MANRA SHIPPING COMPANY INC.

Exhibit 4.46
Dated
 
September 2022
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
 
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
 
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
EJITE SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
 
INC.
NAMORIK SHIPPING COMPANY INC.
as joint and several Borrowers
and
THE BANKS AND FINANCIAL INSTITUTIONS
as Lenders
and
NORDEA BANK ABP
as Swap Bank
and
NORDEA BANK ABP,
 
FILIAL I NORGE
listed in Schedule 1
as Agent, Bookrunner, Security Trustee
 
and Lead Arranger
relating to
relating to a term loan facility of up to $200,000,000
 
Index
Clause
 
Page
Schedules
Execution
THIS AGREEMENT
is made on
 
September 2022
PARTIES
(1)
MANRA SHIPPING
 
COMPANY
 
INC.,
 
JABWOT
 
SHIPPING
 
COMPANY
 
INC., ARORAE
 
SHIPPING
COMPANY
 
INC.,
 
TAMANA
 
SHIPPING
 
COMPANY
 
INC.,
 
BERU
 
SHIPPING
 
COMPANY
 
INC.,
BONRIKI
 
SHIPPING
 
COMPANY
 
INC.,
 
EJITE
 
SHIPPING
 
COMPANY
 
INC.,
 
TAONGI
 
SHIPPING
COMPANY
 
INC.
and
NAMORIK
 
SHIPPING
 
COMPANY
 
INC.
,
 
as
 
joint
 
and
 
several
 
borrowers
(together,
 
the "
Borrowers
")
(2)
THE BANKS AND FINANCIAL INSTITUTIONS
listed in
, as Lenders
(3)
NORDEA BANK ABP,
as Swap Bank
(4)
NORDEA BANK ABP,
 
FILIAL I NORGE,
as Agent
(5)
NORDEA BANK ABP,
 
FILIAL I NORGE,
as Bookrunner
(6)
NORDEA BANK ABP,
 
FILIAL I NORGE,
as Lead Arranger
(7)
NORDEA BANK ABP,
 
FILIAL I NORGE,
as Security Trustee
BACKGROUND
(A)
 
The Lenders have
 
agreed to make
 
available to the
 
Borrowers a term
 
loan facility of up
 
to the
lesser of (i) $200,000,000
 
representing approximately 60 per cent. of
 
the Purchase Price of
 
the
Ships and
 
(ii) 67.5 per
 
cent.
 
of the Initial
 
Market Value of the Ships,
 
for the purpose
 
of financing
part of the Ships' acquisition cost and for general corporate and working capital purposes.
(B)
 
The Swap
 
Bank has
 
agreed to
 
enter into
 
interest
 
rate swap
 
transactions with
 
the Borrowers
from
 
time to
 
time
 
to
 
hedge the
 
Borrowers'
 
exposure
 
under this
 
Agreement to
 
interest
 
rate
fluctuations.
(C)
 
The Lenders and the Swap Bank have
 
agreed to share pari passu in the security to
 
be granted
to the Security Trustee pursuant to this Agreement.
OPERATIVE PROVISIONS
1
 
INTERPRETATION
 
1.1
 
Definitions
Subject to Clause
 
(
General interpretation
), in this Agreement:
"
Accounts Pledges
" means, together,
 
the Earnings Account
 
Pledges in the
 
Agreed Form and,
in the singular, means any of them.
"
Advance
"
 
means
 
the
 
principal
 
amount
 
of
 
each
 
borrowing
 
by
 
the
 
Borrowers
 
under
 
this
Agreement.
 
"
Agency
 
and
 
Trust
 
Deed
"
 
means
 
the
 
agency
 
and
 
trust
 
deed
 
dated
 
the
 
same
 
date
 
as
 
this
Agreement and made between the same parties.
"
Agent
" means
 
Nordea Bank
 
Abp, filial
 
i Norge,
 
acting in
 
such capacity
 
through its
 
office
 
at
Essendrops
 
gate
 
7,
 
Postboks
 
1166,
 
Sentrum,
 
0107
 
Oslo,
 
920058817
 
MVA,
 
Norway,
 
or
 
any
successor of it appointed under clause 5 of the Agency and Trust Deed.
"
Agreed Form
" means
 
in relation
 
to any
 
document, that
 
document in
 
the form
 
approved
 
in
writing by the Agent (acting
 
on the instructions of all
 
the Lenders) or as otherwise
 
approved in
accordance
 
with
 
any
 
other
 
approval
 
procedure
 
specified
 
in
 
any
 
relevant
 
provision
 
of
 
any
Finance Document.
"
Annex VI
" means Annex
 
VI of the
 
Protocol of 1997
 
to amend the
 
International Convention for
the
 
Prevention
 
of
 
Pollution
 
from
 
Ships 1973
 
(Marpol), as
 
modified
 
by
 
the
 
Protocol
 
of
 
1978
relating thereto.
"
Arorae
" means Arorae Shipping Company Inc., a corporation incorporated
 
in the Republic of
the Xxxxxxxx
 
Islands whose
 
registered
 
address is
 
at Trust
 
Company Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Approved Broker
" means Arrow Sale &
 
Purchase (UK) Limited, Breamar Seascope
 
Limited, X.
Xxxxxxxx
 
&
 
Company
 
Limited,
 
Fearnleys
 
AS,
 
Maersk
 
Brokers
 
K.S.,
 
Xxxxxxx
 
Xxxxxx
 
&
 
Young
(London)
 
Ltd.
 
and
 
XxxxxxxXxxxx.Xxx
 
or
 
any
 
other
 
any
 
reputable
 
sale
 
and
 
purchase
 
broker
approved and appointed by the Agent subject to the prior written consent of the Borrowers.
"
Approved Flag
" means the
 
Xxxxxxxx Islands flag
 
or any other flag
 
that the Agent
 
may approve
that the Ship is registered (such approval not to be unreasonably withheld or delayed).
 
"
Approved Flag State
" means the Republic of the Xxxxxxxx Islands or any other state in which
the
 
Agent
 
may,
 
at
 
the
 
request
 
of
 
the
 
Borrowers,
 
approve
 
that
 
a
 
Ship
 
is
 
registered
 
(such
approval not to be unreasonably withheld or delayed).
"
Approved Manager
" means, in relation to each Ship:
 
(a)
 
Xxxxx Shipping Services S.A.,
 
a company
 
incorporated and
 
existing under
 
the laws of
Panama
 
having
 
its
 
registered
 
office
 
at
 
Edificio
 
Universal,
 
Piso
 
12,
 
Avenida
 
Xxxxxxxx
Xxxx, Panama,
 
Republic of
 
Panama
 
and maintaining
 
an office
 
at 16
 
Pendelis
 
Street,
175 64, Palaio Faliro, Greece; or
(b)
 
in relation
 
to any
 
Ship in
 
respect of
 
which the
 
relevant Borrower
 
exercises
 
its rights
under
 
Clause
 
(
Change
 
of
 
Approved
 
Manager
),
 
Xxxxx
 
Xxxxxxxxxx
 
Management
Limited, a company
 
incorporated and existing
 
under the
 
laws of the
 
Republic of Cyprus
having
 
its
 
registered
 
office
 
at
 
21
 
Xxxxxx
 
Xxxxxxxxxx
 
Street,
 
3026
 
Limassol, Cyprus
 
and
maintaining an office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx; or
(c)
 
any
 
other
 
company
 
which
 
the
 
Agent
 
may,
 
with
 
the
 
authorisation
 
of
 
the
 
Lenders,
approve from time
 
to time as the technical
 
and/or commercial manager of each
 
Ship
(such approval not to be unreasonably withheld or delayed).
"
Article 55 BRRD
" means Article 55 of Directive 2014/59/EU establishing a framework for the
recovery and resolution of credit institutions and investment firms.
"
Availability Period
" means the
 
period commencing
 
on the date
 
of this Agreement
 
and ending
on:
(a)
 
31 December 2022 (or such later date as the
 
Agent may, with the authorisation of the
Xxxxxxx, agree with the Borrowers); or
(b)
 
if earlier,
 
the date on
 
which the Total
 
Commitments are fully
 
borrowed, cancelled or
terminated.
"
Bail-In Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In Legislation
" means:
(a)
 
in relation to
 
an EEA Member Country
 
which has implemented, or
 
which at any
 
time
implements,
 
Article
 
55
 
BRRD,
 
the
 
relevant
 
implementing
 
law
 
or
 
regulation
 
as
described in the EU Bail-In Legislation Schedule from time to time;
 
(b)
 
in
 
relation
 
to
 
any
 
state
 
other
 
than
 
such
 
an
 
EEA
 
Member
 
Country
 
and
 
the
 
United
Kingdom,
 
any
 
analogous
 
law
 
or
 
regulation
 
from
 
time
 
to
 
time
 
which
 
requires
contractual recognition
 
of any Write
 
-down and Conversion
 
Powers contained
 
in that
law or regulation; and
in relation to the United Kingdom, the UK Bail-In Legislation.
"
Balloon
 
Instalment
"
 
means
 
any
 
balloon
 
instalment
 
referred
 
to
 
in
 
Clause
 
(
Amount
 
of
repayment instalments
).
"
Basel III
" means, together:
(a)
 
the
 
agreements
 
on
 
capital
 
requirements,
 
a
 
leverage
 
ratio
 
and
 
liquidity
 
standards
contained
 
in
 
"Basel
 
III:
 
A
 
global
 
regulatory
 
framework
 
for
 
more
 
resilient
 
banks
 
and
banking systems",
 
"Basel III: International
 
framework for
 
liquidity risk measurement,
standards
 
and
 
monitoring"
 
and
 
"Guidance
 
for
 
national
 
authorities
 
operating
 
the
countercyclical
 
capital
 
buffer"
 
published
 
by
 
the
 
Basel
 
Committee
 
on
 
Banking
Supervision in December 2010, each as amended, supplemented
 
or restated;
(b)
 
the
 
rules
 
for
 
global
 
systemically
 
important
 
banks
 
contained
 
in
 
"Global
 
systemically
important
 
banks:
 
assessment
 
methodology
 
and
 
the
 
additional
 
loss
 
absorbency
requirement -
 
Rules text"
 
published by
 
the Basel
 
Committee on
 
Banking Supervision
in November 2011, as amended, supplemented or restated; and
(c)
 
any
 
further
 
guidance
 
or
 
standards
 
published
 
by
 
the
 
Basel
 
Committee
 
on
 
Banking
Supervision relating to "Basel III".
"
Beru
" means Beru Shipping Company Inc., a
 
corporation incorporated
 
in the Republic of the
Xxxxxxxx
 
Islands
 
whose
 
registered
 
address
 
is
 
at
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Bonriki
" means Bonriki Shipping Company Inc., a
 
corporation incorporated in the Republic of
the Xxxxxxxx
 
Islands whose
 
registered
 
address is
 
at Trust
 
Company Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Bookrunner
" means Nordea Bank Abp, filial i
 
Norge, acting in such capacity through its office
at Xxxxxxxxxx xxxx 0, Postboks 1166,
 
Sentrum, 0107 Oslo,
 
920058817 MVA,
 
Norway.
 
