and the Pledgor equals or exceeds $50,000,000 at any one time (or, in the case of the Vessel Owner Guarantors, $10,000,000 or more with respect to the Vessel Owner Guarantors (on a combined basis); provided further that, this clause (f)(i)(2) shall not apply to: (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(ii) Sponsor shall (1) fail to pay any principal, premium or interest, regardless of amount, due in respect of any Indebtedness (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, and such failure results in the actual acceleration of such Indebtedness prior to its stated maturity or (2) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred to in this clause (2) is to cause, or to permit the holder or holders of such Indebtedness or a trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due prior to its stated maturity or become subject to a mandatory offer to purchase by the obligor, and, in each case under this clause (2), such Indebtedness is actually accelerated or becomes subject to a mandatory offer to purchase; provided that, it shall not constitute an Event of Default pursuant to this clause (f)(ii)(2) unless the aggregate amount of all such Indebtedness referred to in clauses (1) and (2) of the Sponsor equals or exceeds $400,000,000 at any one time; provided further that, this clause (f)(ii)(2) shall not apply to: (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness;
(g) an Insolvency Proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Company or Sponsor or of a substantial part of the property of any Company or Sponsor, under the Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar Legal Requirement, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, provisional liquidator, rehabilitator or similar official for any Company or Sponsor for a substantial part of the property of any Company or Sponsor; or (iii) the winding-up, liquidation or provisional liquidation of any Company or Sponsor; and such proceeding or petition shall continue undismissed or unstayed for 60 days or an Order approving or ordering any of the foregoing shall be entered;
(h) any Company or Sponsor shall (i) voluntarily commence any proceeding or file any petition seeking relief under the Bankruptcy Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar Legal Requirement; (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any Insolvency Proceeding or the filing of any petition described in clause (g) above; (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator, liquidator, provisional liquidator, rehabilitator or similar official for any Company or Sponsor or for a substantial part of the property of any Company or Sponsor; (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding; (v) make a general assignment for the benefit of creditors; (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due; (vii) except to the extent permitted by Section 6.05, wind up, liquidate or provisionally liquidate; or (viii) take any action for the purpose of effecting any of the foregoing;
(i) one or more Orders for the payment of money in an aggregate amount of (A) $10,000,000 or more with respect to the Vessel Owner Guarantors (on a combined basis) and (B) $50,000,000 or more with respect to the Borrower and the Pledgor (on a combined basis), in each case, that are not covered by insurance from an unaffiliated insurance company with an A.M. Best financial strength rating of at least A- (it being understood that even if such amounts are covered by insurance from such an insurance company, such amounts shall count against such basket if responsibility for such amounts has been denied by such insurance company or such insurance company has not been promptly notified of such amounts) shall be rendered against any Company or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Company to enforce any such Order; provided it shall not constitute an Event of Default pursuant
to this clause (i) if such Order is being contested in good faith by appropriate proceedings, promptly instructed and diligently pursued;
(j) one or more ERISA Events shall have occurred that, when taken together with all other such ERISA Events that have occurred, or any event similar to the foregoing shall have occurred or exists with respect to a Non-U.S. Plan, including, but not limited to, the issue of a Financial Support Direction and/or a Contribution Notice or the winding-up of the Non-U.S. Plan, in any such case that would reasonably be expected to result in a Material Adverse Effect;
(k) any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect, or shall cease to give the Security Trustee, for the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents (including a valid, enforceable, perfected First Priority (except as otherwise expressly provided in this Agreement or such Security Document) Lien on and security interest in any material portion of the Collateral purported to be covered thereby) in favor of the Security Trustee, or shall be asserted by or on behalf of any Company not to be, a valid, enforceable, perfected, (except as otherwise expressly provided in this Agreement or such Security Document) Lien on and security interest in any material portion of the Collateral covered thereby;
(l) (x) any Loan Document or any material provisions thereof shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, (y) a proceeding shall be commenced by or on behalf of any Loan Party or any Affiliate thereof, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or (z) any Loan Party (directly or indirectly) shall repudiate, revoke, terminate or rescind (or purport to do any of the foregoing) or deny any portion of its liability or obligation for the Obligations;
(m) there shall have occurred a Change in Control;
(n) a Collateral Vessel shall become a Total Loss and the Borrower shall have failed to prepay the relevant portion of the Loans within the time period required by Section 2.10(b)(i);
(o) the classification of any Collateral Vessel with its Approved Classification Society is suspended, discontinued or withdrawn for a period in excess of thirty (30) days after the earlier of (x) any Loan Party obtaining knowledge thereof and (y) written notice thereof from the Facility Agent to the Borrower (unless (x) such suspension, discontinuance or withdrawal is being contested in good faith and the relevant Collateral Vessel continues to trade or (y) such suspension, discontinuance or withdrawal would not reasonably be expected to result in a Material Adverse Effect and the relevant Vessel Owner Guarantor is diligently pursuing restoration of class);
(p) the registration of any Collateral Vessel under the law of its Acceptable Flag Jurisdiction is cancelled or terminated (other than in connection with a transfer to another Acceptable Flag Jurisdiction in compliance with this Agreement);
(q) any Vessel Mortgage ceases to constitute a valid and enforceable first priority or first preferred ship mortgage Lien on the relevant Collateral Vessel (other than as a result of Permitted Liens);
(r) any insurances required to be maintained under the Loan Documents in respect of any Collateral Vessel are not maintained or are cancelled; provided that, it shall not constitute an
Event of Default pursuant to this clause (r) if the relevant Vessel Owner Guarantor and the Charterer (with respect to such Collateral Vessel) are diligently pursuing replacement insurance and (i) such failure is remedied within ten (10) Business Days of the Borrower becoming aware thereof, (ii) such Collateral Vessel is not trading without all of the requisite insurances required by Section 5.04 and (iii) the Security Trustee’s position is not impaired in any material respect;
(s) the Document of Compliance issued to any Vessel Owner Guarantor or its relevant Technical Manager, or the Safety Management Certificate or International Ship Security Certificate issued in respect of any Collateral Vessel, is withdrawn, suspended or cancelled and not restored or reissued within sixty (60) days after the earlier of (x) any Loan Party obtaining knowledge thereof and (y) written notice thereof from the Facility Agent to the Borrower (or such longer period as may be reasonably required to effect restoration, provided that, such withdrawal, suspension or cancellation would not reasonably be expected to result in a Material Adverse Effect and the relevant Vessel Owner Guarantor is diligently pursuing restoration or reissuance);
then, and in every such event (other than an event with respect to the Borrower described in clause (g) or (h) above), and at any time thereafter during the continuance of such event, the Facility Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any or all of the following actions, at the same or different times: (i) terminate forthwith the Commitments; (ii) declare the Obligations then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Obligations so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties, anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding; and (iii) exercise (and/or direct the Security Trustee to exercise) any and all of its (or the Security Trustee’s) other rights and remedies under applicable Legal Requirements, hereunder and under the other Loan Documents; and in any event with respect to the Borrower described in clause (g) or (h) above, the Commitments shall automatically terminate and the principal of the Obligations then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties, anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding.
In addition, without limiting the foregoing, in the event of a foreclosure (or other similar exercise of remedies) by the Security Trustee on any of the Collateral pursuant to a public or private sale or other disposition, the Security Trustee, the Facility Agent or any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other disposition and, in addition, the Security Trustee or the Facility Agent, as agent for and representative of all of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or other disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Security Trustee at such sale.
Section 8.02 Rescission. If at any time after termination of the Commitments or acceleration of the maturity of the Loans, the Loan Parties shall pay all arrears of interest and Fees and all payments on account of principal of the Loans owing by them that shall have become due otherwise than by acceleration (with interest on principal and Fees and, to the extent permitted by law, on overdue interest,
at the rates specified herein) and all Defaults (other than non-payment of principal of and accrued interest on the Loans due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 11.02, then upon the written consent of the Required Lenders (which may be given or withheld in their sole discretion) and written notice to the Borrower, the termination of the Commitments or the acceleration of the Loans and their consequences may be rescinded and annulled; but such action shall not affect any subsequent Default or impair any right or remedy consequent thereon. The provisions of the preceding sentence are intended merely to bind the Lenders and the other Secured Parties to a decision that may be made at the election of the Required Lenders, and such provisions are not intended to benefit any Loan Party and do not give any Loan Party the right to require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are met.