"
Borrower
" means
 
each of
 
Manra, Jabwot,
 
Arorae,
 
Tamana,
 
Beru, Bonriki,
 
Xxxxx, Xxxxxx
 
and
Namorik and in the plural means, all of them.
"
Break Costs
" means the amount (if any) by which:
(a)
 
the
 
interest
 
which
 
a
 
Lender
 
should
 
have
 
received
 
for
 
the
 
period
 
from
 
the
 
date
 
of
receipt of
 
all or any
 
part of its
 
participation in the
 
Loan or an
 
Unpaid Sum to
 
the last
day of the current Interest Period in relation to
 
the Loan, the relevant part
 
of the Loan
or that Unpaid
 
Sum, had the principal
 
amount or Unpaid Sum
 
received been paid
 
on
the last day of that Interest Period
exceeds
(b)
 
the amount which that Xxxxxx would be able to obtain by placing
 
an amount equal to
the principal amount or Unpaid Sum received by it on deposit with a leading bank for
a period starting on the Business Day following receipt or recovery
 
and ending on the
last day of the current Interest Period.
"
Business Day
" means a
 
day (other
 
than a Saturday
 
or Sunday)
 
on which banks
 
are open
 
for
general
 
business in London, Athens and Oslo; and
(a)
 
New York;
 
and
(b)
 
(in
 
relation
 
to
 
the
 
fixing
 
of
 
an
 
interest
 
rate)
 
which
 
is
 
a
 
US
 
Government
 
Securities
Business Day.
"
Change
 
of
 
Control
"
 
means
 
the
 
occurrence
 
of
 
any
 
of
 
the
 
following
 
acts,
 
events
 
or
circumstances:
 
(a)
 
a change in the ownership of any Borrower from the date of this Agreement resulting
in
 
such
 
Borrower
 
not
 
being
 
a
 
direct
 
or
 
indirect
 
wholly-owned
 
subsidiary
 
of
 
the
Corporate Guarantor;
 
and/or
(b)
 
any person (other than any
 
financial institution acting as a passive investor)
 
becomes
at any time
 
the legal or
 
ultimate beneficial owner of
 
a higher percentage
 
of the total
issued
 
share
 
capital
 
of
 
the
 
Corporate
 
Guarantor
 
than
 
the
 
percentage
 
of
 
the
 
total
issued share capital of the
 
Corporate Guarantor beneficially owned by any member
 
or
members of the Palios Family; and/or
(c)
 
Xxxxxxxxx Xxxxxx ceases to hold directorship position in the Corporate Guarantor and
active role in the decision making in respect of the Corporate Guarantor; and/or
(d)
 
without the prior consent of
 
the Agent,
 
the shares of the
 
Corporate Guarantor
 
cease
to be listed on the New York Stock Exchange.
"
Charter
" means, in relation
 
to each Ship, any
 
time charter or other
 
contract of employment
in respect of that
 
Ship with a duration
 
exceeding (or capable
 
of exceeding) 24
 
months or any
bareboat charter in respect of such Ship and, in the plural, means all of them.
"
Charterer
"
 
means
 
any
 
entity
 
which
 
has
 
entered
 
into,
 
or
 
will
 
enter
 
into,
 
a
 
Charter
 
with
 
a
Borrower in respect of the Ship owned by it.
"
Charterparty Assignment
" means, in relation to
 
each Charter,
 
a specific deed of assignment
of the rights of the
 
Xxxxxxxx who is a party
 
to that Charter executed or to be executed by that
Borrower in favour
 
of the Security Trustee
 
in the Agreed Form and, in the plural,
 
means all of
them.
"
Code
" means the US Internal Revenue Code of 1986.
"
Commitment
" means, in
 
relation to
 
a Lender,
 
the amount set
 
opposite its name
 
in
, or,
 
as
the case may
 
require, the amount
 
specified in
 
the relevant Transfer Certificate, as that amount
may
 
be
 
reduced,
 
cancelled
 
or
 
terminated
 
in
 
accordance
 
with
 
this
 
Agreement
 
(and
 
"
Total
Commitments
" means the aggregate of the Commitments of all the Lenders).
"
Confirmation
"
 
and
 
"
Early
 
Termination
 
Date
",
 
in
 
relation
 
to
 
any
 
continuing
 
Designated
Transaction, have the meanings given in the Master Agreement.
"
Contractual Currency
" has the meaning given in Clause
 
(
Currency indemnity
).
"
Contribution
"
 
means,
 
in
 
relation
 
to
 
a
 
Lender,
 
the
 
part
 
of
 
the
 
Loan
 
which
 
is
 
owing
 
to
 
that
Lender.
"
Corporate
 
Guarantee
"
 
means
 
a
 
corporate
 
guarantee
 
of
 
the
 
obligations
 
of
 
the
 
Borrowers
under this Agreement, the Master Agreement and the other Finance Documents.
"
Corporate Guarantor
" mean Xxxxx Shipping Inc.,
 
a corporation domesticated in the Xxxxxxxx
Islands whose registered address is at
 
Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro MH96960, Xxxxxxxx Islands.
"
CRD IV
" means:
(a)
 
Regulation (EU) No
 
575/2013 of
 
the European
 
Parliament and of
 
the Council
 
of 26
 
June
2013
 
on
 
prudential
 
requirements
 
for
 
credit
 
institutions
 
and
 
investment
 
firms
 
and
amending regulation (EU) No. 648/2012,
 
as amended by Regulation (EU) 2019/876;
(b)
 
Directive 2013/36/EU of the European Parliament and of
 
the Council of 26 June 2013
on access to the activity of credit
 
institutions and the prudential supervision of credit
institutions
 
and
 
investment
 
firms,
 
amending
 
Directive
 
2002/87/EC
 
and
 
repealing
Directives 2006/48/EC and 2006/49/EC, as amended by Directive (EU) 2019/878;
 
and
(c)
 
any other law or regulation which implements Basel III.
"
Creditor Party
" means
 
the Agent,
 
the Lead
 
Arranger,
 
the Bookrunner,
 
the Security Trustee,
the Swap Bank or any Lender, whether as at the date of this Agreement or at any later time.
"
Designated Transaction
" means a Transaction which fulfils the following requirements:
(a)
 
it is entered into
 
by the Borrowers pursuant
 
to the Master Agreement with
 
the Swap
Bank;
(b)
 
its purpose is
 
the hedging of
 
all or part
 
of the Borrowers
 
'
 
exposure to
 
fluctuations in
Term
 
SOFR under this Agreement for
 
a period expiring no later
 
than the Termination
Date;
 
and
(c)
 
it is designated
 
by the Borrowers,
 
by delivery by
 
the Borrowers to
 
the Agent
 
of a notice
of
 
designation
 
in
 
the
 
form
 
set
 
out
 
in
 
(
Designation
 
Notice
),
 
as
 
a
 
Designated
Transaction for the purposes of the Finance Documents.
"
Dollars
" and
 
"
$
" means
 
the lawful
 
currency for the
 
time being
 
of the
 
United States of
 
America.
"
Drawdown Date
" means, in relation to an Advance, the date requested by the Borrowers for
the Advance to
 
be made, or
 
(as the context requires)
 
the date on
 
which the Advance
 
is actually
made.
"
Drawdown
 
Notice
" means
 
a
 
notice in
 
the form
 
set out
 
in
 
(
Drawdown Notice
)
 
(or
 
in any
other form which the Agent approves or reasonably requires).
"
Earnings
"
 
means,
 
in
 
relation
 
to
 
a
 
Ship,
 
all
 
moneys
 
whatsoever
 
which
 
are
 
now,
 
or
 
later
become, payable
 
(actually or contingently)
 
to the relevant
 
Borrower owning that
 
Ship or the
Security Trustee
 
and which
 
arise out
 
of the
 
use or
 
operation of
 
that Ship,
 
including (but
 
not
limited to):
(a)
 
except to the extent that they fall within paragraph
(i)
 
all freight, hire and passage moneys;
(ii)
 
compensation payable
 
to a
 
Borrower or
 
the Security Trustee
 
in the
 
event of
requisition of a Ship for hire;
(iii)
 
remuneration for salvage and towage services;
(iv)
 
demurrage and detention moneys;
(v)
 
damages
 
for
 
breach
 
(or
 
payments
 
for
 
variation
 
or
 
termination)
 
of
 
any
charterparty or other contract for the employment of a Ship; and
(vi)
 
all moneys which
 
are at any
 
time payable under
 
any Insurances in
 
respect of
loss of hire; and
(b)
 
if
 
and
 
whenever
 
a
 
Ship
 
is
 
employed
 
on
 
terms
 
whereby
 
any
 
moneys
 
falling
 
within
paragraphs
 
to
 
are pooled or shared with any other person,
 
that proportion of the
net receipts
 
of the
 
relevant
 
pooling or
 
sharing arrangement
 
which is
 
attributable
 
to
the Ship.
"
Earnings
 
Account
"
 
means
 
an
 
account
 
in
 
the
 
name
 
of
 
each
 
Borrower
 
with
 
the
 
Agent
designated
 
"[
name
 
of
 
the
 
Borrower
]
 
-
 
Earnings
 
Account",
 
or
 
any
 
other
 
account
 
which
 
is
designated by the Agent as an Earnings Account for the purposes of this Agreement.
"
Earnings
 
Account
 
Pledge
"
 
means,
 
in
 
respect
 
of
 
each
 
Earnings
 
Account,
 
a
 
deed
 
creating
security in the Agreed Form.
 
"
EEA
 
Member
 
Country
"
 
means
 
any
 
member
 
state
 
of
 
the
 
European
 
Union,
 
Iceland,
Liechtenstein and Norway.
"
Ejite
" means Ejite
 
Shipping Company Inc.,
 
a corporation
 
incorporated in
 
the Republic of
 
the
Xxxxxxxx
 
Islands
 
whose
 
registered
 
address
 
is
 
at
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Environmental Claim
" means:
(a)
 
any claim by any governmental, judicial or regulatory authority which arises out of an
Environmental Incident
 
or an alleged
 
Environmental Incident
 
or which relates
 
to any
Environmental Law; or
(b)
 
any
 
claim
 
by
 
any
 
other
 
person
 
which
 
relates
 
to
 
an Environmental
 
Incident or
 
to
 
an
alleged Environmental Incident,
and "
claim
" means a claim for damages, compensation, fines, penalties or any other payment
of any
 
kind whether
 
or not
 
similar to
 
the foregoing;
 
an order
 
or direction
 
to take,
 
or not
 
to
take, certain action or to
 
desist from or suspend certain action; and any form of enforcement
or regulatory action, including the arrest or attachment of any asset.
"
Environmental Incident
" means:
(a)
 
any release of Environmentally Sensitive Material from the Ship; or
(b)
 
any
 
incident
 
in
 
which
 
Environmentally
 
Sensitive
 
Material
 
is
 
released
 
from
 
a
 
vessel
other than a Ship and which involves a collision between a Ship and such other vessel
or some other
 
incident of navigation
 
or operation,
 
in either case,
 
in connection with
which
 
a
 
Ship
 
is
 
actually
 
or
 
potentially
 
liable
 
to
 
be
 
arrested,
 
attached,
 
detained
 
or
injuncted and/or a
 
Ship and/or
 
the Borrower and/or
 
any operator or
 
manager of
 
a Ship
is at fault or allegedly at fault or otherwise liable to any legal or administrative action;
or
(c)
 
any other
 
incident in which
 
Environmentally Sensitive
 
Material is
 
released otherwise
than from a Ship and
 
in connection with which
 
a Ship is actually
 
or potentially liable to
be arrested and/or
 
where any Borrower
 
and/or any operator
 
or manager of a
 
Ship is
at fault or allegedly at fault or otherwise liable to any legal or administrative action.
"
Environmental Law
" means any
 
law relating
 
to pollution
 
or protection
 
of the
 
environment,
to
 
the carriage
 
of
 
Environmentally
 
Sensitive Material
 
or
 
to
 
actual or
 
threatened
 
releases
 
of
Environmentally Sensitive Material.
"
Environmentally
 
Sensitive
 
Material
"
 
means
 
oil,
 
oil
 
products
 
and
 
any
 
other
 
substance
(including any chemical,
 
gas or other
 
hazardous or noxious
 
substance) which is
 
(or is capable
of being or becoming) polluting, toxic or hazardous.
"
Escrow Agent
" means Xxxx
 
Xxxxx LLP of
 
The Broadgate
 
Tower,
 
00 Xxxxxxxx Xxxxxx,
 
London
EC2A 2RS, United Kingdom.
"
Escrow Agreement
" means, in respect of each
 
Ship, the escrow agreement dated
 
10 August
2022 entered into between (i) Sea Trade
 
Holdings Inc., as original seller and (ii) the Corporate
Guarantor,
 
as original buyer
 
(as the same
 
may be
 
amended and/or supplemented
 
from time
to time).
"
EU Bail-In Legislation
 
Schedule
" means the
 
document described
 
as such and
 
published by
 
the
Loan Market Association (or any successor organisation) from time to time.
"
EU
 
Ship
 
Recycling
 
Regulation
"
 
means
 
Regulation
 
(EU)
 
No
 
1257/2013
 
of
 
the
 
European
Parliament and
 
of the
 
Council of
 
20 November
 
2013 on
 
ship recycling
 
and amending
 
Regulation
(EC) No 1013/2006 and Directive 2009/16/EC.
 