Article IX
APPLICATION OF COLLATERAL PROCEEDS
Section 9.01 Application of Proceeds. The proceeds received by the Security Trustee in respect of any sale of, collection from or other realization upon all or any part of the Collateral, pursuant to the exercise by the Security Trustee of its remedies, or from any mortgagee’s interest insurance required pursuant to Section 5.04, shall be applied, in full or in part, together with any other sums then held by or distributed or paid to the Security Trustee or the Facility Agent pursuant to this Agreement or any other Loan Document (including as a result of any exercise of any right or remedy hereunder or thereunder), promptly by the Security Trustee as follows:
(a) First, to the indefeasible payment in full in cash of all reasonable and documented out-of-pocket costs and expenses, and all fees, commissions and taxes of such sale, collection or other realization (including compensation to the Facility Agent, the Security Trustee and their respective agents and counsel, and all expenses, liabilities and advances made or incurred by the Facility Agent and/or the Security Trustee in connection therewith and all amounts for which the Facility Agent or Security Trustee are entitled to indemnification pursuant to the provisions of any Loan Document), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;
(b) Second, to the indefeasible payment in full in cash of all other reasonable costs and expenses of such sale, collection or other realization (including compensation to the other Secured Parties and their agents and counsel and all costs, liabilities and advances made or incurred by the other Secured Parties in connection therewith), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;
(c) Third, without duplication of amounts applied pursuant to clauses (a) and (b) above, to the indefeasible payment in full in cash, pro rata, of interest constituting Obligations (including ordinary course settlement amounts and any related interest expense payable pursuant to any Interest Rate Hedging Agreement), in each case, equally and ratably in accordance with the respective amounts thereof then due and owing (it being agreed that, for purposes of applying this clause (c), all interest will be deemed payable in accordance with this Agreement regardless of whether such claims are allowed in any proceeding described in Section 8.01(g) or (h));
(d) Fourth, without duplication of amounts applied pursuant to clauses (a) through (c) above, to the indefeasible payment in full in cash, pro rata, of principal and other amounts
constituting Obligations (including breakage, termination and other payments (including any related interest expense) under any Interest Rate Hedge Agreements in connection therewith or any Interest periodic payments due under Hedging Obligations), in each case, equally and ratably in accordance with the respective amounts thereof then due and owing (it being agreed that, for purposes of applying this clause (d), all amounts described herein will be deemed payable in accordance with this Agreement regardless of whether such claims are allowed in any proceeding described in Section 8.01(g) or (h));
(e) Fifth, to the extent proceeds remain after the application pursuant to preceding clauses (a) through (d), to the indefeasible payment in full in cash, pro rata, of interest and other amounts constituting Secured Obligations (other than principal), and any fees, premiums, interest and scheduled periodic payments due under Bank Product Obligations, in each case equally and ratably in accordance with the respective amounts thereof then due and owing;
(f) Sixth, to the extent proceeds remain after the application pursuant to preceding clauses (a) through (e), to the indefeasible payment in full in cash, pro rata, of the principal amount of the Secured Obligations (including principal on any Bank Product Obligations then due and owing);
(g) Seventh, to the indefeasible payment in full in cash, pro rata, to any other Secured Obligations then due and owing with any balance to be paid to the Facility Agent, for the ratable benefit of the Bank Product Providers, as cash collateral;
(h) Eighth, the balance, if any, to the Person lawfully entitled thereto (including the applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may direct;
provided that, in each case, for the avoidance of doubt, in no event shall the proceeds of any Collateral pledged by a Vessel Owner Guarantor or any payment made by a Vessel Owner Guarantor be applied to payment of any Excluded Swap Obligations of such Vessel Owner Guarantor.
In the event that any such proceeds are insufficient to pay in full the items described in clauses (a) through (h) of this Section 9.01, the Loan Parties shall remain liable, jointly and severally, for any deficiency.
Article X
THE FACILITY AGENT AND THE SECURITY TRUSTEE
Section 10.01 Appointment. (a) Each Lender hereby irrevocably designates and appoints (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably designate and appoint and by accepting the benefits of the Collateral, such Bank Product Provider shall be deemed to irrevocably designate and appoint) each of the Facility Agent and the Security Trustee as an agent of such Lender under this Agreement and the other Loan Documents and each of the Facility Agent and the Security Trustee hereby accepts such appointment. Each Lender irrevocably authorizes (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to irrevocably authorize and by accepting the benefits of the Collateral, such Bank Product Provider shall be deemed to irrevocably authorize) each Agent, in such capacity, through its agents or employees, to take such actions on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to such Agent by the terms of this Agreement and the
other Loan Documents, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article X are solely for the benefit of the Agents, the Lenders, the Bank Product Providers and the Bank Product Providers, and no Loan Party shall have rights as a third party beneficiary of any such provisions. Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and any rights of the Secured Parties with respect thereto as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents. In performing its functions and duties hereunder, each Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for any Loan Party or any of their respective Subsidiaries. Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Facility Agent or the Security Trustee is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties. No Interest Rate Hedge Agreement will create (or be deemed to create) in favor of any Bank Product Provider that is a party thereto any rights to manage or release any Collateral under the Loan Documents except as expressly provided in this Agreement.
(b) Each Lender irrevocably appoints each other Lender, and the Security Trustee irrevocably appoints the Facility Agent, as its agent and bailee for the purpose of perfecting Liens (whether pursuant to Section 8-301(a)(2) of the UCC or otherwise), for the benefit of the Secured Parties, in assets in which, in accordance with the UCC or any other applicable Legal Requirement, a security interest can be perfected by possession or control. Should any Lender (other than, to the extent a Lender, the Security Trustee or the Security Trustee) obtain possession or control of any such Collateral, such Lender shall notify the Security Trustee thereof, and, promptly following the Security Trustee’s request therefor, shall deliver such Collateral to the Security Trustee or otherwise deal with such Collateral in accordance with the Security Trustee’s instructions. The Lenders hereby acknowledge and agree (and by entering into a Bank Product Agreement, each Bank Product Provider shall be deemed to acknowledge and authorize) that the Security Trustee may act as the Security Trustee for the Secured Parties.
Section 10.02 Agent in Its Individual Capacity. Each Person serving as an Agent hereunder, to the extent (and for so long as) such Agent is also a Lender hereunder, shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, any Company or any Affiliate thereof as if it were not an Agent hereunder and without duty to account therefor to the Lenders.
Section 10.03 Exculpatory Provisions. (a) No Agent shall have any duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, regardless of whether a Default has occurred and is continuing (i) no Agent shall be subject to any fiduciary or other implied duties, (ii) no Agent shall have any duty to take any discretionary action or exercise any discretionary rights and powers expressly contemplated hereby or by the other Loan Documents, except as directed in writing by, or with the written consent of, the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02), each Agent shall be entitled to refrain from any act or the taking of any action (including the failure to take an action) in connection herewith or any of the other Loan Documents or from the exercise of any power, discretion or authority vested in it hereunder or thereunder unless and until such
Agent shall have received instructions in respect thereof from the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 11.02) and, upon receipt of such instructions from the Required Lenders (or such other Lenders, as the case may be), such Agent shall be fully protected and entitled to act or (where so instructed) refrain from acting, or to exercise such power, discretion or authority, in accordance with such instructions; provided that, no Agent shall be required to risk its own funds or take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability, if the Agent is not indemnified to its satisfaction, or that is contrary to any Loan Document or applicable Legal Requirements including, for the avoidance of doubt, any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a foreclosure, modification or termination of property of a Defaulting Lender under any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose or shall be liable for the failure to disclose, any information relating to any Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.
(b) No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as any Agent shall believe in good faith shall be necessary, under the circumstances as provided in Section 9.01 or Section 11.02 or otherwise as expressly required herein) or in the absence of its own gross negligence or willful misconduct as determined by a final and non-appealable judgment of a court of competent jurisdiction. No Agent shall be deemed to have knowledge of any Default unless and until written notice (in accordance with Section 11.01(a)) thereof describing such Default is given to such Agent by the Borrower or a Lender. No Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or the sufficiency of any Collateral or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document. Each party to this Agreement acknowledges and agrees that the Facility Agent and/or the Security Trustee may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Facility Agent and/or the Security Trustee, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of the Borrower and the other Loan Parties. No Agent shall be liable for any action taken or not taken by any such service provider. Neither any Agent nor any of its officers, partners, directors, employees or agents shall be liable to the Lenders or the Loan Parties for any action taken or omitted by any Agent under or in connection with any of the Loan Documents. The Facility Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality of the foregoing, the Facility Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Institution or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Institution.
(c) No Agent nor any of its officers, partners, directors, employees or agents shall be liable to Lenders or the Borrower for any action taken or omitted by any Agent under or in connection
with any of the Loan Documents except to the extent caused by such Agent’s gross negligence or willful misconduct, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(d) No Agent shall be liable for interest on any money received by it except as agreed in writing with the Borrower or Lender.
(e) Except for the exercise of reasonable care in the custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, no Agent shall have any duty as to any Collateral or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. An Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equivalent to that which the applicable Agent, in its individual capacity, accords its own property consisting of similar instruments or interests; provided that, neither the Security Trustee nor any of the other Secured Parties nor any of their respective directors, officers, employees or agents shall have responsibility for (x) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Collateral, whether or not the Security Trustee or any other Secured Party has or is deemed to have knowledge of such matters (y) failing to demand, collect or realize upon all or any part of the Collateral or for any delay in doing so or (z) failing to take any necessary steps to preserve rights against any Person with respect to any Collateral.
(f) For the avoidance of doubt, nothing in this Agreement or any other Loan Document shall require the Security Trustee to file financing statements or continuation statements or be responsible for maintaining the security interests, or perfection thereof, purported to be created as described herein, and such responsibility shall be solely that the Borrower and the other Loan Parties, and the Security Trustee shall only be responsible for the safe custody of any Collateral in its possession consistent with customary practices of other financial institutions acting in such capacity and in accordance with the preceding clause (d).
(g) The Agents reserve the right to reasonably conduct an environmental audit prior to foreclosing on any Vessel Mortgage. Each Agent reserves the right to forebear from foreclosing in its own name if to do so may expose it to undue risk due to environmental factors.
Section 10.04 Reliance by Agent. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent, or otherwise authenticated by a proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless each Agent shall have received written notice to the contrary from such Lender prior to the making of such Loan. Each Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other advisors selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or advisors.
Section 10.05 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Loan Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory, indemnification and other provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of each Agent and any
such sub-agent, and shall apply, without limiting the foregoing to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Agent. The Agents shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
Section 10.06 Successor Agent. Each Agent may resign as such at any time upon at least 10 days’ prior notice to the Lenders and the Borrower and without notice to the Bank Product Providers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, so long as no Event of Default shall have then occurred and be continuing, to appoint a successor Agent from among the Lenders. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 10 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent satisfactory to the Required Lenders, which successor shall be a commercial banking institution or other finance or trust company organized under the laws of the United States (or any State thereof) or a United States branch or agency of a commercial banking institution, in each case, having combined capital and surplus at least $200,000,000 and otherwise reasonably satisfactory to the Required Lenders (it being understood that such combined capital and surplus shall not be required to be in excess of $500,000,000); provided that, if such retiring Agent is unable to find a commercial banking institution or other finance or trust company that is willing to accept such appointment and which meets the qualifications set forth above, and the Required Lenders so agree (which agreement shall not be unreasonably withheld) the retiring Agent’s resignation shall nevertheless thereupon become effective and the retiring (or retired) Agent shall be discharged from its duties and obligations under the Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders under any of the Loan Documents, the retired Agent shall continue to hold such collateral security until such time as a successor Agent is appointed), and the Lenders shall assume and perform all of the duties of the Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent.
Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring (or retired) Agent shall be discharged from its duties and obligations under the Loan Documents (except that in the case of any collateral security held by the Agent on behalf of the Lenders under any of the Loan Documents, the retiring or removed Agent shall continue to hold such collateral security until such time as a successor agent is appointed). The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of this Article X, Section 11.03 and Sections 11.08 to 11.10 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.
Section 10.07 Non-Reliance on Agent and Other Lenders. Each Lender and Bank Product Provider expressly acknowledges that no Agent has made any representation or warranty to it, and that no act by any Agent hereafter taken, including any consent to, and acceptance of any assignment or review of the affairs of any Loan Party of any Affiliate thereof, shall be deemed to constitute any representation or warranty by such Agent to any Lender or Bank Product Provider as to any matter, including whether such Agent has disclosed material information in their (or their Affiliates’) possession. Each Lender and Bank Product Provider acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it has deemed appropriate, conducted its own independent investigation of the financial condition and
affairs of the Loan Parties and their Subsidiaries and made its own credit analysis and decision to enter into this Agreement. Each Lender further represents and warrants that it has reviewed each document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof (including any such terms and conditions set forth, or otherwise maintained, on the Platform with respect thereto). Each Lender (and each Bank Product Provider) also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.
Section 10.08 Name Agents. The parties hereto acknowledge that the Coordinating Lead Arrangers hold their titles in name only, and that such titles confer no additional rights or obligations relative to those conferred on any Lender hereunder.
Section 10.09 Indemnification. The Lenders severally agree to indemnify each Agent in its capacity as such and each of its Related Persons (to the extent not reimbursed by the Borrower or the Vessel Owner Guarantors and without limiting the obligation of the Borrower or the Vessel Owner Guarantors to do so), ratably according to their respective outstanding Loans and Commitments in effect on the date on which indemnification is sought under this Section 10.09 (or, if indemnification is sought after the date upon which all Commitments shall have been terminated and the Loans shall have been paid in full, ratably in accordance with such outstanding Loans and Commitments as in effect immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, fines, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent or Related Person in any way relating to or arising out of, the Commitments, the Loans, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein, the Transactions or any of the other transactions contemplated hereby or thereby or any action taken or omitted by such Agent or Related Person under or in connection with any of the foregoing (IN ALL CASES, WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY AGENT OR RELATED PERSON); provided that, no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, fines, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements that are found by a final and non-appealable judgment of a court of competent jurisdiction to have directly resulted solely and directly from such Agent’s or Related Person’s, as the case may be, gross negligence or willful misconduct. The agreements in this Section 10.09 shall survive the payment of the Loans and all other amounts payable hereunder and the termination of the Commitments.
Section 10.10 Withholding Taxes. To the extent required by any applicable Legal Requirements, the Facility Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If any payment has been made to any Lender by the Facility Agent without the applicable withholding Tax being withheld from such payment and the Facility Agent has paid over the applicable withholding Tax to the IRS or any other Governmental Authority, or the IRS or any other Governmental Authority asserts a claim that the Facility Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Facility Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any
other reason, or if the Facility Agent reasonably determines that a payment was made to a Lender pursuant to this Agreement without deduction of applicable withholding tax from such payment, such Lender shall indemnify the Facility Agent fully for all amounts paid, directly or indirectly, by the Facility Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.
Section 10.11 Lender’s Representations, Warranties and Acknowledgements. (a) Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of the Companies in connection with Credit Extensions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of the Companies. No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders. Each Lender acknowledges that no Agent or Related Person of any Agent has made any representation or warranty to it. Except for documents expressly required by any Loan Document to be transmitted by an Agent to the Lenders, no Agent shall have any duty or responsibility (either express or implied) to provide any Lender with any credit or other information concerning any Loan Party or any Affiliate of a Loan Party, including the business, prospects, operations, property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of a Loan Party, that may come in to the possession of an Agent or any of its Related Persons.
(b) Each Lender represents and warrants that (i) the Loan Documents set forth the terms of a commercial lending facility and (ii) it is engaged in making, acquiring or holding commercial loans in the ordinary course and is entering into this Agreement as a Lender for the purpose of making, acquiring or holding commercial loans and providing other facilities set forth herein as may be applicable to such Lender, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument, and each Lender agrees not to assert a claim in contravention of the foregoing. Each Lender represents and warrants that it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities.
(c) Each Lender, by delivering its signature page to this Agreement or an Assignment and Acceptance Agreement, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, the Required Lenders or the Lenders, as applicable, on the Initial Borrowing Date.
Section 10.12 Security Documents and Guarantees.
(a) Each Secured Party hereby further authorizes the Facility Agent or the Security Trustee, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Guarantees, the Collateral and the Loan Documents; provided that, neither the Facility Agent nor the Security Trustee shall owe any fiduciary duty, duty of loyalty, duty of care, duty of disclosure or any other obligation whatsoever to any holder of Bank Product Obligations with respect to any Bank Product Agreement. Subject to Section 11.02, without further written consent or authorization from any Secured Party, the Facility Agent or the Security Trustee, as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or disposition of assets permitted by this Agreement, release any Lien encumbering any item of
Collateral that is the subject of such sale or other disposition of assets or to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 11.02) have otherwise consented or (ii) release any Vessel Owner Guarantor from the Guarantees pursuant to Section 7.09 or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 11.02) have otherwise consented.
(b) Anything contained in any of the Loan Documents to the contrary notwithstanding, each Loan Party, the Facility Agent, the Security Trustee and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guarantees, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Facility Agent or the Security Trustee, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Security Trustee for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Security Trustee on any of the Collateral pursuant to a public or private sale or other disposition (including pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Security Trustee (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition and the Security Trustee, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon written instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Security Trustee at such sale or other disposition.
(c) (i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Facility Agent and the Security Trustee, as applicable, shall (without notice to, or vote or consent of, any Lender, or any Affiliate of any Lender that is a party to any Bank Product Agreement) take such actions as shall be required to release its security interest in any Collateral subject to any disposition expressly permitted by the Loan Documents (other than a disposition to any Loan Party of any Subsidiary, Affiliate or family member thereof) to the extent necessary to permit the consummation of such disposition in accordance with the Loan Documents.
(ii) Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Secured Obligations (other than Secured Obligations in respect of any Bank Product Agreement and contingent indemnification obligations for which no claim or demand has been made) have been paid in full, in cash, and all Commitments have terminated or expired, upon written request of the Borrower, the Facility Agent and the Security Trustee shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreement) take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document, whether or not on the date of such release there may be outstanding Secured Obligations in respect of Bank Product Agreements. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Loan Party, or upon or as a result of the appointment of a liquidator, provisional liquidator, receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any other Loan Party or any substantial part of its property, or otherwise, all as though such payment had not been made.
(iii) Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Secured Obligations (other than Secured Obligations in respect of contingent indemnification obligations for which no claim or demand has been made) under the Facilities have been paid in full, in cash (whether at the Maturity Date or pursuant to a prepayment according with Section 2.10), and all Commitments have terminated or expired, upon written request of the Borrower, the Facility Agent and the Security Trustee shall (without notice to, or vote or consent of, any Lender, or any affiliate of any Lender that is a party to any Bank Product Agreement) take such actions as shall be required to release its security interest in all Collateral Vessels, all other Collateral granted by the Vessel Owner Guarantors that directly own such Collateral Vessels, and all Securities Collateral granted in the Equity Interests of the Vessel Owner Guarantors that directly own such Collateral Vessels and to release all guarantee obligations of such Vessel Owner Guarantors provided for in any Loan Document. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of any Loan Party, or upon or as a result of the appointment of a liquidator, provisional liquidator, receiver, intervenor or conservator of, or trustee or similar officer for, the Borrower or any other Loan Party or any substantial part of its property, or otherwise, all as though such payment had not been made.
(d) The Agents shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Security Trustee’s Lien thereon, or any certificate prepared by any Loan Party in connection therewith, nor shall the Agents be responsible or liable to the Lenders for any failure to monitor or maintain any portion of the Collateral. No Agent shall be liable for any defect or failure in a Vessel Owner Guarantor’s title to Collateral, regardless of whether such defect or failure was known to the Agent or might have been discovered upon examination or inquiry and whether capable of remedy or not.
Section 10.13 Facility Agent May File Bankruptcy Disclosure and Proofs of Claim. In case of the pendency of any Insolvency Proceeding relative to any Loan Party, the Facility Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Facility Agent shall have made any demand on any Loan Party) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(a) to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;
(b) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Facility Agent and its respective agents and counsel and all other amounts due the Facility Agent under Sections 2.05 and 10.03) allowed in such judicial proceeding; and
(c) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, provisional liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make
such payments to the Facility Agent and, in the event that the Facility Agent shall consent to the making of such payments directly to the Lenders, to pay to the Facility Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Facility Agent and its agents and counsel, and any other amounts due the Facility Agent under this Agreement. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Facility Agent, its agents and counsel, and any other amounts due the Facility Agent under this Agreement out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing contained herein shall be deemed to authorize the Facility Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Facility Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 10.14 Ship Mortgage Trust. Each Lender hereby irrevocably designates and appoints the Security Trustee as security trustee of such Lender under this Agreement and the other Loan Documents for the purpose of holding all Collateral, including the Vessel Mortgages of the Collateral Vessels and all other security on behalf of the Secured Parties, and the Security Trustee hereby accepts such appointment. The Security Trustee agrees and declares, and each of the other Secured Parties acknowledges, that, subject to the terms and conditions of this Section 10.14, the Security Trustee holds the Trust Property in trust for the Secured Parties absolutely. Each of the other Secured Parties agrees that the obligations, rights and benefits vested in the Security Trustee shall be performed and exercised in accordance with this Section 10.14. In addition, the Security Trustee and any attorney, agent or delegate of the Security Trustee may indemnify itself or himself out of the Trust Property against all liabilities, costs, fees, damages, charges, losses and expenses sustained or incurred by it or him in relation to the taking or holding of any of the Trust Property or in connection with the exercise or purported exercise of the rights, trusts, powers and discretions vested in the Security Trustee or any other such Person by or pursuant to the Vessel Mortgages and other Security Documents or in respect of anything else done or omitted to be done in any way relating to the Vessel Mortgages and other Security Documents. The Security Trustee shall, at all times, be the same institution as the Person acting as the Facility Agent under this Agreement.