"
Event of Default
" means any of the events or circumstances described in
 
Clause
 
(
Events of
Default
).
"
Executive Order
"
means an order issued by the president of the United States of America.
"
Facility Office
" means the office or
 
offices notified by a
 
Lender to the Agent
 
in writing on or
before
 
the date
 
it becomes
 
a Lender
 
(or,
 
following that
 
date,
 
by not
 
less than
 
five
 
Business
Days'
 
written notice) as the
 
office or offices through which
 
it will perform its obligations under
this Agreement.
"
Fallback Interest Period
" means one Month.
"
FATCA
"
means:
(a)
 
sections 1471 to 1474 of the Code or any associated regulations;
(b)
 
any
 
treaty,
 
law
 
or
 
regulation
 
of
 
any
 
other
 
jurisdiction,
 
or
 
relating
 
to
 
an
intergovernmental
 
agreement
 
between the
 
US and
 
any other
 
jurisdiction, which
 
(in
either
 
case)
 
facilitates
 
the
 
implementation
 
of
 
any
 
law
 
or
 
regulation
 
referred
 
to
 
in
paragraph
 
above; or
(c)
 
any
 
agreement
 
pursuant
 
to
 
the
 
implementation
 
of
 
any
 
treaty,
 
law
 
or
 
regulation
referred
 
to in
 
paragraphs
 
or
 
above with
 
the US Internal
 
Revenue Service,
 
the US
government or any governmental or taxation authority in any other jurisdiction.
"
FATCA
 
Deduction
"
 
means
 
a
 
deduction
 
or
 
withholding
 
from
 
a
 
payment
 
under
 
a
 
Finance
Document required by FATCA.
"
FATCA
 
Exempt Party
" means
 
a Party that
 
is entitled to
 
receive payments free from
 
any FATCA
Deduction.
"
Finance Documents
" means:
 
(a)
 
this Agreement;
(b)
 
the Agency and Trust Deed;
(c)
 
the Master Agreement;
(d)
 
the Master Agreement Assignment;
(e)
 
the Corporate Guarantee;
(f)
 
the General Assignments;
(g)
 
the Mortgages;
(h)
 
the Accounts Pledges;
(i)
 
the Shares Pledges;
(j)
 
the Manager's Undertakings;
 
(k)
 
any Charterparty Assignment; and
(l)
 
any other document (whether creating a
 
Security Interest or not) which is
 
executed at
any
 
time by
 
any Borrower,
 
the Corporate
 
Guarantor,
 
the Approved
 
Manager or
 
any
other
 
person
 
as
 
security
 
for,
 
or
 
to
 
establish
 
any
 
form
 
of
 
subordination
 
or
 
priorities
arrangement in relation to, any amount payable to the Lenders and/or the Swap Bank
under this Agreement or any of the other documents referred to in this definition.
"
Financial Indebtedness
" means,
 
in relation
 
to a
 
person (the
 
"
debtor
"), a
 
liability of
 
the debtor:
 
(a)
 
for principal, interest or any other sum payable in respect of
 
any moneys borrowed or
raised by the debtor;
 
(b)
 
under any loan stock, bond, note or other security issued by the debtor;
 
(c)
 
under
 
any
 
acceptance
 
credit,
 
guarantee
 
or
 
letter
 
of credit
 
facility
 
or
 
dematerialised
equivalent made available to the debtor;
 
(d)
 
under a financial lease,
 
a deferred
 
purchase consideration arrangement
 
or any other
agreement
 
having the
 
commercial
 
effect
 
of a
 
borrowing or
 
raising of
 
money by
 
the
debtor;
 
(e)
 
under any
 
foreign exchange
 
transaction, any
 
interest or
 
currency swap
 
or any
 
other
kind of
 
derivative transaction
 
entered into
 
by the
 
debtor or,
 
if the
 
agreement under
which any
 
such transaction
 
is entered
 
into requires
 
netting
 
of mutual
 
liabilities, the
liability of the debtor for the net amount; or
 
(f)
 
under
 
a
 
guarantee,
 
indemnity
 
or
 
similar
 
obligation
 
entered
 
into
 
by
 
the
 
debtor
 
in
respect of a liability of another person which
 
would fall within paragraphs
 
to
 
if the
references to the debtor referred
 
to the other person.
"
Financial
 
Year
"
 
means,
 
in
 
relation
 
to
 
the
 
Corporate
 
Guarantor,
 
each
 
period
 
of
 
1
 
year
commencing on 1 January
 
in respect of which
 
its annual audited accounts
 
are or ought
 
to be
prepared.
"
Fleet Vessels
" means all of the vessels
 
(including, but not limited to, the
 
Ships) from time to
time wholly owned by members of the Group (each a "
Fleet Vessel
").
"
Funding Rate
" means any individual
 
rate notified by
 
a Lender to the
 
Agent pursuant to
 
sub-
paragraph
 
of paragraph
 
of Clause
 
(
Cost of funds
).
"
GAAP
"
 
means,
 
at
 
any
 
time,
 
the
 
most
 
recent
 
and
 
updated
 
generally
 
accepted
 
accounting
principles in the United States of America.
"
General Assignment
" means,
 
in relation
 
to each
 
Ship, a
 
first priority
 
general assignment
 
of
the Earnings, the
 
Insurances and any
 
Requisition Compensation in
 
the Agreed Form
 
and, in the
plural, means all of them.
"
Group
" means the Corporate Guarantor and all its subsidiaries (including, but not limited to,
the Borrowers) from time to time
 
during the Security
 
Period and "
member of the
 
Group
" shall
be construed accordingly.
 
"
Hong Kong Convention
" means the International
 
Maritime Organization's convention for the
Safe
 
and Environmentally
 
Sound Recycling
 
of Ships,
 
2009 together
 
with the
 
guidelines to
 
be
issued by the International Maritime Organization in connection with such convention.
"
IACS
" means the International Association of Classification Societies.
 
"
Initial Market
 
Value
" means,
 
in respect
 
of
 
a Ship,
 
the Market
 
Value
 
as determined
 
by the
valuations referred to in
, paragraph 6 of
 
(
Conditions precedent documents
).
"
Insurances
" means, in relation to a Ship:
(a)
 
all policies and
 
contracts of
 
insurance, including entries
 
of the Ship
 
in any protection
and indemnity or war risks association, effected
 
in respect of the Ship, its Earnings
 
or
otherwise
 
in
 
relation
 
to
 
the
 
Ship
 
whether
 
before,
 
on
 
or
 
after
 
the
 
date
 
of
 
this
Agreement; and
 
(b)
 
all rights and other assets relating to, or
 
derived from, any of the foregoing, including
any rights to a
 
return of a premium and any
 
rights in respect of any
 
claim whether or
not the
 
relevant
 
policy,
 
contract
 
of insurance
 
or entry
 
has expired
 
on or
 
before
 
the
date of this Agreement.
"
Interest
 
Period
"
 
means,
 
in
 
relation
 
to
 
the
 
Loan
 
or
 
any
 
part
 
of
 
the
 
Loan,
 
each
 
period
determined in accordance with
 
Clause 6 (
Interest Periods
) and, in relation
 
to an Unpaid Sum,
each period determined in accordance with Clause
 
(
Default interest
).
"
Interpolated
 
Term
 
SOFR
" means,
 
in relation
 
to
 
the Loan
 
or
 
any
 
part of
 
the Loan,
 
the rate
(rounded
 
to
 
the
 
same
 
number
 
of
 
decimal
 
places
 
as
 
Term
 
SOFR)
 
which
 
results
 
from
interpolating on a linear basis between:
(a)
 
either
(i)
 
the applicable Term SOFR (as of the
 
Quotation Day)
 
for the longest period (for
which Term SOFR is
 
available) which is
 
less than
 
the Interest Period
 
of the
 
Loan
or that part of the Loan; or
(ii)
 
if no
 
such Term
 
SOFR is
 
available for
 
a period which
 
is less
 
than the
 
Interest
Period of the Loan or
 
that part of the Loan, SOFR for
 
the day which is two
 
US
Government Securities Business Days before the Quotation Day;
 
and
(b)
 
the applicable Term SOFR (as of the Quotation Day)
 
for the shortest period (for which
Term
 
SOFR is available) which
 
exceeds the Interest
 
Period of the Loan
 
or that part of
the Loan.
"
Inventory of Hazardous Material
" means, in relation to each Ship, an
 
inventory certificate or
statement
 
of
 
compliance
 
(as
 
applicable)
 
issued
 
by
 
the
 
Ship's
 
classification
 
society
 
which
 
is
supplemented by a
 
list of any
 
and all materials
 
known to
 
be potentially hazardous
 
utilised in
the
 
construction
 
of
 
such
 
Ship
 
pursuant
 
to
 
the
 
requirements
 
of
 
the
 
EU
 
Ship
 
Recycling
Regulation.
 
"
ISM Code
" means the International Safety Management Code (including
 
the guidelines on its
implementation),
 
adopted
 
by
 
the International
 
Maritime Organisation,
 
as the
 
same may
 
be
amended or supplemented
 
from time to
 
time (and the
 
terms "
safety management
 
system
",
"
Safety Management
 
Certificate
" and
 
"
Document of
 
Compliance
" have
 
the same
 
meanings
as are given to them in the ISM Code).
"
ISPS Code
" means
 
the International
 
Ship and
 
Port Facility
 
Security Code
 
as adopted
 
by the
International
 
Maritime
 
Organisation,
 
as
 
the
 
same
 
may
 
be
 
amended
 
or
 
supplemented
 
from
time to time.
"
ISSC
" means a valid
 
and current International
 
Ship Security Certificate issued under
 
the ISPS
Code.
 
"
Jabwot
" means Jabwot Shipping Company Inc.,
 
a corporation incorporated in the Republic of
the Xxxxxxxx
 
Islands whose
 
registered
 
address is
 
at Trust
 
Company Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Lead
 
Arranger
"
 
means
 
Nordea
 
Bank
 
Abp,
 
filial
 
i
 
Norge,
 
acting
 
in
 
such
 
capacity
 
through
 
its
office at Xxxxxxxxxx xxxx 0, Xxxxxxxx 0000, Xxxxxxx, 0000 Xxxx,
 
920058817 MVA,
 
Norway.
 
"
Lender
"
 
means
 
a
 
bank
 
or
 
financial
 
institution
 
listed
 
in
 
(
Lenders
 
and
 
Commitments
)
 
and
acting
 
through
 
its
 
branch
 
indicated
 
in
 
(
Lenders
 
and
 
Commitments
)
 
(or
 
through
 
another
branch
 
notified
 
to
 
the
 
Agent
 
under
 
Clause
 
(
Change
 
of
 
Facility
 
Office
))
 
or
 
its
 
transferee,
successor or assign and, in the plural, means all of them.
"
Loan
" means the aggregate principal amount outstanding
 
under this Agreement and a "
part
of the Loan
" means an Advance, a
 
Tranche,
 
a part of a Tranche
 
or any other part of
 
the Loan
as the context may require.
"
Major Casualty
" means, in
 
relation to a Ship, any casualty
 
to that Ship in respect
 
of which the
claim or
 
the aggregate
 
of the
 
claims against
 
all insurers,
 
before
 
adjustment for
 
any relevant
franchise or deductible, exceeds $1,000,000 or the equivalent in any other currency.
 
"
Majority Lenders
" means:
 
(a)
 
before an Advance has
 
been made, Lenders
 
whose Commitments total
 
66.67 per
 
cent.
of the Total
 
Commitments; and
 
(b)
 
after an
 
Advance has been
 
made, Lenders
 
whose Contributions total
 
66.67 per cent.
of the Loan.
"
Management Agreement
" means,
 
in relation
 
to each
 
Ship, an
 
agreement made
 
or to be
 
made
between the Borrower
 
who is the
 
owner of such
 
Ship and the
 
Approved Manager
 
in respect
of
 
the
 
commercial
 
and
 
technical
 
management
 
of
 
such Ship
 
in
 
the
 
Agreed
 
Form
 
and,
 
in
 
the
plural, means all of them.
"
Manager's Undertaking
" means, in relation to each Ship, a letter of undertaking executed or
to be executed by the Approved Manager
 
in favour of the Security Trustee in the
 
Agreed Form
agreeing
 
certain matters
 
in relation
 
to
 
the management
 
of
 
that Ship
 
and subordinating
 
the
rights of the
 
Approved Manager against
 
that Ship and
 
the Borrower which
 
is the
 
owner thereof
to the rights of the
 
Security Trustee under the Finance Documents
 
and, in the
 
plural, means all
of them.
"
Manra
" means Manra Shipping Company
 
Inc., a corporation incorporated
 
in the Republic of
the Xxxxxxxx
 
Islands whose
 
registered
 
address is
 
at Trust
 
Company Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Margin
" means 2.25 per cent. per annum.
"
Market Disruption Rate
" means the Reference Rate.
"
Market Value
" means, in
 
relation to each
 
Ship (and
 
each other
 
Fleet Vessel), the
 
market value
thereof determined in accordance with Clause
 
(
Valuation of Ships
).
"
Master
 
Agreement
"
 
means
 
the
 
master
 
agreement
 
(on
 
the
 
2002
 
ISDA
 
Master
 
Agreement
form) in
 
the Agreed
 
Form made
 
or to
 
be made
 
between (i)
 
the Borrowers
 
and (ii)
 
the Swap
Bank
 
and
 
includes
 
all
 
Designated
 
Transactions
 
from
 
time
 
to
 
time
 
entered
 
into,
 
and
 
all
Confirmations
 
of
 
such
 
Designated
 
Transactions
 
from
 
time
 
to
 
time
 
exchanged,
 
under
 
such
master agreement.
"
Master
 
Agreement
 
Assignment
"
 
means
 
the
 
assignment
 
of
 
the
 
Master
 
Agreement
 
in
 
the
Agreed Form.
"
MOA A
" means the
 
memorandum of
 
agreement dated
 
17 August
 
2022 and made
 
between
(i) Manra as
 
buyer and (ii) Seller
 
A as seller,
 
as the same may
 
from time to
 
time be amended
pursuant to the terms of this Agreement.
"
MOA B
" means the
 
memorandum of agreement dated 17
 
August 2022 and
 
made between (i)
Jabwot
 
as buyer
 
and (ii)
 
Seller B
 
as seller,
 
as the
 
same may
 
from
 
time to
 
time be
 
amended
pursuant to the terms of this Agreement.
"
MOA C
" means the
 
memorandum of agreement dated 17 August
 
2022 and made between
 
(i)
Arorae
 
as buyer
 
and (ii)
 