Article XI
MISCELLANEOUS
Section 11.01 Notices.
(a) Notices and other communications provided for herein shall, except as provided in Section 11.01(b), be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by email transmission, as follows:
(i) if to any Loan Party, to the Borrower at:
Venture Global Shipping Holdings, LLC
1001 19th Street North
Suite 1500
Arlington, VA 22209
Attention: Chief Financial Officer
Telephone: [***]
Email: [***]
With a copy to
Attention: General Counsel
E-mail: [***]
(ii) if to the Facility Agent, to it at:
ING Capital LLC
1133 Avenue of the Americas
New York, NY 10036
Attention: Agency Middle Office / Agency Loan Services
Email: [***][***]
(iii) if to the Security Trustee, to it at:
ING Capital LLC
1133 Avenue of the Americas
New York, NY 10036
Attention: Agency Middle Office / Agency Loan Services
Email: [***][***]
(iv) if to a Lender, to it at its address (or email address) set forth on Annex I or in the Assignment and Acceptance pursuant to which such Lender shall have become a party hereto;
Notice and other communications to the Lenders hereunder may (subject to Section 11.01(b)) be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Facility Agent. Any party hereto may change its address or e-mail address for notice and other communications hereunder by notice to the other parties hereto. The Facility Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that, approval of such procedures may be limited to particular notices or communications. Unless the Facility Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (including by the “return receipt requested” function, as available, return e-mail or other written acknowledgment); provided that, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.
(b) Each Loan Party hereby agrees that it will provide to the Facility Agent all information, documents and other materials that it is obligated to furnish to the Facility Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, including any such communication that (i) relates to a request for a Borrowing or other extension of credit (including any
election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder or (v) is required to be delivered to satisfy any covenant hereunder or under any other Loan Document (all such communications, collectively, the “Communications”), by transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Facility Agent (it being understood that .pdf format is acceptable) at the e-mail address(es) provided to the Borrower by the Facility Agent from time to time, other electronic communication in such other form, or in any other manner, including hard copy delivery thereof, as the Facility Agent shall require. In addition, each Loan Party agrees to continue to provide the Communications to the Facility Agent in the manner specified in this Agreement or any other Loan Document or in such other form, including hard copy delivery thereof, as the Facility Agent shall require. Nothing in this Section 11.01 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.
(c) To the extent consented to by the Facility Agent in writing from time to time, the Facility Agent agrees that receipt of the Communications by the Facility Agent at its e-mail address(es) set forth above shall constitute effective delivery of the Communications to the Facility Agent for purposes of the Loan Documents.
(d) Each Loan Party and the Facility Agent and the Security Trustee further agree that the Facility Agent and the Security Trustee shall make the Communications available to the other Agents or the Lenders by posting the Communications on a Platform. The Platform and any Approved Electronic Communications are provided “as is” and “as available.” The Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent in connection with the Communications or the Platform. In no event shall any Agent have any liability to any Loan Party, any Lender or any other Person for damages of any kind, whether or not based on strict liability and including direct or indirect, punitive, special, incidental or consequential damages, losses or expenses (whether in contract, tort or otherwise) arising out of or related to any Loan Party’s or any Agent’s transmissions of Communications through the Internet (including the Platform). Notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (a) of notification that such notice or communication is available and identifying the website address therefor. Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct or gross negligence of the Facility Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
(e) The Facility Agent agrees that the receipt of the Communications by the Facility Agent at its e-mail address shall constitute effective delivery of the Communications to the Facility Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Facility Agent in writing (including by electronic communication) from time
to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Facility Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
(f) Each Loan Party, each Lender and each Agent agrees that the Facility Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Facility Agent’s customary document retention procedures and policies.
(g) Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Material Non-Public Information with respect to Pledgor, its Subsidiaries or their securities for purposes of United States federal or state securities laws. In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither the Borrower nor the Facility Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.
Section 11.02 Waivers; Amendment. (a) No failure or delay by any Agent or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of each Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 11.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether any Agent or any Lender may have had notice or knowledge of such Default at the time. No notice or demand on any Loan Party in any case shall entitle any Loan Party to any other or further notice or demand in similar or other circumstances.
(b) Subject to Sections Section 2.16(c), Section 11.02(d) and Section 11.02(e), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Loan Parties and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Facility Agent, the Security Trustee (in the case of any Security Document) and the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided that, no such agreement shall:
(i) increase or extend the expiry date of any Commitment of any Lender without the written consent of such Lender (it being understood that no amendment, modification, termination, waiver or consent with respect to any condition precedent, covenant or Default (or any definition used, respectively, therein) shall constitute an
increase in or an extension of the expiry date of any Commitment of any Lender for purposes of this clause (i));
(ii) reduce the principal amount or premium, if any, of any Loan or reduce the rate of interest thereon (including, for the avoidance of doubt, the Applicable Margin) (other than waiver of any increase in the rate of interest pursuant to Section 2.06(b)), or reduce any Fees payable hereunder, or change the form or currency of payment of any Obligation, without the written consent of each Lender directly affected thereby;
(iii) postpone or extend the maturity of any Loan or any scheduled date of payment of or the installment otherwise due on the principal amount of any Loan under Section 2.09, or any date for the payment of any interest, premium or fees payable hereunder, or reduce the amount of, waive or excuse any such payment (other than a waiver of any increase in the rate of interest pursuant to Section 2.06(b)), or postpone the scheduled date of expiration of any Commitment without the written consent of each Lender directly affected thereby;
(iv) change Section 11.04(b) in a manner which further restricts assignments thereunder without the written consent of each Lender directly affected thereby (provided that, any amendment that clarifies any ambiguity or defect in the definition or use of Disqualified Institutions shall require only the consent of the Required Lenders and the Loan Parties);
(v) change Section 2.10(d), Section 2.10(e), Section 2.14(b), Section 2.14(c) or Section 9.01 or other corresponding sections of any other Loan Document in a manner that would alter the order of or the pro rata sharing of payments or setoffs required thereby, without the written consent of each Lender directly affected thereby;
(vi) change the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document (including this Section 11.02) specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be);
(vii) release any Vessel Owner Guarantor from its Guarantees, or limit its liability in respect of such Guarantee or release the Borrower from its obligations under the Loan Documents, without the written consent of each Lender;
(viii) except as expressly permitted in this Agreement or any Security Document, release any Collateral from the Liens of the Security Documents or alter the relative priorities of the Secured Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Secured Obligations equally and ratably with the other Secured Obligations), in each case without the written consent of each Lender;
(ix) Reserved;
(x) have the effect of subordinating the Obligations or the Liens of the Security Trustee under the Loan Documents to any other Indebtedness without the written consent of each Lender;
(xi) (x) amend or otherwise modify Section 6.10 (or for the purposes of determining compliance with Section 6.10, any defined terms used therein), or (y) waive or consent to any Default resulting from a breach of Section 6.10 without the written consent of each Lender;
(xii) amend or otherwise modify the definitions of Sanctions, Sanctions Authority or Anti-Terrorism Law or Section 3.20, Section 6.18, or Section 6.19 without the written consent of each Lender;
provided further that, no such agreement shall amend, modify or otherwise affect the rights or duties of the Facility Agent or the Security Trustee without the prior written consent of the Facility Agent or the Security Trustee, as the case may be. Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Borrower, the Required Lenders and the Facility Agent (and, if their rights or obligations are affected thereby, the Security Trustee) if (1) by the terms of such agreement the Commitments of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment, (2) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement, and (3) Section 2.16(b) is complied with.
(c) Without the consent of any other Person, the applicable Loan Party or Loan Parties and the Facility Agent and/or Security Trustee may (in its or their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, or as required by applicable Legal Requirements to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or assets so that the security interests therein comply with applicable Legal Requirements.
(d) Notwithstanding the foregoing, if, following the Closing Date, the Facility Agent and the Borrower shall have agreed in their sole and absolute discretion that there is an ambiguity, inconsistency, manifest error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Loan Documents, then the Facility Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (it being understood that the Facility Agent has no obligation to agree to any such amendment).
(e) Reserved.
(f) In relation to each Lender, the provisions in Sections 3.22, 5.21, 6.18, and 6.19 (collectively, the “Sanctions Clauses”) shall only apply for the benefit of that Lender to the extent that such benefit and the exercise of any rights based on such Sections will not result in a violation of, or conflict with or liability under any provision of Council Regulation (EC) No. 2271/96 of 22 November 1996 (the “EU Blocking Regulation”), Section 7 of the German Foreign Trade Ordinance (§ 7 Außenwirtschaftsverordnung) or any other applicable anti-boycott or similar laws or regulations (together with the EU Blocking Regulation and Section 7 of the German Foreign Trade Ordinance, and any similar successor EU Law, the “Anti-Boycott Regulations”), to the extent that compliance with the Sanctions Clauses would violate some or all of the Anti-Boycott Regulations. In connection with any amendment, waiver, determination or direction relating to any part of the Sanctions Clauses of which a Lender does not have the benefit because such benefit would result in a violation by that Lender of any Anti-Boycott
Regulations (each a “Restricted Lender”), the Commitment or participation in the Loans of that Restricted Lender will be excluded for the purpose of determining whether the consent of the Required Lenders (or all Lenders, if applicable) has been obtained or whether the determination or direction by the Required Lenders (or all Lenders, if applicable) has been made, provided that, the Facility Agent is only permitted to exclude the Commitment or participation of a Lender if, following the Facility Agent’s request for such consent, determination or direction, that Lender notifies the Facility Agent that it is a Restricted Lender for such purpose.