Seller C
 
as seller,
 
as the
 
same may
 
from
 
time to
 
time be
 
amended
pursuant to the terms of this Agreement.
"
MOA D
" means the
 
memorandum of
 
agreement dated
 
17 August 2022
 
and made between
(i) Xxxxxx as buyer and (ii) Seller D as seller,
 
as the same may from time to time be amended
pursuant to the terms of this Agreement.
"
MOA E
" means the memorandum
 
of agreement dated 17 August 2022
 
and made between (i)
Beru
 
as
 
buyer
 
and
 
(ii)
 
Seller
 
E
 
as
 
seller,
 
as
 
the
 
same
 
may
 
from
 
time
 
to
 
time
 
be
 
amended
pursuant to the terms of this Agreement.
"
MOA F
" means the memorandum
 
of agreement dated 17 August 2022
 
and made between (i)
Bonriki as
 
buyer and
 
(ii) Seller
 
F as
 
seller,
 
as the
 
same may
 
from
 
time to
 
time be
 
amended
pursuant to the terms of this Agreement.
"
MOA G
" means the
 
memorandum of agreement
 
dated 17
 
August 2022 and
 
made between
(i) Ejite
 
as buyer
 
and (ii)
 
Seller G
 
as seller,
 
as the
 
same may
 
from time
 
to time
 
be amended
pursuant to the terms of this Agreement.
"
MOA H
" means the
 
memorandum of
 
agreement dated
 
17 August 2022
 
and made between
(i) Taongi
 
as buyer and (ii) Seller
 
H as seller,
 
as the same may
 
from time to time
 
be amended
pursuant to the terms of this Agreement.
"
MOA I
" means the memorandum of agreement dated 17 August 2022 and
 
made between (i)
Namorik as
 
buyer and
 
(ii) Seller
 
I as
 
seller,
 
as the
 
same may
 
from time
 
to time
 
be amended
pursuant to the terms of this Agreement.
"
Month
"
 
means
 
a
 
period
 
starting
 
on
 
one
 
day
 
in
 
a
 
calendar
 
month
 
and
 
ending
 
on
 
the
numerically corresponding day in the next calendar month, except that:
(a)
 
(subject to paragraph
 
below) if the numerically corresponding day
 
is not a Business
Day,
 
that period shall
 
end on the
 
next Business Day
 
in that calendar
 
month in which
that period
 
is to
 
end if
 
there is
 
one, or
 
if there
 
is not,
 
on the
 
immediately preceding
Business Day;
(b)
 
if there
 
is no
 
numerically corresponding
 
day in
 
the calendar
 
month in
 
which that
 
period
is to end, that period shall end on the last Business Day in that calendar month; and
(c)
 
if an Interest Period begins on the last Business
 
Day of a calendar month, that Interest
Period shall end on the last Business Day in the calendar month in which that Interest
Period is to end.
The above rules will only apply to the last Month of any period.
"
Mortgage
" means, in relation to a Ship, the first preferred Xxxxxxxx Islands ship mortgage on
that Ship in the Agreed Form and, in the plural, means all of them.
"
Namorik
" means Namorik
 
Shipping Company Inc., a
 
corporation incorporated in the Republic
of the Xxxxxxxx Islands whose
 
registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Notifying Lender
" has the meaning given in Clause
 
(
Illegality
) or Clause
 
(
Increased costs
)
as the context requires.
"Palios Family
" means, together, each
 
of the following:
(a)
 
Xx.
 
Xxxxxx Xxxxxx;
 
(b)
 
all the lineal descendants in direct line of Xx. Xxxxxx Xxxxxx;
(c)
 
a husband or wife or widower or widow of any of the above persons;
(d)
 
the estates, trusts
 
or legal representatives
 
of which any of the
 
above persons are the
beneficiaries; and
(e)
 
each company legally or beneficially owned or (as the case may be) controlled by one
or more of the persons or entities which would fall within paragraphs (a) to (d) of this
definition,
and each one of the above shall be referred to as "
a member of the Palios Family
";
"
Participating
Member
State
" means any
 
member state
 
of the European
 
Union that has
 
the
euro
 
as its
 
lawful currency
 
in accordance
 
with legislation
 
of the
 
European Union
 
relating
 
to
Economic and Monetary Union.
"
Party
"
means a party to this Agreement.
"
Payment Currency
" has the meaning given in Clause
 
(
Currency indemnity
).
"
Permitted Security Interests
" means:
(a)
 
Security Interests created by the Finance Documents;
(b)
 
liens for unpaid
 
master's and
 
crew's wages in
 
accordance with
 
usual maritime
 
practice;
(c)
 
liens for salvage;
(d)
 
liens arising
 
by operation
 
of law
 
for
 
not more
 
than two
 
months' prepaid
 
hire under
any charter in relation to a Ship not prohibited by this Agreement;
(e)
 
liens for
 
master's
 
disbursements incurred
 
in the
 
ordinary course
 
of
 
trading
 
and any
other
 
lien
 
arising
 
by
 
operation
 
of
 
law
 
or
 
otherwise
 
in
 
the
 
ordinary
 
course
 
of
 
the
operation, repair or
 
maintenance of a
 
Ship, provided such
 
liens do not
 
secure amounts
more
 
than
 
30
 
days
 
overdue
 
(unless
 
the overdue
 
amount
 
is
 
being
 
contested
 
by
 
the
relevant Borrower in good faith by appropriate
 
steps) and subject, in the case of liens
for
 
repair
 
or
 
maintenance,
 
to
 
Clause
 
(
Restriction
 
on
 
chartering,
 
appointment
 
of
managers etc.
);
(f)
 
any Security
 
Interest created
 
in favour
 
of a
 
plaintiff or defendant
 
in any
 
proceedings
or
 
arbitration
 
as
 
security
 
for
 
costs
 
and
 
expenses
 
where
 
the
 
Borrower
 
is
 
actively
prosecuting or defending such proceedings or arbitration in good faith; and
(g)
 
Security Interests arising by
 
operation of law in
 
respect of taxes which
 
are not overdue
for payment or in respect
 
of taxes being contested
 
in good faith by appropriate steps
and in respect of which appropriate reserves have been made.
"
Pertinent Document
" means:
(a)
 
any Finance Document;
(b)
 
any
 
policy
 
or
 
contract
 
of
 
insurance
 
contemplated
 
by
 
or
 
referred
 
to
 
in
 
Clause
(
Insurance
) or any other provision of this Agreement or another Finance Document;
(c)
 
any other document contemplated by or referred to in any Finance Document; and
(d)
 
any
 
document
 
which
 
has
 
been
 
or
 
is
 
at
 
any
 
time
 
sent
 
by
 
or
 
to
 
a
 
Servicing
 
Bank
 
in
contemplation of or in connection with any Finance Document or any policy, contract
or document falling within paragraphs
 
or
"
Pertinent Jurisdiction
", in relation to a company, means:
(a)
 
England and Wales;
(b)
 
the country under the laws of which the company is incorporated or formed;
(c)
 
a country
 
in which
 
the company
 
has the
 
centre of
 
its main
 
interests or
 
in which
 
the
company's central management and control is or has recently been exercised;
(d)
 
a country in
 
which the overall
 
net income of
 
the company is
 
subject to corporation
 
tax,
income tax or any similar tax;
(e)
 
a country in which assets of the company (other than
 
securities issued by, or loans to,
related
 
companies)
 
having
 
a
 
substantial
 
value
 
are
 
situated,
 
in
 
which
 
the
 
company
maintains
 
a
 
branch
 
or
 
permanent place
 
of
 
business,
 
or
 
in
 
which
 
a
 
Security Interest
created by the company must or should be registered in order to ensure its validity or
priority; and
(f)
 
a country the
 
courts of which have
 
jurisdiction to make
 
a winding up, administration
or similar order in relation to
 
the company,
 
whether as main or territorial or ancillary
proceedings, or which would have such jurisdiction if their assistance were requested
by the courts of a country referred to in paragraphs
 
or
"
Pertinent Matter
" means:
(a)
 
any
 
transaction
 
or
 
matter
 
contemplated
 
by,
 
arising
 
out
 
of,
 
or
 
in
 
connection
 
with
 
a
Pertinent Document; or
(b)
 
any statement
 
relating to
 
a Pertinent
 
Document or to
 
a transaction
 
or matter
 
falling
within paragraph
and covers any
 
such transaction, matter or statement,
 
whether entered into,
 
arising or made
at any time before the signing of this Agreement or on or at any time after that signing.
"
Poseidon Principles
" means the financial
 
industry framework for assessing and
 
disclosing the
climate
 
alignment
 
of
 
ship
 
finance
 
portfolios
 
published
 
in
 
June
 
2019
 
as
 
the
 
same
 
may
 
be
amended or replaced from time to time.
"
Potential
 
Event
 
of Default
" means
 
an event
 
or circumstance
 
which, with
 
the giving
 
of
 
any
notice, the lapse of time, a determination
 
of the Lenders and/or
 
the satisfaction of any
 
other
condition, would constitute an Event of Default.
"
Purchase
Price
" means, in relation
 
to each Ship, the
 
price for
 
that Ship as
 
stated in clause
 
1
of the relevant MOA.
"
Quotation
 
Day
"
 
means,
 
in
 
relation
 
to
 
any
 
period
 
for
 
which
 
an
 
interest
 
rate
 
is
 
to
 
be
determined, two US
 
Government Securities Business Days
 
before the
 
first day
 
of that period
unless
 
market
 
practice
 
differs
 
in
 
the
 
relevant
 
syndicated
 
loan
 
market
 
in
 
which
 
case
 
the
Quotation Day will be
 
determined by the Agent in accordance
 
with that market practice
 
(and
if quotations
 
would normally
 
be given
 
on more
 
than one
 
day,
 
the Quotation
 
Day will
 
be the
last of those days).
"
Reference Rate
" means, in relation to the Loan or any part of the Loan:
(a)
 
the applicable Term
 
SOFR as of the Quotation Day
 
and for a period equal in length
 
to
the Interest Period of the Loan or that part of the Loan;
 
or
(b)
 
as otherwise determined pursuant to Clause
 
(
Unavailability of Term SOFR
),
and if, in either
 
case, that rate is
 
less than zero, the
 
Reference Rate shall be deemed
 
to be zero.
"
Relevant
 
Market
"
 
means
 
the
 
market
 
for
 
overnight
 
cash
 
borrowing
 
collateralised
 
by
 
US
Government Securities.
"
Relevant
 
Nominating
 
Body
"
 
means
 
any
 
applicable
 
central
 
bank,
 
regulator
 
or
 
other
supervisory authority or
 
a group
 
of them,
 
or any
 
working group
 
or committee
 
sponsored or
chaired by, or constituted at the request of,
 
any of them or the Financial Stability Board.
"
Relevant Person
" has the meaning given in Clause
 
(
Relevant Persons
).
"
Repayment
Date
" means a date on which a repayment
 
is required to be made under Clause
 
(
Repayment and Prepayment
).
"
Repayment Instalment
" means any repayment instalment referred to in Clause
 
(
Amount of
repayment instalments
).
"
Requisition Compensation
" includes all compensation or
 
other moneys payable by reason of
any act or event such as is referred to in paragraph
 
of the definition of "
Total Loss
".
"
Resolution Authority
" means any body which has authority to
 
exercise any Write
 
-down and
Conversion Powers.
"
Restricted Party
" means a person:
(a)
 
that is listed on any Sanctions List (whether designated
 
by name or by reason of being
included in a class of person);
(b)
 
located, organised
 
or resident in
 
a country or
 
territory that is
 
the target
 
of Sanctions
that broadly prohibit
 
dealings with that country or territory
 
(currently,
 
Crimea, Cuba,
Iran, North Korea, Syria, Donetsk and Luhansk); or
(c)
 
that is directly or
 
indirectly owned or controlled
 
by a person referred
 
to in (a) and/or
(b) above; or
(d)
 
with
 
which
 
any
 
Lender
 
is
 
prohibited
 
from
 
dealing
 
or
 
otherwise
 
engaging
 
in
 
a
transaction with by any Sanctions.
"
Sanctions Authority
" means the Norwegian
 
State, the United
 
Nations, the European
 
Union,
the member states of the European Union, the United Kingdom, the United States of America
and any authority,
 
official institution or agency acting on
 
behalf of any of them in
 
connection
with Sanctions.
"
Sanctions
" means the economic or financial Sanctions and/or regulations, trade
 
embargoes,
prohibitions,
 
restrictive
 
measures,
 
decisions,
 
Executive
 
Orders
 
or
 
notices
 
from
 
regulators
implemented,
 
adapted,
 
imposed,
 
administered,
 
enacted
 
and/or
 
enforced
 
by
 
any
 
Sanctions
Authority.
"
Sanctions List
" means a list of
 
persons or entities published in connection
 
with Sanctions by
or on behalf of any Sanctions Authority.
"
Secured Liabilities
" means
 
all liabilities
 
which the
 
Borrowers, the
 
Corporate Guarantor,
 
the
Security Parties
 
or
 
any
 
of
 
them have,
 
at
 
the date
 
of
 
this Agreement
 
or
 
at
 
any
 
later
 
time or
times,
 
under or
 
in
 
connection with
 
any
 
Finance Document
 
or
 
any
 
judgment
 
relating
 
to
 
any
Finance
 
Document;
 
and
 
for
 
this
 
purpose,
 
there
 
shall
 
be
 
disregarded
 
any
 
total
 
or
 
partial
discharge of these liabilities, or variation of their terms, which is effected by,
 
or in connection
with, any bankruptcy, liquidation, arrangement
 
or other procedure under the insolvency laws
of any country.
"
Security Interest
" means:
 