Section 11.03 Expenses; Indemnity. (a) The Loan Parties agree, jointly and severally, to pay, promptly upon demand:
(i) all reasonable and documented out-of-pocket costs and expenses incurred by the Coordinating Lead Arrangers, the Facility Agent and the Security Trustee (including (i) the reasonable and documented fees, disbursements and other charges of Advisors for the Coordinating Lead Arrangers, the Facility Agent and the Security Trustee), in connection with the syndication of the Loans and Commitments, the preparation, negotiation, execution and delivery of the Loan Documents, the administration of the Credit Extensions and Commitments (including with respect to the establishment and maintenance of a Platform and including the reasonable fees and disbursements of counsel as may be necessary or appropriate in the judgment of the Agents, and the charges of IntraLinks, SyndTrak, Debt Domain or a similar service), the perfection and maintenance of the Liens securing the Collateral and any actual or proposed amendment, supplement or waiver of any of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated);
(ii) all out-of-pocket costs and expenses incurred by the Coordinating Lead Arrangers, the Facility Agent, the Security Trustee, any other Agent or any Lender (including the fees, charges and disbursements of Advisors for any of the foregoing) incurred in connection with the enforcement or protection of its rights under the Loan Documents, including its rights under this Section 11.03(a), or in connection with the Loans made hereunder and the collection of the Obligations, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Obligations; provided that, in the case of charges of outside counsel, such payment shall be limited to the fees, disbursements and charges of (x) one primary counsel for the Agents and the Lenders (collectively with the Agents, taken as a group), (y) one local counsel and foreign counsel in each relevant jurisdiction for each of the Agents and the Lenders (collectively with the Agents, taken as a group) and (z) one maritime counsel in each relevant jurisdiction for each of the Agents and the Lenders (collectively with the Agents, taken as a group) (and, in each case, in the case of an actual or a potential conflict of interest, (A) one additional counsel for each affected Person (or group of similarly affected Persons), (B) one local counsel and/or foreign counsel for each affected Person (or group of similarly affected Persons) in any relevant jurisdiction and (C) one maritime counsel for each affected Person (or group of similar affected Persons) in each relevant jurisdiction); and
(iii) all Other Taxes in respect of the Loan Documents.
(b) The Loan Parties agree, jointly and severally, to indemnify the Agents, each Lender and each Related Person of each of the foregoing (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable and documented
expenses (including reasonable and documented fees, disbursements and other charges of one counsel for all Indemnitees and, if necessary, one maritime counsel, local and foreign counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions for all Indemnitees (and, in the case of an actual or potential conflict of interest of another firm of counsel (and maritime counsel and one firm of local and foreign counsel in each appropriate jurisdiction) for such affected Indemnitee))) and any and all claims, damages, losses and liabilities, fees, fines, penalties, actions, judgments, suits and related expenses, including reasonable Advisors fees, charges and disbursements (collectively, “Claims”), incurred by or asserted against any Indemnitee, directly or indirectly, arising out of, relating to or in connection with (i) the execution, delivery, performance, administration or enforcement of the Loan Documents or any agreement or instrument contemplated thereby or the performance by the parties thereto of their respective obligations thereunder, (ii) any actual or proposed use of the proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, (iv) any actual or alleged presence or Release or threatened Release of Hazardous Materials, on, at, under or from any property (A) owned, leased or operated by any Company or (B) formerly owned, leased or operated by any Company at the time of its ownership, lease or operations, (v) any Environmental Claim or threatened (in writing) Environmental Claim against any of the Companies relating to any Real Property, Collateral Vessel or other property currently or formerly owned, leased or operated by any of the Companies or relating to the operations of any of the Companies, (vi) any non-compliance with, or violation of, applicable Environmental Laws or Environmental Permits by any of the Companies or any of their businesses, operations, Real Property, Collateral Vessels and other properties, (vii) the imposition of any environmental Lien encumbering Real Property or Collateral Vessels owned, leased or operated by any Company, (viii) the consummation of the Transactions (including the syndication of the Loans and the Commitments) and the other transactions contemplated hereby or (ix) any actual or prospective claim, action, suit, litigation, inquiry, investigation, or other proceeding or preparation of a defense in connection with any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or any of their respective subsidiaries, affiliates or shareholders or otherwise, and regardless of whether any Indemnitee is a party thereto; provided that, such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses or other Claims are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted primarily from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or any of its Related Persons, (ii) a material breach by such Indemnitee or any of its Related Persons of any of its or their respective obligations under the Loan Documents or (iii) any claims brought by an Indemnitee against another Indemnitee (other than against the Facility Agent or any other Agent in its capacity as such) not arising out of any act or omission by any Loan Party or any Affiliate thereof. This Section 11.03(b) shall not apply with respect to Taxes other than any Taxes that represent Claims arising from any non-Tax claim.
(c) The Loan Parties agree, jointly and severally, that, without the prior written consent of the Agents and any affected Lender (such consent not to be unreasonably withheld, conditioned or delayed), the Loan Parties will not enter into any settlement of a Claim in respect of the subject matter of Section 11.03(b) and asserted against an Indemnitee unless such settlement includes an explicit and unconditional release from the party bringing such Claim of all Indemnitees and does not include any statement as to or an admission of fault, culpability or failure to act by or on behalf of any Indemnitee.
(d) The provisions of this Section 11.03 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans and any other Secured
Obligations, the release of any Vessel Owner Guarantor or of all or any portion of the Collateral, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, the removal or resignation of any Agent, or any investigation made by or on behalf of the Agents or any Lender. All amounts due under this Section 11.03 shall be accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.
(e) To the extent that the Loan Parties fail to indefeasibly pay any amount required to be paid by them to the Agents under clause (a) or (b) of this Section 11.03 in accordance with Section 10.03, each Lender severally agrees to pay to the Agents, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); provided that, the unreimbursed Claim was incurred by or asserted against any of the Agents in its capacity as such. For purposes of this clause (e), a Lender’s “pro rata share” shall be determined based upon its share of the principal amount of outstanding Loans and unused Commitments at the time.
(f) To the fullest extent permitted by applicable Legal Requirements, no party hereto shall assert, and each party hereto hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, exemplary, consequential or punitive damages (including any loss of profits, business or anticipated savings as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that, such waiver of special, punitive, indirect or consequential damages shall not limit the indemnification obligations of the Loan Parties to the extent such special, punitive, indirect or consequential damages are included in any third party claim with respect to which the applicable Indemnitee is entitled to indemnification under this Section 11.03. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with the Loan Documents or the transactions contemplated hereby or thereby.
(g) All amounts due under this Section 11.03 shall be payable no later than 10 Business Days after written demand (accompanied by an invoice or other reasonable documentation) therefor; provided that, any Indemnitee shall promptly refund an indemnification payment received hereunder to the extent that there is a final and non-appealable judicial determination of a court of competent jurisdiction that such Indemnitee was not entitled to indemnification with respect to such payment pursuant to this Section 11.03.
Section 11.04 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Loan Parties may not assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of the Facility Agent, the Security Trustee and each Lender, which consent may be withheld in their respective sole discretion (and any attempted assignment or transfer by any Loan Party without such consent shall be null and void ab initio). Nothing in this Agreement or any other Loan Document, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent expressly provided in clause (e) of this Section 11.04 and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement or any other Loan Document.
(b) Any Lender shall have the right at any time to assign to one or more assignees (other than any Company or any Affiliate thereof, a natural person or a Disqualified Institution) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that:
(i) the Borrower must give its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned) (provided that (A) the Borrower shall be deemed to have consented to any such assignment unless it objects thereto by written notice to the Facility Agent within ten (10) Business Days after having received notice thereof, (B) no consent of the Borrower shall be required for assignments to Lenders, Affiliates of Lenders or Approved Funds of Lenders and (C) no consent of the Borrower shall be required if an Event of Default has occurred and is continuing;
(ii) the parties to each assignment shall execute and deliver to the Facility Agent an Assignment and Acceptance, together with a processing and recordation fee of $5,000 (unless such fee is waived by the Facility Agent in its sole discretion); provided that, in the case of contemporaneous assignments by any Lender to one or more Approved Funds, only a single processing and recording fee shall be payable for such assignments;
(iii) the assignee, if it shall not then be a Lender, shall deliver to the Facility Agent an Administrative Questionnaire;
(iv) the assignee shall represent and warrant to the Borrower and the Facility Agent that it is an Eligible Assignee; and
(v) the Facility Agent must give its prior written consent (which consent shall not be unreasonably withheld, delayed or conditioned); provided that, the consent of the Facility Agent shall only be subject to the completion of the conditions in clauses (b)(ii) and (b)(iii) and the delivery to the Facility Agent of customary information and documentation reasonably requested by the Facility Agent for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations;
Subject to acceptance and recording thereof pursuant to Section 11.04(d), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement (provided that, any liability of the Borrower to such assignee under Section 2.12, 2.13 or 2.15 shall be limited to the amount, if any, that would have been payable thereunder by the Borrower in the absence of such assignment, except to the extent any such amounts are attributable to a Change in Law occurring after the date of such assignment), and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.15 and 11.03).
(c) The Facility Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at its office in New York a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive in the absence of manifest error, and
the Borrower, the Facility Agent, the Security Trustee and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement and the other Loan Documents, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, the Security Trustee and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 11.04(b) and any written consent to such assignment required by Section 11.04(b), the Facility Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 11.04(d). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with the requirements of this Section 11.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 11.04(e).
(e) Any Lender shall have the right at any time, without the consent of, or notice to the Borrower, the Facility Agent or any other Person to sell participations to any Person (other than any Company or any Affiliate thereof, a natural person, a Disqualified Institution or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that, (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Facility Agent, the Security Trustee and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; provided that, such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) is described in clauses (i), (ii) or (iii) of the proviso to Section 11.02(b) and (2) directly affects such Participant. Each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 11.04(b). To the extent permitted by Legal Requirements, each Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender; provided that, such Participant agrees in writing to be subject to Section 2.14(c) as though it were a Lender. Each Lender shall, acting for this purpose as a “non-fiduciary” agent of the Borrower, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, and the amount and terms of its participations (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender (and the Borrower, to the extent that the Participant requests payment from the Borrower) shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Proposed Treasury Regulations Section 1.163-5(b) (or any amended or successor version).
(f) A Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the prior written consent of the Borrower (which consent shall not be unreasonably withheld, delayed or conditioned) or the greater payment results from a Change in Law after the date the participation was sold to the Participant. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless such Participant agrees to comply with Section 2.15(f) as though it were a Lender (it being understood that the documentation required in Section 2.15(f) shall be delivered to the participating Lender).
(g) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any central bank, and this Section 11.04 shall not apply to any such pledge or assignment of a security interest; provided that, no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Without limiting the foregoing, in the case of any Lender that is a fund that invests in bank loans or similar extensions of credit, such Lender may, without the consent of the Borrower, the Facility Agent or any other Person, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and the Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.
(h) The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Legal Requirement, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar laws domestic or foreign, federal, state, provincial or otherwise, based on or analogous or similar to the Uniform Electronic Transactions Act.
(i) Any assignor Lender of all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) or seller of a participation hereunder shall be entitled to rely conclusively on a representation of the assignee Lender or Participant in the relevant Assignment and Acceptance or participation agreement, as applicable, that such assignee or purchaser is not a Disqualified Institution. None of the Agents shall have any responsibility or liability for monitoring the list or identities of, or enforcing provisions relating to, Disqualified Institutions. Upon request by any Lender or prospective Lender, the Facility Agent shall be permitted to disclose to such Lender or prospective Lender the identity of the Disqualified Institutions.
Section 11.05 Survival of Agreement. All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the reports, certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agents or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect so long as any Obligation is outstanding and so long as the Commitments have not expired or terminated. The provisions of Article X and Sections
2.12, 2.13, 2.15, 11.03, 11.05, 11.09, 11.10, 11.12 and Section 11.27 shall survive and remain in full force and effect regardless of the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans, or the termination of this Agreement or any provision hereof.
Section 11.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts shall be lodged with the Borrower and the Facility Agent. The words “execution,” “signed,” “signature,” and words of like import in this Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar applicable state laws based on the Uniform Electronic Transactions Act. This Agreement, the Agency Fee Letter and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Facility Agent and/or other Agents, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Facility Agent and when the Facility Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Section 11.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
Section 11.08 Right of Setoff; Marshalling; Payments Set Aside. If an Event of Default shall have occurred and be continuing, each Lender and each of its respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Legal Requirements, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) at any time owing, by such Lender or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of any Loan Party now or hereafter existing under this Agreement or any other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. None of any Agent or any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to the Facility Agent, the Security Trustee or any Lender (or to the Facility Agent or the Security Trustee, on behalf of the Lenders), or any Agent or any Lender enforces any security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any
Debtor Relief Law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
Section 11.09 Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether in contract, tort or otherwise and whether at law or in equity) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, and governed by, the law of the State of New York.
(b) Each Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, located in the Borough of Manhattan, and any appellate court from any thereof, in any suit, action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by applicable Legal Requirements, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements. Nothing in this Agreement or any other Loan Document or otherwise, however, shall affect any right that the Facility Agent, the Security Trustee, any other Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.
(c) Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding (whether in contract, tort or otherwise and whether at law or in equity) arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 11.09(b). Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process in any action or proceeding arising out of or relating to any Loan Document, in the manner provided for notices (other than email) in Section 11.01. Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, each Loan Party hereby irrevocably and unconditionally appoints Venture Global Shipping Holdings, LLC, a Delaware limited liability company, with an office for service of process delivery on the date hereof at 1001 19th Street North, Suite 1500 Arlington, VA 22209, and its successors (the “Process Agent”), as its agent to receive on behalf of such Loan Party and its property all writs, claims, process, and summonses in any action or proceeding brought against such Loan Party in the State of New York. Such service may be made by mailing or delivering a copy of such process to any Loan Party in care of the Process Agent at the address specified above for the Process Agent, and such Loan Party irrevocably authorizes and directs the Process Agent to accept such service on its behalf. Failure by the Process Agent to give notice to the applicable Loan Party, or failure of the applicable Loan Party, to receive notice of such service of process shall not impair or affect the validity of such service on the Process Agent or any such Loan Party, or of any judgment based thereon. Each Loan Party covenants
and agrees that it shall take any and all reasonable action, including the execution and filing of any and all documents that may be necessary to continue the designation of the Process Agent above in full force and effect, and to cause the Process Agent to act as such. Each Loan Party hereto further covenants and agrees to maintain at all times an agent with offices in New York City to act as its Process Agent. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Legal Requirements.
Section 11.10 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, THE TRANSACTIONS OR THE OTHER TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND WHETHER AT LAW OR IN EQUITY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.10.
Section 11.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 11.12 Confidentiality. Each of the Facility Agent, the Security Trustee, the Coordinating Lead Arrangers and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ and Approved Funds’ directors, officers, employees, financing sources, partners, trustees, agents, advisors, insurers, reinsurers, insurance brokers, reinsurance brokers, credit risk insurer and other representatives, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential pursuant to the terms hereof, and any failure of such Persons acting on behalf of the Facility Agent, the Security Trustee, a Coordinating Lead Arranger or a Lender to comply with this Section 11.12 shall constitute a breach of this Section 11.12 by the Facility Agent, the Security Trustee, such Coordinating Lead Arranger or such Lender, as applicable; provided that, in the case of disclosure to insurers, reinsurers, insurance brokers, reinsurance brokers and credit risk insurer, such Persons shall agree to be bound by the provisions of this Section 11.12 or substantially equivalent provisions), (b) to the extent (i) requested by any regulatory authority or any self-regulatory authority (such as (but not limited to) the National Association of Insurance Commissioners and the SEC) or (ii) to the extent required by applicable Legal Requirements or by any subpoena or similar legal process or in connection with any pledge or assignment made pursuant to Section 11.04(g), provided that, solely to the extent permitted by law and other than in connection with routine audits and reviews by regulatory and self-regulatory authorities, such disclosing entity shall notify the Borrower as promptly as practicable of any such requested or required disclosure in connection with any legal or regulatory proceeding and afford the Borrower an opportunity to seek protective orders or such other confidential treatment of such disclosed information as the Borrower may deem reasonable, (c) to any other party to this Agreement, (d) in connection with the exercise of any remedies under the Loan Documents or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (e) subject to an agreement containing provisions substantially the same as those of this Section 11.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any actual or prospective direct or indirect contractual counterparty (or its advisors) to any swap or derivative transaction relating to, or any other transaction under which payments may be made by reference to, the Borrower and its respective obligations, or (iii) any rating agency, on a confidential basis, for the purpose of obtaining a credit rating applicable to any Loan or Loan Party, (f) with the consent of the Borrower, (g) to an investor or prospective investor in securities issued by an Approved Fund of any Lender that also agrees that Information shall be used solely for the purpose of evaluating an investment in such securities issued by an Approved Fund of any Lender or to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in securities issued by an Approved Fund of any Lender in connection with the administration, servicing and reporting on the assets serving as collateral for securities issued by such Approved Fund (it being agreed that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information) or (h) to the extent such Information (a) is publicly available at the time of disclosure or becomes publicly available other than as a result of a breach of this Section 11.12 or (b) becomes available to the Facility Agent or any Lender on a non-confidential basis from a source other than the Pledgor, the Borrower or any Subsidiary of the Pledgor. In addition, the Agents and the Lenders may disclose the existence of this Agreement and the information about this Agreement to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, market data collectors, similar service providers to the lending industry, and service providers to the Facility Agents and the Lenders in connection with the administrative and management of this Agreement and the other Loan Documents. Notwithstanding the foregoing, the Facility Agent and the Lenders (and each of their respective employees, representatives, or other agents) may disclose to taxing authorities, the tax treatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to them relating to such tax treatment and tax structure. For the purposes of this Section 11.12, “Information” shall mean all non-public information received from Pledgor and the Borrower relating to Pledgor and the Borrower or any of their respective Subsidiaries or their business, other than any such information that is available to the Facility Agent or any Lender on a non-confidential basis prior to disclosure by Pledgor and the Borrower. Any Person required to maintain the confidentiality of Information as provided in this Section 11.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person accords to its own confidential information. Notwithstanding anything to the contrary in this Section 11.12, no Information shall be disclosed to a Disqualified Institution without the Borrower’s prior written consent.
Section 11.13 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Legal Requirements, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 11.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
Section 11.14 Assignment and Acceptance. Each Lender to become a party to this Agreement (other than the Facility Agent and any other Lender that is a signatory hereto) shall do so by delivering to the Facility Agent an Assignment and Acceptance duly executed by such Lender, the Borrower (if the Borrower’s consent to such assignment is required hereunder) and the Facility Agent.
Section 11.15 Obligations Absolute. To the fullest extent permitted by applicable law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:
(a) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation, provisional liquidation, merger, amalgamation, consolidation or the like of any Loan Party;
(b) any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;
(c) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;
(d) any exchange, release or non-perfection or loss of priority of any Liens on any or all of the Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Secured Obligations;
(e) any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or
(f) any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.
Section 11.16 Waiver of Defenses; Absence of Fiduciary Duties. (a) Each of the Loan Parties hereby waives any and all suretyship defenses available to it as a Vessel Owner Guarantor arising out of the joint and several nature of its respective duties and obligations hereunder (including any defense contained in Article VII).