(a)
 
a mortgage,
 
charge (whether
 
fixed or
 
floating) or
 
pledge, any
 
maritime or other
 
lien
or any other security interest of any kind;
 
(b)
 
the security rights of a plaintiff under an action
in rem
; and
 
(c)
 
any arrangement
 
entered into by
 
a person (A) the
 
effect of which
 
is to place another
person (B) in a position which is similar, in economic terms, to the position in which B
would have been had he held
 
a security interest over an asset of A;
 
but this paragraph
 
does
 
not
 
apply
 
to
 
a
 
right
 
of
 
set
 
off
 
or
 
combination
 
of
 
accounts
 
conferred
 
by
 
the
standard terms of business of a bank or financial institution.
"
Security
 
Party
"
 
means
 
the
 
Corporate
 
Guarantor,
 
the
 
Approved
 
Manager
 
and
 
any
 
other
person (except a Creditor
 
Party) who, as a
 
surety or mortgagor, as a
 
party to any
 
subordination
or priorities
 
arrangement, or
 
in any
 
similar capacity,
 
executes
 
a document
 
falling within
 
the
last paragraph of the definition of "
Finance Documents
".
"
Security Period
" means
 
the period
 
commencing on
 
the date
 
of this
 
Agreement and
 
ending
on
 
the
 
date
 
on
 
which
 
the
 
Agent
 
notifies
 
the
 
Borrowers,
 
the
 
Security Parties
 
and
 
the
 
other
Creditor Parties that:
 
(a)
 
all amounts
 
which have
 
become due
 
for
 
payment by
 
the Borrowers
 
or any
 
Security
Party under the Finance Documents have been paid;
(b)
 
no
 
amount
 
is
 
owing
 
or
 
has
 
accrued
 
(without
 
yet
 
having
 
become
 
due
 
for
 
payment)
under any Finance Document;
(c)
 
neither a Borrower nor any Security Party
 
has any future or contingent
 
liability under
Clause
 
(
Fees and expenses
),
 
(
Indemnities
) or
 
(
No set-off or Tax Deduction
) below
or any other provision of this Agreement or another Finance Document; and
(d)
 
the Agent, the Security Trustee and the Majority Lenders do not
 
consider that there is
a significant risk that
 
any payment or transaction under
 
a Finance Document
 
would be
set aside, or would have to be
 
reversed or adjusted, in any
 
present or possible future
bankruptcy of
 
the Borrowers
 
or a
 
Security Party
 
or in
 
any present
 
or possible
 
future
proceeding
 
relating
 
to
 
a
 
Finance
 
Document
 
or
 
any
 
asset
 
covered
 
(or
 
previously
covered) by a Security Interest created by a Finance Document.
"
Security Trustee
" means Nordea
 
Bank Abp, filial
 
i Norge,
 
acting in such
 
capacity through its
office at Xxxxxxxxxx xxxx 0, Xxxxxxxx 0000,
 
Sentrum, 0107 Oslo,
 
920058817 MVA, Norway, or
any successor of it appointed under clause 5 of the Agency and Trust Deed.
"
Selection Notice
" means
 
a notice
 
substantially in
 
the form
 
set out
 
in Schedule
 
6 (
Selection
Notice
) given in accordance with Clause 6 (
Interest Periods
).
"
Seller A
" means STH
 
Athens LLC
 
of Trust
 
Company Complex,
 
Ajeltake Road,
 
Ajeltake Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller B
" means
 
STH
 
Chiba LLC
 
of
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
 
Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller
 
C
"
 
means
 
STH
 
Kure
 
LLC
 
of
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
 
Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller D
" means STH
 
London LLC of Trust
 
Company Complex, Ajeltake
 
Road, Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller E
" means STH Montreal LLC of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller F
" means STH New
 
York LLC of Trust Company Complex, Ajeltake Road, Ajeltake Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller
 
G
"
 
means
 
STH
 
Oslo
 
LLC
 
of
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
 
Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller H
" means STH
 
Sydney LLC
 
of Trust
 
Company Complex, Ajeltake
 
Road, Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Seller
 
I
"
 
means
 
STH
 
Tokyo
 
LLC
 
of
 
Trust
 
Company
 
Complex,
 
Ajeltake
 
Road,
 
Ajeltake
 
Island,
Majuro, Xxxxxxxx Islands MH96960.
"
Servicing Bank
" means the Agent or the Security Trustee.
"
Shares
 
Pledge
"
 
means,
 
in
 
relation
 
to
 
each
 
Borrower,
 
a
 
deed
 
executed
 
by
 
the
 
Corporate
Guarantor,
 
creating security over the
 
share capital of
 
that Borrower
 
in the Agreed Form
 
and,
in the plural, means all of them.
"
Ship A
" means
 
the 2015-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,508 deadweight
 
tonnage
"STH
 
ATHENS"
 
with
 
IMO
 
No.
 
9747390
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
A
 
and
 
to
 
be
purchased
 
by
 
Manra
 
pursuant
 
to
 
the terms
 
and conditions
 
of MOA
 
A and
 
registered
 
in the
name of Manra under the Approved Flag with the name "DSI PEGASUS".
"
Ship B
" means
 
the 2017-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,456 deadweight
 
tonnage
"STH
 
CHIBA"
 
with
 
IMO
 
No.
 
9738337
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
B
 
and
 
to
 
be
purchased by
 
Jabwot pursuant
 
to
 
the terms
 
and conditions
 
of MOA
 
B and
 
registered
 
in the
name of Jabwot under the Approved Flag with the name "DSI PHOENIX".
"
Ship C
" means
 
the 2016-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,309 deadweight
 
tonnage
"STH KURE" with
 
IMO
 
No. 9749269
 
registered in the
 
ownership of Seller
 
C and to
 
be purchased
by Xxxxxx xxxxxxxx
 
to the terms
 
and conditions
 
of MOA
 
C and
 
registered in the
 
name of
 
Arorae
under the Approved Flag with the name "DSI AQUARIUS".
"
Ship D
" means
 
the 2015-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,309 deadweight
 
tonnage
"STH
 
LONDON"
 
with
 
IMO
 
No.
 
9747405
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
D
 
and
 
to
 
be
purchased by
 
Tamana
 
pursuant to
 
the terms and
 
conditions of MOA
 
D and
 
registered in
 
the
name of Tamana under the Approved Flag with the name "DSI POLLUX".
"
Ship
 
E
" means
 
the 2018-built
 
Ultaramax
 
bulk carrier
 
vessel
 
of 60,362
 
deadweight tonnage
"STH
 
MONTREAL" with
 
IMO
 
No. 9800635
 
registered
 
in
 
the ownership
 
of
 
Seller E
 
and
 
to
 
be
purchased by Xxxx pursuant to the
 
terms and conditions of
 
MOA E and registered in the
 
name
of Beru under the Approved Flag with the name "DSI PYXIS".
"
Ship
 
F
" means
 
the 2015-built
 
Ultaramax
 
bulk carrier
 
vessel
 
of
 
60,309 deadweight
 
tonnage
"STH
 
NEW
 
YORK"
 
with
 
IMO
 
No.
 
9729362
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
F
 
and
 
to
 
be
purchased
 
by
 
Bonriki pursuant
 
to
 
the terms
 
and conditions
 
of
 
MOA
 
F and
 
registered
 
in the
name of Bonriki under the Approved Flag with the name "DSI AQUILA".
"
Ship G
" means
 
the 2018-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,404 deadweight
 
tonnage
"STH OSLO" with
 
IMO No.
 
9738349 registered in
 
the ownership of
 
Seller G
 
and to
 
be purchased
by Ejite
 
pursuant to
 
the terms
 
and conditions
 
of MOA
 
G and
 
registered
 
in the
 
name of
 
Ejite
under the Approved Flag with the name "DSI POLARIS".
"
Ship H
" means
 
the 2016-built
 
Ultaramax
 
bulk carrier
 
vessel of
 
60,309 deadweight
 
tonnage
"STH
 
SYDNEY"
 
with
 
IMO
 
No.
 
9749245
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
H
 
and
 
to
 
be
purchased
 
by Xxxxxx
 
pursuant
 
to
 
the terms
 
and conditions
 
of MOA
 
H and
 
registered
 
in the
name of Xxxxxx under the Approved Flag with the name "DSI ALTAIR
 
".
"
Ship
 
I
"
 
means
 
the 2016-built
 
Ultaramax
 
bulk
 
carrier
 
vessel
 
of
 
60,309
 
deadweight
 
tonnage
"STH
 
TOKYO"
 
with
 
IMO
 
No.
 
9749257
 
registered
 
in
 
the
 
ownership
 
of
 
Seller
 
I
 
and
 
to
 
be
purchased by
 
Namorik pursuant
 
to the
 
terms and
 
conditions of
 
MOA I
 
and registered
 
in the
name of Namorik under the Approved Flag with the name "DSI ANDROMEDA".
"
Ships
" means, together, Ship A, Ship B, Ship C, Ship D, Ship E, Ship F, Ship G, Ship H and Ship I
and, in the singular, means any of them.
"
SOFR
"
 
means
 
the
 
secured
 
overnight
 
financing
 
rate
 
(SOFR)
 
administered
 
by
 
the
 
Federal
Reserve Bank
 
of New
 
York
 
(or any
 
other person
 
which takes
 
over the
 
administration of
 
that
rate) published (before any correction, recalculation or republication by the administrator) by
the Federal Reserve
 
Bank of New York
 
(or any other person
 
which takes over
 
the publication
of that rate).
"
Statement of Compliance
" means a Statement of
 
Compliance related to fuel
 
oil consumption
pursuant to regulations 6.6 and 6.7 of Xxxxx XX.
"
Swap Bank
" means Nordea Bank Abp.
"
Swap Exposure
" means,
 
as at
 
any relevant
 
date, the
 
amount certified
 
by the
 
Swap Bank
 
to
the Agent to be
 
the aggregate net amount
 
in Dollars which
 
would be payable by
 
the Borrowers
to the
 
Swap Bank
 
under (and calculated
 
in accordance with)
 
section 6(e) (
Payments on
 
Early
Termination
)
 
of
 
the
 
Master
 
Agreement
 
if
 
an
 
Early
 
Termination
 
Date
 
had
 
occurred
 
on
 
the
relevant date in relation to all outstanding Designated Transactions
 
.
"
Tamana
" means Tamana
 
Shipping Company Inc., a corporation
 
incorporated in the Republic
of the Xxxxxxxx Islands whose
 
registered address is at Trust Company Complex, Ajeltake Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Taongi
" means Taongi
 
Shipping Company Inc., a corporation incorporated
 
in the Republic of
the Xxxxxxxx
 
Islands whose
 
registered
 
address is
 
at Trust
 
Company Complex,
 
Ajeltake
 
Road,
Ajeltake Island, Majuro MH96960, Xxxxxxxx Islands.
"
Termination
 
Date
" means the date falling
 
on the fifth anniversary of
 
the Drawdown Date
 
of
the first Tranche.
"
Term
 
SOFR
" means
 
the term
 
SOFR reference
 
rate
 
administered by
 
CME Group
 
Benchmark
Administration Limited (or any other person which takes over
 
the administration of that rate)
for the relevant period published (before any correction, recalculation or republication by the
administrator) by
 
CME Group Benchmark Administration
 
Limited (or any
 
other person which
takes over the publication of that rate).
"
Total Loss
" means, in relation to a Ship
(a)
 
actual, constructive, compromised, agreed or arranged total loss of the Ship;
(b)
 
any expropriation, confiscation, requisition or acquisition of the Ship, whether for full
consideration, a
 
consideration less
 
than its
 
proper value,
 
a nominal
 
consideration or
without any
 
consideration, which
 
is effected
 
by any
 
government or
 
official authority
or by
 
any person
 
or persons
 
claiming to
 
be or
 
to represent
 
a government
 
or official
authority
 
(excluding
 
a
 
requisition
 
for
 
hire
 
for
 
a
 
fixed
 
period
 
not
 
exceeding
 
1
 
year
without any right to an extension) unless it is within one month redelivered to the full
control of the Borrower owning that Ship;
(c)
 
any condemnation of the Ship by
 
any tribunal or by any
 
person or person claiming to
be a tribunal; and
(d)
 
any arrest,
 
capture, seizure or
 
detention of the
 
Ship (including any hijacking or
 
theft)
unless it is
 
within 30 days
 
redelivered to
 
the full control
 
of the Borrower
 
owning the
Ship.
"
Total Loss Date
" means, in relation to a Ship:
(a)
 
in the
 
case of
 
an actual
 
loss of
 
the Ship,
 
the date
 
on which
 
it occurred
 
or,
 
if that
 
is
unknown, the date when the Ship was last heard of;
(b)
 
in the case of a constructive,
 
compromised, agreed or arranged total
 
loss of the Ship,
the earliest of:
(i)
 
the date on which a notice of abandonment is given to the insurers; and
(ii)
 
the date of
 
any compromise, arrangement or
 
agreement made by
 
or on behalf
of the Borrower owning the Ship
 
with the Ship's insurers in which
 
the insurers
agree to treat the Ship as a total loss; and
(c)
 
in the
 
case of
 
any other
 
type of
 
total loss,
 
on the
 
date (or
 
the most likely
 
date) on
 
which
it appears to the Agent that the event constituting the total loss occurred.
"
Tranche
" means each of
 
Tranche
 
A, Tranche
 
B, Tranche
 
C, Tranche
 
D, Tranche
 
E, Tranche
 
F,
Tranche G, Tranche
 
H and Tranche I.
 
"
Tranche
 
A
" means that
 
part of the
 
Loan made or
 
to be
 
made available
 
to Manra
 
to finance
up to
 
the lesser
 
of (a)
 
$20,900,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship A and (b) 67.5 per cent. of the Initial Market Value of Ship A.
"
Tranche
 
B
" means that
 
part of the
 
Loan made or
 
to be made
 
available to
 
Jawbot to finance
up to
 
the lesser
 
of (a)
 
$22,800,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship B and (b) 67.5 per cent. of the Initial Market Value of Ship B.
"
Tranche
 
C
" means that
 
part of the
 
Loan made or
 
to be made
 
available to
 
Arorae to
 
finance
up to
 
the lesser
 
of (a)
 
$22,000,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship C and (b) 67.5 per cent. of the Initial Market Value of Ship C.
"
Tranche D
" means that part of the Loan made or to
 
be made available to Tamana
 
to finance
up to
 
the lesser
 
of (a)
 
$20,900,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship D and (b) 67.5 per cent. of the Initial Market Value of Ship D.
"
Tranche
 
E
" means that part of
 
the Loan made or to
 
be made available to
 
Beru to finance up
to the lesser of (a) $24,250,000 representing approximately 60 per cent. of
 
the Purchase Price
of Ship E and (b) 67.5 per cent. of the Initial Market Value of Ship E.
"
Tranche
 
F
" means that
 
part of the
 
Loan made or
 
to be
 
made available
 
to Bonriki to
 
finance
up to
 
the lesser
 
of (a)
 
$20,900,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship F and (b) 67.5 per cent. of the Initial Market Value of Ship F.
"
Tranche G
" means that part of
 
the Loan made or to
 
be made available to
 
Ejite to finance up
to the lesser of (a) $24,250,000 representing approximately 60 per cent. of
 
the Purchase Price
of Ship G and (b) 67.5 per cent. of the Initial Market Value of Ship G.
"
Tranche
 
H
" means that
 
part of the
 
Loan made or
 
to be
 
made available
 
to Taongi
 
to finance
up to
 
the lesser
 
of (a)
 
$22,000,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship H and (b) 67.5 per cent. of the Initial Market Value of Ship H.
"
Tranche I
" means that part of the
 
Loan made or to be
 
made available to Namorik to
 
finance
up to
 
the lesser
 
of (a)
 
$22,000,000 representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
Price of Ship I and (b) 67.5 per cent. of the Initial Market Value of Ship I.
"
Transaction
" has the meaning given in the Master Agreement.
"
Transfer Certificate
" has the meaning given in Clause
 
(
Transfer by a Lender
).
 
"
Trust Property
" has the meaning given in clause 3.1 of the Agency and Trust Deed.
 
"
UK Bail-In Legislation
" means Part 1 of the United
 
Kingdom Banking Act 2009 and any other
law or
 
regulation applicable
 
in the
 
United Kingdom
 
relating to
 
the resolution
 
of unsound
 
or
failing banks,
 
investment firms
 
or other
 
financial institutes
 
or their
 
affiliates (otherwise
 
than
through liquidation, administration or other insolvency proceedings).
"
Unpaid
 
Sum
"
 
means
 
any
 
sum
 
due
 
and
 
payable
 
but
 
unpaid
 
by
 
a
 
Security
 
Party
 
under
 
the
Finance Documents.
"
US
" means the United States of America.
"
US Government Securities Business Day
" means any day other than:
(a)
 
a Saturday or a Sunday; and
(b)
 
a
 
day
 
on
 
which
 
the
 
Securities
 
Industry
 
and
 
Financial
 
Markets
 
Association
 
(or
 
any
successor
 
organisation)
 
recommends
 
that
 
the
 
fixed
 
income
 
departments
 
of
 
its
members
 
be
 
closed
 
for
 
the
 
entire
 
day
 
for
 
purposes
 
of
 
trading
 
in
 
US
 
Government
securities.
"
US Tax Obligor
" means:
(a)
 
a person which is resident for tax purposes in the US; or
(b)
 
a
 
person
 
some
 
or
 
all
 
of
 
whose
 
payments
 
under
 
the
 
Finance
 
Documents
 
are
 
from
sources within the US for US federal income tax purposes.
"
Write-down and Conversion Powers
" means:
(a)
 
in relation
 
to
 
any
 
Bail-In Legislation
 
described in
 
the EU
 
Bail-In Legislation
 
Schedule
from time
 
to time, the powers
 
described as such in relation to
 
that Bail-In Legislation
in the EU Bail-In Legislation Schedule;
(b)
 
in relation
 
to the
 
UK Bail-In
 
Legislation, any
 
powers under
 
that UK
 
Bail-In Legislation
to cancel, transfer or dilute shares
 
issued by a
 
person that is a
 
bank or investment firm
or other
 
financial institution or
 
affiliate of
 
a bank,
 
investment
 
firm or other
 
financial
institution, to cancel, reduce, modify or change the form of a liability
 
of such a person
or any contract or instrument under which that liability arises,
 
to convert all or part of
that liability into
 
shares, securities or obligations
 
of that person
 
or any other
 
person,
to provide that any such contract or instrument is to have effect as if a right had been
exercised under it or to suspend any obligation in respect of that liability or any
 
of the
powers under that UK Bail-In
 
Legislation that are related to or
 
ancillary to any of
 
those
xxxxxx; and
(c)
 
in relation to any other applicable Bail-In Legislation:
(i)
 
any powers
 
under that
 
Bail-In Legislation
 
to cancel,
 
transfer
 
or dilute
 
shares
issued
 
by
 
a
 
person
 
that
 
is
 
a
 
bank
 
or
 
investment
 
firm
 
or
 
other
 
financial
institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of
 
a liability of such a person or
any contract
 
or instrument
 
under which that
 
liability arises, to
 
convert all
 
or
part of that liability into shares, securities or obligations of that person or any
other person, to provide
 
that any such contract or
 
instrument is to have effect
as if a
 
right had been
 
exercised under it or
 
to suspend any
 
obligation in respect
of
 
that
 
liability
 
or
 
any
 
of
 
the
 
powers
 
under
 
that
 
Bail-In
 
Legislation
 
that
 
are
related to or ancillary to any of those powers; and
(ii)
 
any similar or analogous powers under that Bail-In Legislation.
1.2
 
Construction of certain terms
In this Agreement:
"
administration
 
notice
"
 
means
 
a
 
notice
 
appointing
 
an
 
administrator,
 
a
 
notice
 
of
 
intended
appointment and
 
any other
 
notice which
 
is required
 
by law
 
(generally or
 
in the
 
case concerned)
to be filed with the court
 
or given to a person prior
 
to, or in connection with, the appointment
of an administrator.
 
"
approved
" means, for the
 
purposes of Clause
 
(
Insurance
), approved in writing
 
by the Agent.
"
asset
" includes every
 
kind of property,
 
asset, interest
 
or right, including
 
any present,
 
future
or contingent right to any revenues or other payment.
a Xxxxxx's "
cost of funds
" in relation to its
 
participation in the Loan or any
 
part of the Loan is
a reference to the average cost (determined either on
 
an actual or a
 
notional basis) which that
Lender would
 
incur if
 
it were
 
to fund,
 
from whatever
 
source(s) it
 
may
 
reasonably select,
 
an
amount equal
 
to the
 
amount of
 
that participation
 
in the
 
Loan or
 
that part
 
of the
 
Loan for
 
a
period equal in length to the Interest Period of the Loan or that part of the Loan.
"
company
" includes any partnership, joint venture and unincorporated association.
"
consent
" includes an authorisation, consent,
 
approval, resolution, licence, exemption,
 
filing,
registration, notarisation and legalisation.
"
contingent liability
" means a
 
liability which
 
is not certain
 
to arise and/or the
 
amount of which
remains unascertained.
"
document
" includes a deed; also a letter or fax.
"
excess risks
" means,
 
in relation
 
to a
 
Ship, the
 
proportion of
 
claims for
 
general average, salvage
and salvage
 
charges not
 
recoverable
 
under the
 
hull and
 
machinery policies
 
in respect
 
of the
Ship in consequence of
 
its insured value being less
 
than the value at which
 
the Ship is assessed
for the purpose of such claims.
"
expense
" means
 
any
 
kind of
 
cost,
 
charge or
 
expense
 
(including all
 
legal
 
costs,
 
charges
 
and
expenses) and any applicable value added or other tax.
"
law
"
 
includes
 
any
 
order
 
or
 
decree,
 
any
 
form
 
of
 
delegated
 
legislation,
 
any
 
treaty
 
or
international
 
convention
 
and
 
any
 
regulation
 
or
 
resolution
 
of
 
the
 
Council
 
of
 
the
 
European
Union, the European Commission, the United Nations or its Security Council.
"
legal
 
or
 
administrative
 
action
"
 
means
 
any
 
legal
 
proceeding
 
or
 
arbitration
 
and
 
any
administrative or regulatory action or investigation.
"
liability
"
 
includes
 
every
 
kind
 
of
 
debt
 
or
 
liability
 
(present
 
or
 
future,
 
certain
 
or
 
contingent),
whether incurred as principal or surety or otherwise.
"
obligatory
 
insurances
"
 
means,
 
in
 
relation
 
to
 
a
 
Ship,
 
all
 
insurances
 
effected,
 
or
 
which
 
the
Borrower
 
owning
 
the
 
Ship
 
is
 
obliged
 
to
 
effect,
 
under
 
Clause
 
(
Insurance
)
 
or
 
any
 
other
provision of this Agreement or another Finance Document.
"
parent company
" has the meaning given in Clause
 
(
Meaning of "subsidiary"
).
"
person
"
 
includes
 
any
 
company;
 
any
 
state,
 
political
 
sub-division
 
of
 
a
 
state
 
and
 
local
 
or
municipal authority; and any international organisation.
"
policy
", in relation
 
to any
 
insurance, includes
 
a slip, cover
 
note, certificate of
 
entry or other
document evidencing the contract of insurance or its terms.
"
protection and indemnity
 
risks
" means the
 
usual risks covered by
 
a protection and
 
indemnity
association
 
managed
 
in
 
London,
 
including pollution
 
risks
 
and
 
the
 
proportion
 
(if
 
any)
 
of
 
any
sums payable
 
to any
 
other person
 
or persons
 
in case
 
of collision
 
which are
 
not recoverable
under the hull and
 
machinery policies by
 
reason of the
 
incorporation in them of
 
clause 6 of
 
the
International Hull Clauses
 
(1/11/02 or 1/11/03), clause
 
8 of the
 
Institute Time Clauses (Hulls)
(1/11/95) or clause 8 of the Institute Time Clauses
 
(Hulls) (1/10/83) or the Institute Amended
Running Down Clause (1/10/71) or any equivalent provision.
"
regulation
" includes any regulation,
 
rule, official directive, request or
 
guideline (either having
the force of
 
law or compliance with which
 
is reasonable in the ordinary
 
course of business of
the
 
party
 
concerned)
 
whether
 
or
 
not
 
having
 
the
 
force
 
of
 
law
 
of
 
any
 
governmental,
intergovernmental
 
or supranational
 
body,
 
agency,
 
department or
 
regulatory,
 
self-regulatory
or other authority or organisation.
"
subsidiary
" has the meaning given in Clause
 
(
Meaning of "subsidiary"
).
 
"
successor
"
 
includes
 
any
 
person
 
who
 
is
 
entitled
 
(by
 
assignment,
 
novation,
 
merger
 
or
otherwise) to
 
any
 
person's rights
 
under this
 
Agreement or
 
any other
 
Finance Document
 
(or
any
 
interest
 
in those
 
rights) or
 
who,
 
as administrator,
 
liquidator or
 
otherwise, is
 
entitled to
exercise
 
those rights;
 
and in
 
particular references
 
to a
 
successor include
 
a person
 
to whom
those rights
 
(or any
 
interest
 
in those
 
rights) are
 
transferred
 
or pass
 
as a
 
result of
 
a merger,
division, reconstruction or other reorganisation of it or any other person.
 