(b) Each of the Loan Parties agrees that in connection with all aspects of the transactions contemplated hereby or by the other Loan Documents and any communications in connection therewith, the Loan Parties and their respective Affiliates, on the one hand, and each Lender and each Agent, on the other hand, will have a business relationship that does not create, by implication or otherwise, any fiduciary duty on the part of any Lender or any Agent or any of their respective Affiliates, and no such duty will be deemed to have arisen in connection with any such transactions or communications.
(c) Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its affiliates with respect to the
transactions contemplated hereby or the exercise of rights or remedies with respect thereto or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.
Section 11.17 Patriot Act; Beneficial Ownership Regulation Notice. Each Lender hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it may be required to obtain, verify and record information that identifies the Loan Parties and Responsible Officers thereof, which information includes the name, address and taxpayer identification number of each Loan Party and other information that will allow such Lender to identify such Loan Party and Responsible Officers in accordance with the Patriot Act and the Beneficial Ownership Regulation, and each Loan Party agrees to provide such information from time to time to any Lender.
Section 11.18 Bank Product Providers. Each Bank Product Provider shall be deemed a third party beneficiary hereof and of the provisions of the other Loan Documents for purposes of any reference in a Loan Document to the parties for whom the Facility Agent is acting. The Facility Agent hereby agrees to act as agent for such Bank Product Providers and, by virtue of entering into a Bank Product Agreement, the applicable Bank Product Provider shall be automatically deemed to have appointed the Facility Agent as its agent and to have accepted the benefits of the Loan Documents; it being understood and agreed that the rights and benefits of each Bank Product Provider under the Loan Documents consist exclusively of such Bank Product Provider’s being a beneficiary of the Liens and security interests (and, if applicable, guarantees) granted to the Security Trustee and the right to share in payments and collections out of the Collateral as more fully set forth herein. In addition, each Bank Product Provider, by virtue of entering into a Bank Product Agreement, shall be automatically deemed to have agreed that the Facility Agent shall have the right, but shall have no obligation, to establish, maintain, relax, or release reserves in respect of the Bank Product Obligations and that if reserves are established there is no obligation on the part of the Facility Agent to determine or insure whether the amount of any such reserve is appropriate or not. In connection with any such distribution of payments or proceeds of Collateral, the Facility Agent shall be entitled to assume no amounts are due or owing to any Bank Product Provider unless such Bank Product Provider has provided a written certification (setting forth a reasonably detailed calculation) to the Facility Agent as to the amounts that are due and owing to it and such written certification is received by the Facility Agent a reasonable period of time prior to the making of such distribution. The Facility Agent shall have no obligation to calculate the amount due and payable with respect to any Bank Products, but may rely upon the written certification of the amount due and payable from the relevant Bank Product Provider. In the absence of an updated certification, the Facility Agent shall be entitled to assume that the amount due and payable to the relevant Bank Product Provider is the amount last certified to the Facility Agent by such Bank Product Provider as being due and payable (less any distributions made to such Bank Product Provider on account thereof). The Borrower may obtain Bank Products from any Bank Product Provider, although the Borrower is not required to do so. The Borrower acknowledges and agrees that no Bank Product Provider has committed to provide any Bank Products and that the providing of Bank Products by any Bank Product Provider is in the sole and absolute discretion of such Bank Product Provider. Notwithstanding anything to the contrary in this
Agreement or any other Loan Document, no provider or holder of any Bank Product shall have any voting or approval rights hereunder (or be deemed a Lender) solely by virtue of its status as the provider or holder of such agreements or products or the Obligations owing thereunder, nor shall the consent of any such provider or holder be required (other than in their capacities as Lenders, to the extent applicable) for any matter hereunder or under any of the other Loan Documents, including as to any matter relating to the Collateral or the release of Collateral or Vessel Owner Guarantors.
Section 11.19 EXCLUDED SWAP OBLIGATIONS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN ANY OTHER LOAN DOCUMENT, (I) ANY EXCLUDED SWAP OBLIGATIONS SHALL BE EXCLUDED FROM (X) THE DEFINITION OF “SECURED OBLIGATIONS” (OR ANY EQUIVALENT DEFINITION) CONTAINED HEREIN OR IN ANY SECURITY DOCUMENT AND (Y) THE DEFINITION OF “GUARANTEED OBLIGATIONS” (OR ANY EQUIVALENT DEFINITION) IN THE GUARANTEE OR IN ANY OTHER GUARANTEE OF THE GUARANTEED OBLIGATIONS; (II) NO LIEN GRANTED PURSUANT TO ANY SECURITY DOCUMENT SHALL SECURE ANY EXCLUDED SWAP OBLIGATIONS; AND (III) NO EXCLUDED SWAP OBLIGATIONS SHALL BE GUARANTEED PURSUANT TO THE GUARANTEE OR ANY OTHER GUARANTEE OF THE GUARANTEED OBLIGATIONS.
Section 11.20 Parallel Debt Owed by the Borrower to the Security Trustee. For the purpose of taking and ensuring the continuing validity of Liens created or to be created under the Loan Documents, notwithstanding any contrary provisions in this Agreement or the other Loan Documents:
(a) the Borrower irrevocably and unconditionally undertakes to pay to the Security Trustee (the “Parallel Debt”) amounts equal to, and in the currency of, all present and future amounts payable by it to a Secured Party under this Agreement and/or any other Loan Document (the “Original Obligations”) as and when each amount falls due for payment under the relevant Loan Document;
(b) the Security Trustee shall have an own independent right to demand and receive payment of the Parallel Debt;
(c) the Parallel Debt shall not limit or affect the existence of the Original Obligations for which the relevant Secured Parties shall have each an independent right to demand payment;
(d) notwithstanding clauses (a) through (c) above, payments by the Borrower of any amounts in respect of the Parallel Debt shall to the same extent decrease and be a good discharge of the corresponding Original Obligations owing to the relevant Secured Parties and payment by the Borrower of its Original Obligations to relevant Secured Parties shall to the same extent decrease and discharge the Parallel Debt owing by the Borrower to the Security Trustee;
(e) the Parallel Debt is owed to the Security Trustee in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and the Loan Documents shall secure the Parallel Debt so owing;
(f) without limiting or affecting the Security Trustee’s right to protect, preserve or enforce its rights under any Security Document, the Security Trustee undertakes to each Secured Party not to exercise its rights in respect of the Parallel Debt without the consent of the relevant Secured Parties; and
(g) the Security Trustee undertakes to pay to the Secured Parties any amount collected or received by it in payment or partial payment of the Parallel Debt and shall distribute any
amount so received to the Secured Parties in accordance with the terms of this Agreement as if such amounts had been received in respect of the Original Obligations.
For the avoidance of doubt, this Section 11.20 is intended to be protective and is not intended to, and does not, create any incremental liability or independent Event of Default as compared to the rest of this Credit Agreement.
Section 11.21 Judgment Currency. (a) The Loan Parties’ obligations hereunder and under the other Loan Documents to make payments in Dollars (the “Obligation Currency”), shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than the Obligation Currency, except to the extent that such tender or recovery results in the effective receipt by the Facility Agent, the Security Trustee or the respective Lender of the full amount of the Obligation Currency expressed to be payable to the Facility Agent, the Security Trustee or such Lender under this Agreement or the other Loan Documents. If for the purpose of obtaining or enforcing judgment against any Loan Party in any court or in any jurisdiction, it becomes necessary to convert into or from any currency other than the Obligation Currency (such other currency being hereinafter referred to as the “Judgment Currency”) an amount due in the Obligation Currency, the conversion shall be made, at the rate of exchange (as quoted by the Facility Agent or if the Facility Agent does not quote a rate of exchange on such currency, by a known dealer in such currency designated by the Facility Agent) determined, in each case, as of the day on which the judgment is given (such day being hereinafter referred to as the “Judgment Currency Conversion Date”).
(b) If there is a change in the rate of exchange prevailing between the Judgment Currency Conversion Date and the date of actual payment of the amount due, each Loan Party jointly and severally covenants and agrees to pay, or cause to be paid, such additional amounts, if any (but in any event not a lesser amount), as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the rate of exchange prevailing on the date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial award at the rate or exchange prevailing on the Judgment Currency Conversion Date.
(c) For purposes of determining any rate of exchange for this Section 11.21, such amounts shall include any premium and costs payable in connection with the purchase of the Obligation Currency.
Section 11.22 Waiver of Sovereign Immunity. Each of Pledgor, the Borrower, the Vessel Owner Guarantors, in respect of itself, its Subsidiaries, its process agents, and its properties and revenues, hereby irrevocably agrees that, to the extent that such Loan Party, its Subsidiaries or any of its properties has or may hereafter acquire any right of immunity, whether characterized as sovereign immunity or otherwise, from any legal proceedings, whether in the United States, the Marshall Islands, Liberia or elsewhere, to enforce or collect upon the Loans or any Loan Document or any other liability or obligation of such Loan Party or any of its Subsidiaries related to or arising from the transactions contemplated by any of the Loan Documents, including, without limitation, immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, such Loan Party, for itself and on behalf of its Subsidiaries, hereby expressly waives, to the fullest extent permissible under applicable law, any such immunity, and agrees not to assert any such right or claim in any such proceeding, whether in the United States, the Marshall Islands, Liberia or elsewhere. Without limiting the generality of the foregoing, each Loan Party further agrees that the waivers set forth in this Section 11.22, shall have the fullest extent permitted under the
Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.