"
tax
"
 
includes
 
any
 
present
 
or
 
future
 
tax,
 
duty,
 
impost,
 
levy
 
or
 
charge
 
of
 
any
 
kind
 
which
 
is
imposed by any
 
state, any
 
political sub-division of
 
a state
 
or any
 
local or municipal
 
authority
(including
 
any
 
such
 
imposed
 
in
 
connection
 
with
 
exchange
 
controls),
 
and
 
any
 
connected
penalty, interest or
 
fine.
"
war
 
risks
"
 
includes
 
the
 
risk
 
of
 
mines
 
and
 
all
 
risks
 
excluded
 
by
 
clauses
 
29,
 
30
 
or
 
31
 
of
 
the
International
 
Hull
 
Clauses
 
(1/11/02),
 
clauses
 
29
 
or
 
30
 
of
 
the
 
International
 
Hull
 
Clauses
(1/11/03), clauses 24, 25 or 26
 
of the Institute Time Clauses (Hulls) (1/11/95)
 
or clauses
 
23, 24
or 25 of the Institute Time Clauses (Hulls) (1/10/83) or any equivalent provision.
1.3
 
Meaning of "subsidiary"
A company (S) is a subsidiary of another company (P) if:
(a)
 
a majority
 
of the issued
 
shares in S
 
(or a
 
majority of the
 
issued shares in
 
S which
 
carry unlimited
rights to capital and
 
income distributions) are
 
directly owned by
 
P or are indirectly
 
attributable
to P; or
(b)
 
P
 
has
 
direct
 
or
 
indirect
 
control
 
over
 
a
 
majority
 
of
 
the
 
voting
 
rights
 
attaching
 
to
 
the
 
issued
shares of S; or
(c)
 
P has the direct or indirect power to appoint or remove a majority of the directors of S; or
(d)
 
P otherwise
 
has the
 
direct or
 
indirect power
 
to ensure
 
that the
 
affairs
 
of S
 
are conducted
 
in
accordance with the wishes of P,
and any company of which S is a subsidiary is a parent company of S.
1.4
 
General Interpretation
In this Agreement:
(a)
 
references to, or to a provision of, a Finance Document or any other document are references
to it as amended or supplemented, whether before the date of this Agreement or otherwise;
(b)
 
references to,
 
or to a provision of,
 
any law include any
 
amendment, extension, re-enactment
or replacement, whether made before the date of this Agreement or otherwise;
 
(c)
 
words denoting the singular number shall include the plural and vice versa; and
(d)
 
Clauses
 
to
 
apply unless the contrary intention appears.
1.5
 
Headings
In interpreting
 
a Finance
 
Document or
 
any provision
 
of a
 
Finance Document,
 
all clause,
 
sub-
clause
 
and
 
other
 
headings
 
in
 
that
 
and
 
any
 
other
 
Finance
 
Document
 
shall
 
be
 
entirely
disregarded.
2
 
FACILITY
 
2.1
 
Amount of facility
Subject
 
to
 
the
 
other
 
provisions
 
of
 
this
 
Agreement,
 
the
 
Lenders
 
shall
 
make
 
available
 
to
 
the
Borrowers,
 
in
 
one
 
advance,
 
a
 
term
 
loan
 
facility
 
of
 
up
 
to
 
the
 
lesser
 
of
 
(i)
 
$200,000,000
representing
 
approximately
 
60 per
 
cent. of
 
the Purchase
 
Price of
 
the Ships
 
and (ii)
 
67.5 per
cent. of the aggregate Initial Market Value of the Ships for the
 
purpose of financing part of
 
the
Ships' acquisition cost and for general corporate and working capital
 
purposes.
 
2.2
 
Xxxxxxx' participations in the Loan
Subject to the other provisions of this Agreement, each Lender shall participate in the Loan in
the
 
proportion
 
which,
 
as
 
at
 
the
 
Drawdown
 
Date,
 
its
 
Commitment
 
bears
 
to
 
the
 
Total
Commitments.
2.3
 
Purpose of the Loan
The Borrowers
 
undertake with each
 
Creditor Party to
 
use each Advance only
 
for the purpose
stated in the preamble to this Agreement.
3
 
POSITION OF THE LENDERS, THE SWAP BANK AND THE MAJORITY LENDERS
3.1
 
Interests of Lenders and Swap Bank several
The rights of
 
the Lenders and
 
the Swap Bank under
 
this Agreement and
 
the Master Agreement
are several; accordingly:
(a)
 
each Lender shall be
 
entitled to sue for any
 
amount which has become
 
due and payable by the
Borrowers to it under this Agreement; and
(b)
 
the Swap Bank shall be entitled to sue for
 
any amount which has become due and payable by
the Borrowers to it under the Master Agreement,
without
 
joining
 
the
 
Agent,
 
the
 
Security
 
Trustee,
 
any
 
other
 
Lender
 
and
 
the
 
Swap
 
Bank
 
as
additional parties in the proceedings.
3.2
 
Proceedings by individual Lender or Swap Bank
However,
 
without the
 
prior consent
 
of
 
the Majority
 
Lenders,
 
no Lender
 
nor the
 
Swap
 
Bank
may bring proceedings in respect of:
(a)
 
any other liability or obligation of any Borrower or a Security Party under or connected with a
Finance Document; or
(b)
 
any
 
misrepresentation
 
or
 
breach
 
of
 
warranty
 
by
 
any
 
Borrower
 
or
 
a
 
Security
 
Party
 
in
 
or
connected with a Finance Document.
3.3
 
Obligations several
The obligations of the
 
Lenders and the Swap
 
Bank under this
 
Agreement and of the
 
Swap Bank
under the
 
Master Agreement
 
are several; and
 
a failure
 
of a
 
Lender or
 
the Swap
 
Bank to
 
perform
its obligations under this Agreement or of the Swap Bank to perform its obligations under the
Master Agreement shall not result in:
(a)
 
the obligations
 
of the other
 
Lenders or
 
(as the case
 
may be)
 
the Swap
 
Bank being increased;
nor
(b)
 
any Borrower,
 
any Security Party or
 
any other Creditor Party
 
being discharged (in whole or in
part) from its obligations under any Finance Document,
and in no
 
circumstances shall a
 
Lender or the
 
Swap Bank have
 
any responsibility for
 
a failure
of another
 
Lender or
 
the Swap
 
Bank to
 
perform its
 
obligations under
 
this Agreement
 
or the
Master Agreement.
3.4
 
Parties bound by certain actions of Majority Lenders
Every Lender,
 
the Swap Bank, each Borrower and each Security Party shall be bound by:
(a)
 
any
 
determination made,
 
or action
 
taken,
 
by the
 
Majority Lenders
 
under any
 
provision of
 
a
Finance Document;
(b)
 
any
 
instruction or
 
authorisation
 
given
 
by
 
the Majority
 
Lenders
 
to
 
the Agent
 
or the
 
Security
Trustee
 
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document
 
(subject
 
always
 
to
 
Clause
(
Variations, waivers etc. by Majority Lenders)
);
(c)
 
any action
 
taken (or
 
in good faith
 
purportedly taken)
 
by the
 
Agent or
 
the Security Trustee
 
in
accordance with such an instruction or authorisation.
3.5
 
Reliance on action of Agent
However,
 
each Borrower and each Security Party:
(a)
 
shall
 
be
 
entitled
 
to
 
assume
 
that
 
the
 
Majority
 
Lenders
 
have
 
duly
 
given
 
any
 
instruction
 
or
authorisation which, under any provision
 
of a Finance Document, is
 
required in relation to any
action which the Agent has taken or is about to take; and
(b)
 
shall not be
 
entitled to require any evidence
 
that such an
 
instruction or authorisation
 
has been
given.
3.6
 
Construction
In Clauses
 
(
Parties bound by certain actions of Majority Lenders
) and
 
(
Reliance on action of
Agent
) references
 
to action
 
taken
 
include (without
 
limitation) the
 
granting of
 
any waiver
 
or
consent, an approval of any document and an agreement to any matter.
4
 
DRAWDOWN
 
4.1
 
Request for an Advance
Subject
 
to
 
the
 
following
 
conditions,
 
the
 
Borrowers
 
may
 
request
 
an
 
Advance
 
to
 
be made
 
in
relation to a Ship by ensuring that the Agent receives a completed Drawdown Notice not later
than 11.00 a.m. (Oslo
 
time) three Business Days
 
(or such shorter period
 
as the Agent
 
may,
 
in
its absolute discretion, agree) prior to the intended Drawdown Date.
4.2
 
Availability
The conditions referred to in Clause
 
(
Request for an Advance
) are that:
(a)
 
the Drawdown Date has to be a Business Day during the Availability Period;
 
(b)
 
there shall be no more than one Advance in respect of each Tranche;
(c)
 
the amount of the Advance under a Tranche shall not exceed the lesser of:
(i)
 
the
 
amount
 
set
 
out
 
for
 
that
 
Advance
 
in
 
the
 
definition
 
of
 
that
 
Tranche
 
in
 
Clause
(
Definitions
) representing approximately 60 per cent. of the
 
Purchase Price of the Ship
to which that Tranche relates;
 
and
 
(ii)
 
67.5 per cent.
 
of the Initial
 
Market Value of the Ship to
 
which that Tranche relates;
 
and
(d)
 
the aggregate amount of all Advances shall not exceed the Total
 
Commitments.
4.3
 
Notification to Lenders of receipt of a Drawdown Notice
The Agent shall promptly notify the Lenders that it has received a Drawdown
 
Notice and shall
inform each Lender of:
(a)
 
the amount of the Advance and the Drawdown Date;
(b)
 
the amount of that Xxxxxx's participation in the Advance; and
(c)
 
the duration of the first Interest Period.
4.4
 
Drawdown Notice irrevocable
A
 
Drawdown
 
Notice
 
must
 
be
 
signed
 
by
 
a
 
director
 
or
 
an
 
authorised
 
representative
 
of
 
each
Borrower; and once served, a Drawdown Notice cannot be revoked without the prior consent
of the Agent, acting on the authority of the Majority Lenders.
4.5
 
Lenders to make available Contributions
Subject
 
to
 
the
 
provisions
 
of
 
this
 
Agreement,
 
each
 
Lender
 
shall,
 
on
 
and
 
with
 
value
 
on
 
the
Drawdown
 
Date, make
 
available to
 
the Agent
 
for
 
the account
 
of the
 
Borrowers
 
the amount
due from
 
that Lender
 
on the
 
Drawdown
 
Date
 
under Clause
 
(
Lenders' participations
 
in the
Loan
).
4.6
 
Disbursement of an Advance
Subject to the provisions of this Agreement, the Agent
 
shall on the Drawdown Date pay to the
Borrowers the amounts which the Agent receives
 
from the Lenders under Clause
 
(
Lenders to
make available Contributions
); and that payment to the Borrowers shall be made:
(a)
 
to the account which the Borrowers specify in the Drawdown Notice; and
(b)
 
in the like funds as the Agent received the payments from the Lenders.
4.7
 
Disbursement of Advance to third party
The payment
 
by the Agent
 
under Clause
 
(
Disbursement of an
 
Advance
) shall constitute
 
the
making of the
 
Advance and the
 
Borrowers shall at that
 
time become indebted, as
 
principal and
direct obligors, to each Lender in an amount equal to that Xxxxxx's Contribution.
4.8
 
Designated Transactions under the Master Agreement
(a)
 
The
 
Borrowers
 
may
 
at
 
any
 
time
 
conclude
 
Designated
 
Transactions
 
with
 
the
 
Swap
 
Bank
pursuant
 
to
 
the
 
Master
 
Agreement
 
for
 
the
 
purpose
 
of
 
swapping
 
their
 
interest
 
payment
obligations and
 
managing exposure
 
to interest
 
rate fluctuations
 
and currency
 
risk under
 
this
Agreement.
 