Section 11.23 Acknowledgment and Consent to Bail-In. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
Section 11.24 Certain ERISA Matters. Notwithstanding anything to the contrary in any Loan Document:
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Facility Agent and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Pension Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, any Commitments or this Agreement;
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement;
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, any Commitment and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, any Commitment and this Agreement; or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Facility Agent, in its sole discretion, and such Lender.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Facility Agent and not, for the avoidance of doubt, to or for the benefit of any Loan Party, that the Facility Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, any Commitment and this Agreement (including in connection with the reservation or exercise of any rights by the Facility Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
Section 11.25 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Interest Rate Hedging Agreements, Interest Rate Protection Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
(b) As used in this Section 11.25, the following terms have the following meanings:
“BHC Act Affiliate” of a party shall mean an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” shall mean any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Default Right” shall have the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“QFC” shall have the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
Section 11.26 Conflicts with Charters. Notwithstanding any other provision of this Agreement or any other Loan Document, no Loan Document shall require any Loan Party to breach any Permitted Charter (not including, for the purposes of this provision, the Charters), and the Borrower and the Facility Agent shall work in good faith towards alternative arrangements or to agree alternative terms that would preserve the Liens granted or purported to be granted by such agreements; provided that, this Section 11.26 shall not apply during the continuance of an Event of Default.
Section 11.27 Limited Recourse.
Subject to clause (b) below, each Secured Party that is a party hereto acknowledges and agrees that the obligations of the Borrower, the Vessel Owner Guarantors and the Pledgor under this Agreement and the other Loan Documents, including with respect to the payment of the principal of or premium or penalty, if any, or interest on any Obligations, or any part thereof, or for any claim based thereon or otherwise in respect thereof or related thereto, are obligations solely of the Borrower, the Vessel Owner Guarantors and the Pledgor (as applicable) and shall be satisfied solely from the security and assets of the Borrower, the Vessel Owner Guarantors and the Pledgor, as applicable, pursuant to the Loan Documents, and shall not constitute a debt or obligation of Affiliates of Borrower (other than the Vessel Owner Guarantors and the Pledgor), nor of any past, present or future shareholders, partners, members, directors, officers, employees, agents, attorneys or representatives of the Borrower, the Vessel Owner Guarantors, the Pledgor and their Affiliates (collectively (but excluding the Borrower, the Vessel Owner Guarantors and Pledgor), the “Non-Recourse Parties”).
(a) Each Secured Party that is a party hereto acknowledges and agrees that, subject to clause (b) below, the Non-Recourse Parties shall not be liable for any amount payable under this Agreement or any other Loan Document, and no Secured Party shall seek a money judgment
or deficiency or personal judgment against any Non-Recourse Party for payment or performance of any obligation of the Borrower, any Vessel Owner Guarantor or the Pledgor (as applicable) under this Agreement or the other Loan Documents.
(b) The acknowledgments, agreements and waivers set out in this Section 11.27 shall be enforceable by any Non-Recourse Party and are a material inducement for the execution of this Agreement and the other Loan Documents by the Borrower, the Vessel Owner Guarantors and the Pledgor (as applicable); provided that:
(i) the foregoing provisions of this Section 11.27 shall not constitute a waiver, release or discharge of the Borrower, any Vessel Owner Guarantor or the Pledgor for any of the Indebtedness or Obligations of the Borrower, any Vessel Owner Guarantor or the Pledgor under, or any terms, covenants, conditions or provisions of, this Agreement or any other Loan Document to which any of the foregoing are party, and the same shall continue until fully and paid, discharged, observed or performed;
(ii) the foregoing provisions of this Section 11.27 shall not limit or restrict the right of any Secured Party to name the Borrower, any Vessel Owner Guarantor, the Pledgor or any other Person as defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to this Agreement, any of the Security Documents or any other Loan Document to which such Person is a party, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Non-Recourse Party out of any property other than the property of the Borrower, any Vessel Owner Guarantor, the Pledgor, or the Collateral;
the foregoing provisions of this Section 11.27 shall not in any way limit, reduce, restrict or otherwise affect any (A) the obligations of any Non-Recourse Person under a Loan Document, any Charter or any Charter Performance Guarantee, or (B) right, power, privilege or remedy of the Secured Parties (or any permitted assignee or beneficiary thereof or successor thereto) with respect to, and each and every Person (including each and every Non-Recourse Party) shall remain fully liable to the extent that such Person would otherwise be liable for its own actions with respect to, any fraud, bad faith, gross negligence or willful misrepresentation, or willful misappropriation of revenues or any other earnings, rents, issues, profits or proceeds from or of the Borrower, any Vessel Owner Guarantor , the Pledgor, the Project or the Collateral that should or would have been paid as provided in the Loan Documents or paid or delivered to the Facility Agent (or any assignee or beneficiary thereof or successor thereto) for any payment required under this Agreement or any other Loan Document.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers or other authorized signatories as of the day and year first above written.
VENTURE GLOBAL SHIPPING HOLDINGS, LLC,
as Borrower
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
VENTURE GLOBAL SHIPPING I, LLC,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
VENTURE GLOBAL SHIPPING II, LLC,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
VENTURE GLOBAL SHIPPING III, LLC,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
VENTURE GLOBAL SHIPPING IV, LLC,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
VENTURE GLOBAL SHIPPING V, LLC,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
[Signature Page to Credit and Guaranty Agreement]
ASTRA 8 LIMITED,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Chief Financial Officer
ASTRA 5 LIMITED,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Director
PROJECT KAGAMI 1 LIMITED,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Director
PROJECT KAGAMI 2 LIMITED,
as Vessel Owner Guarantor
By: /s/ Jonathan W. Thayer
Name: Jonathan W. Thayer
Title: Director
[Signature Page to Credit and Guaranty Agreement]
ING CAPITAL LLC,
as Facility Agent
By: /s/ Andrew Schaefer
Title: Managing Director
By: /s/ Matthew Rosetti
Name: Matthew Rosetti
Title: Managing Director
[Signature Page to Credit and Guaranty Agreement]
ING CAPITAL LLC,
as Security Trustee
By: /s/ Andrew Schaefer
Name: Andrew Schaeffer
Title: Managing Director
By: /s/ Matthew Rosetti
Name: Matthew Rosetti
Title: Managing Director
[Signature Page to Credit and Guaranty Agreement]
DB BANK AG,
as a Lender
By: /s/ Pierre Kahn
Name: Pierre Kahn
Title: Authorized Signatory
By: /s/ Illas Katsoulis
Name: Illas Katsoulis
Title: Authorized Signatory
DB BANK AG, NEW YORK BRANCH
as a Lender
By: /s/ Blake Yaralian
Name: Blake Yaralian
Title: Managing Director
By: /s/ Anthony Campo
Name: Anthony Campo
Title: Managing Director
[Signature Page to Credit and Guaranty Agreement]
ING CAPITAL LLC,
as a Lender
By: /s/ Andrew Schaefer
Name: Andrew Schaeffer
Title: Managing Director
By: /s/ Matthew Rosetti
Name: Matthew Rosetti
Title: Managing Director
[Signature Page to Credit and Guaranty Agreement]
Annex I
Initial Lenders and Commitments
[Omitted]
SCHEDULE 1.01(A)
COLLATERAL VESSELS; CHARTERS
[Omitted]
SCHEDULE 1.01(B)
APPROVED CLASSIFICATION SOCIETIES
[OMITTED]
SCHEDULE 1.01(C)
ACCEPTABLE FLAG JURISDICTIONS
[OMITTED]
SCHEDULE 1.01(D)
ACCEPTABLE THIRD PARTY TECHNICAL MANAGERS
[OMITTED]
SCHEDULE 1.01(E)
APPROVED BROKERS
[Omitted]
SCHEDULE 1.01(F)
DISQUALIFIED INSTITUTIONS
[Omitted]
SCHEDULE 2.09(a)
SCHEDULED AMORTIZATION
[Omitted]
SCHEDULE 2.09(a)
Amortization Schedule
[Omitted]
SCHEDULE 3.06(a)
EQUITY INTERESTS
[OMITTED]
SCHEDULE 3.06(c)
CORPORATE ORGANIZATIONAL CHART
[Omitted]
SCHEDULE 5.04
INSURANCE REQUIREMENTS
[Omitted]
SCHEDULE 6.01(b)
EXISTING INDEBTEDNESS
[Omitted]
SCHEDULE 6.04(a)
EXISTING INVESTMENTS
[Omitted]
SCHEDULE 6.09(d)
CERTAIN AFFILIATE TRANSACTIONS
[Omitted]
EXHIBIT A
[Form of]
ASSIGNMENT AND ACCEPTANCE
[Omitted]
EXHIBIT B
[Form of]
BORROWING REQUEST
[Omitted]
EXHIBIT C
[Form of]
COMPLIANCE CERTIFICATE
[Omitted]
EXHIBIT D
[Form of]
INTERCOMPANY SUBORDINATION AGREEMENT
[Omitted]
EXHIBIT E
[RESERVED]
EXHIBIT F
[Form of]
[INITIAL TERM LOAN NOTE] [TRANCHE 8 LOAN NOTE] [TRANCHE 9 LOAN NOTE]
[Omitted]
EXHIBIT G
[RESERVED]
EXHIBIT H-1
[Form of]
PORTFOLIO INTEREST CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
[Omitted]
EXHIBIT H-2
[Form of]
PORTFOLIO INTEREST CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
[Omitted]
EXHIBIT H-3
[Form of]
PORTFOLIO INTEREST CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
[Omitted]
EXHIBIT H-4
[Form of]
PORTFOLIO INTEREST CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
[Omitted]
EXHIBIT I
[Form of]
SOLVENCY CERTIFICATE
[Omitted]
EXHIBIT J
[RESERVED]
EXHIBIT K
[RESERVED]
K-1
|US-DOCS\172580851.4||
EXHIBIT L-1
[Form of]
MARSHALL ISLANDS SHIP MORTGAGE
[Omitted]
EXHIBIT L-2
[Form of]
LIBERIAN SHIP MORTGAGE
[Omitted]
EXHIBIT M
[Form of]
GENERAL ASSIGNMENT AGREEMENT
[Omitted]
EXHIBIT N
[Form of]
MANAGER’S UNDERTAKING
[Omitted]
EXHIBIT O
[Form of]
CHARTERER ASSIGNMENT
[Omitted]