The Borrower
 
s
 
agree that
 
signature of
 
the Master
 
Agreement does
 
not commit
the Swap Bank
 
to conclude Designated
 
Transactions, or
 
even to offer
 
terms for doing
 
so, but
does
 
provide
 
a
 
contractual
 
framework
 
within
 
which
 
Designated
 
Transactions
 
may
 
be
concluded
 
and
 
secured,
 
assuming
 
that
 
mutually
 
acceptable
 
terms
 
can
 
be
 
agreed
 
at
 
the
relevant time.
(b)
 
The Lenders agree that, to enable the Borrowers
 
to secure their obligations to the Swap Bank
under the
 
Master Agreement,
 
the security
 
of the
 
other Finance
 
Documents shall
 
be held
 
by
the Security Trustee
 
not only to
 
secure the Borrower
 
s' obligations
 
under this Agreement
 
but
also the Borrowers' obligations under the Master
 
Agreement on the terms set out in Clause
(
Application of receipts
).
4.9
 
Prepositioning of funds
If,
 
in respect
 
of
 
any
 
proposed Advance
 
under a
 
Tranche,
 
the Lenders,
 
at the
 
request
 
of
 
the
Borrowers
 
and
 
on
 
terms
 
acceptable
 
to
 
all
 
the
 
Lenders
 
and
 
in
 
their
 
absolute
 
discretion,
preposition funds with the Escrow Agent and each Borrower:
(a)
 
agree
 
to
 
pay
 
interest
 
on
 
the amount
 
of
 
the funds
 
so prepositioned
 
at the
 
rate
 
described in
Clause
 
(
Calculation of interest
) on the basis of successive interest periods of
 
one day and so
that interest
 
shall be
 
paid together
 
with the
 
first payment
 
of interest
 
on such
 
Advance after
the Drawdown
 
Date in
 
respect of
 
it or,
 
if such
 
Drawdown Date
 
does not
 
occur,
 
within three
Business Days of demand by the Agent; and
(b)
 
shall, without
 
duplication, indemnify
 
each Creditor
 
Party against
 
any costs,
 
loss or
 
liability it
may incur in connection with such arrangement.
5
 
INTEREST
 
5.1
 
Calculation of interest
The
 
rate
 
of
 
interest
 
on
 
the
 
Loan
 
or
 
any
 
part
 
of
 
the
 
Loan
 
for
 
each
 
Interest
 
Period
 
is
 
the
percentage rate per annum which is the aggregate of the applicable:
(a)
 
Xxxxxx; and
(b)
 
Reference Rate.
5.2
 
Payment of interest
(a)
 
The Borrowers
 
shall pay accrued
 
interest on
 
the Loan or
 
any part of
 
the Loan on the
 
last day
of each Interest Period.
(b)
 
If an
 
Interest
 
Period is
 
longer than
 
three Months,
 
the Borrowers
 
shall also
 
pay interest
 
then
accrued on
 
the Loan
 
or
 
the relevant
 
part of
 
the Loan
 
on
 
the dates
 
falling
 
at
 
three
 
Monthly
intervals after the first day of the Interest Period.
5.3
 
Default interest
(a)
 
If a Security Party fails
 
to pay any
 
amount payable by it
 
under a Finance Document on its due
date,
 
interest
 
shall
 
accrue
 
on
 
the
 
Unpaid
 
Sum
 
from
 
the
 
due
 
date
 
up
 
to
 
the
 
date
 
of
 
actual
payment (both
 
before
 
and after
 
judgment) at
 
a rate
 
which, subject
 
to paragraph
 
below,
 
is
two per cent.
 
per annum higher than
 
the rate
 
which would have
 
been payable if
 
the Unpaid
Sum had,
 
during the
 
period of
 
non-payment, constituted
 
part of
 
the Loan
 
in the
 
currency of
the Unpaid Sum for successive Interest Periods, each of
 
a duration selected by the Agent.
 
Any
interest
 
accruing under
 
this Clause
 
(
Default
 
interest
)
 
shall
 
be immediately
 
payable
 
by
 
the
Borrowers on demand by the Agent.
(b)
 
If an Unpaid Sum consists of all or part of the Loan which
 
became due on a day which was not
the last day of an Interest Period relating to the Loan or that part of the Loan:
(i)
 
the
 
first
 
Interest
 
Period
 
for
 
that
 
Unpaid
 
Sum
 
shall
 
have
 
a
 
duration
 
equal
 
to
 
the
unexpired portion of the
 
current Interest Period relating to the
 
Loan or that
 
part of the
Loan; and
(ii)
 
the rate of
 
interest applying to
 
that Unpaid Sum during that
 
first Interest
 
Period shall
be two
 
per cent.
 
per annum
 
higher than
 
the rate
 
which would
 
have
 
applied if
 
that
Unpaid Sum had not become due.
 
(c)
 
Default interest (if unpaid)
 
arising on
 
an Unpaid
 
Sum will
 
be compounded with
 
the Unpaid
 
Sum
at the end of each Interest Period
 
applicable to that Unpaid Sum but will remain immediately
due and payable.
(d)
 
For
 
the
 
avoidance
 
of
 
doubt,
 
this
 
Clause
 
(
Default
 
interest
)
 
does
 
not
 
apply
 
to
 
any
 
amount
payable under the
 
Master Agreement in respect
 
of any continuing Designated
 
Transaction
 
as
to which the relevant provisions of the Master Agreement shall apply.
5.4
 
Notification of rates of interest
(a)
 
The Agent shall promptly notify the Lenders and the Borrowers
 
of the determination of a rate
of interest under this Agreement.
(b)
 
The Agent shall promptly notify the
 
Borrowers
 
of each Funding Rate relating to
 
the Loan, any
part of the Loan or any Unpaid Sum.
6
 
INTEREST PERIODS
 
6.1
 
Selection of Interest Periods
(a)
 
The Borrowers
 
may select
 
the Interest
 
Period
 
for each
 
Tranche
 
in the
 
Drawdown
 
Notice for
the first Advance in that Tranche
 
.
 
The Borrowers
 
may select each subsequent Interest Period
in respect of a Tranche in a Selection Notice.
(b)
 
Each Selection Notice is irrevocable and must be delivered
 
to the Agent by the Borrowers
 
not
later than five Business Days before the expiry of the preceding Interest Period.
(c)
 
If the Borrowers
 
fail to select an Interest Period in the
 
first Drawdown Notice or fails to deliver
a Selection
 
Notice to
 
the Agent
 
in accordance
 
with paragraphs
 
and
 
above, the
 
relevant
Interest Period will be 3 Months.
(d)
 
Subject to this Clause 6 (
Interest Periods
), the Borrowers
 
may select an Interest
 
Period of one
or three Months or any other period agreed between the Borrowers
 
and the Agent (acting on
the instructions of all the Lenders).
(e)
 
An Interest Period in respect of
 
a Tranche or any part of a
 
Tranche shall not extend beyond the
Termination Date
 
.
(f)
 
The first
 
Interest
 
Period
 
for each
 
Tranche
 
shall start
 
on the
 
first
 
Drawdown
 
Date
 
relating
 
to
such Tranche and,
 
subject to paragraph (g) below,
 
each subsequent Interest Period shall start
on the last day of the preceding Interest Period.
(g)
 
If
 
the
 
Borrowers
 
have
 
selected
 
an
 
Interest
 
Period
 
for
 
any
 
subsequent
 
Advance
 
under
 
any
Tranche which ends on a
 
day which is after the next Repayment Date,
 
the Agent may shorten
the Interest
 
Period
 
for
 
any
 
Tranche
 
as necessary
 
to
 
ensure that
 
the Interest
 
Period
 
for
 
that
Tranche ends on the relevant Repayment
 
Date. In the event that only part of a Tranche is due
for repayment,
 
that portion
 
of such
 
Tranche
 
will be
 
treated as
 
a separate
 
Tranche
 
to ensure
that
 
there
 
are
 
sufficient
 
Tranches
 
which
 
have
 
an
 
Interest
 
Period
 
ending
 
on
 
the
 
relevant
Repayment Date.
(h)
 
Each Tranche shall have one Interest
 
Period only at any time.
6.2
 
Non-Business Days
If an Interest
 
Period would otherwise
 
end on a
 
day which is
 
not a Business Day,
 
that Interest
Period will instead end on the next
 
Business Day in that calendar
 
month (if there is one) or
 
the
preceding Business Day (if there is not).
 
CHANGES TO THE CALCULATION OF INTEREST
7.1
 
Unavailability of Term SOFR
(a)
Interpolated Term SOFR
:
 
If no Term SOFR is available for
 
the Interest Period of the
 
Loan or any
part
 
of
 
the
 
Loan,
 
the
 
applicable
 
Reference
 
Rate
 
shall
 
be
 
the
 
Interpolated
 
Term
 
SOFR
 
for
 
a
period equal in length to the Interest Period of the Loan or that part of the Loan.
(b)
Shortened Interest Period
:
 
If no Term SOFR is available for the Interest Period of a Loan or any
part of
 
the Loan
 
and it
 
is not
 
possible to
 
calculate the
 
Interpolated
 
Term
 
SOFR, the
 
Interest
Period of
 
that Loan
 
or that
 
part of
 
the Loan
 
shall (if
 
it is
 
longer than
 
the applicable
 
Fallback
Interest
 
Period)
 
be
 
shortened
 
to
 
the
 
applicable
 
Fallback
 
Interest
 
Period
 
and
 
the
 
applicable
Reference
 
Rate
 
for
 
that
 
shortened
 
Interest
 
Period
 
shall
 
be
 
determined
 
pursuant
 
to
 
the
definition of "
Reference Rate
".
(c)
Cost of
 
funds
:
 
If paragraph
 
above applies
 
but no Term
 
SOFR is
 
available for
 
the applicable
Fallback Interest
 
Period or the
 
Interest Period
 
is shorter than
 
the applicable Fallback
 
Interest
Period, there
 
shall be no
 
Reference Rate
 
for the Loan
 
or that part
 
of the Loan
 
(as applicable)
and Clause
 
(
Cost of
 
funds
) shall
 
apply to
 
the Loan or
 
that part of
 
the Loan
 
for that
 
Interest
Period.
7.2
 
Market disruption
If before close of
 
business in London
 
on the Quotation
 
Day for the relevant Interest Period,
 
the
Agent receives notification from
 
a Lender or Lenders (whose participations in the Loan
 
or the
relevant
 
part
 
of
 
the
 
Loan
 
exceed
 
50
 
per
 
cent.
 
of
 
the
 
Loan
 
or
 
that
 
part
 
of
 
the
 
Loan
 
as
appropriate) that
 
its cost
 
of funds
 
relating to
 
its participation
 
in the
 
Loan or
 
that part
 
of the
Loan would be in
 
excess of the Market Disruption
 
Rate then Clause
 
(
Cost of funds
) shall apply
to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
7.3
 
Cost of funds
(a)
 
If this Clause
 
(
Cost of funds
) applies, the rate
 
of interest on
 
each Lender's share of the Loan
or the
 
relevant part
 
of the Loan
 
for the
 
relevant Interest
 
Period shall be
 
the percentage
 
rate
per annum which is the sum of:
(i)
 
the Margin; and
(ii)
 
the
 
weighted
 
average
 
of
 
the rates
 
notified to
 
the
 
Agent
 
by
 
each
 
Lender as
 
soon
 
as
practicable and in any
 
event before interest is due to
 
be paid in
 
respect of that Interest
Period
 
to
 
be that
 
which expresses
 
as a
 
percentage
 
rate
 
per annum
 
its cost
 
of funds
relating to its participation in the Loan or that part of the Loan.
(b)
 
If this Clause
 
(
Cost of funds
) applies and the
 
Agent or the
 
Borrowers
 
so requires, the
 
Agent
and the Borrowers
 
shall enter into negotiations (for a period of not more than 30 days) with a
view to agreeing a substitute basis for determining the rate of interest or (as the case may be)
an alternative basis for funding.
(c)
 
Subject
 
to
 
Clause
 
(
Changes to
 
reference
 
r
ates
),
 
any
 
substitute
 
or
 
alternative
 
basis
 
agreed
pursuant
 
to
 
paragraph
 
above
 
shall,
 
with
 
the
 
prior
 
consent
 
of
 
all
 
the
 
Lenders
 
and
 
the
Borrowers, be binding on all Parties.
(d)
 
If paragraph
 
below does not apply and
 
any rate notified to the Agent under sub-paragraph
of paragraph
 
above is less than zero, the relevant rate shall be deemed to be zero.
(e)
 
If this Clause
 
(
Cost of funds
) applies pursuant to Clause
 
(
Market disruption
) and:
(i)
 
a Lender's Funding Rate is less than the Market Disruption Rate; or
(ii)
 
a Lender does not notify a rate
 
by the time specified in sub-paragraph
 
of paragraph
 
above,
that Xxxxxx's cost
 
of funds relating
 
to its participation
 
in the Loan
 
or the relevant
 
part of the
Loan for
 
that Interest
 
Period shall
 
be deemed,
 
for the
 
purposes of
 
paragraph
 
above, to
 
be
the Market Disruption Rate.
(f)
 
If this Clause
 
(
Cost of funds
) applies but any
 
Lender does not
 
notify a rate to the
 
Agent by the
time specified in sub-paragraph
 
of paragraph
 
above the rate of interest shall be calculated
on the basis of the rates notified by the remaining Lenders.
7.4
 
Break Costs
(a)
 
The Borrower
 
s
 
shall, within
 
three
 
Business Days
 
of demand
 
by a
 
Creditor Party,
 
pay
 
to
 
that
Creditor Party
 
its Break Costs
 
attributable to
 
all or any
 
part of the Loan
 
or Unpaid Sum being
paid by
 
the Borrower
 
s
 
on a
 
day
 
prior to
 
the last
 
day of
 
an Interest
 
Period
 
for
 
the Loan,
 
the
relevant part of the Loan or that Unpaid Sum.
(b)
 
Each Lender
 
shall, as
 
soon as reasonably
 
practicable after
 
a demand by
 
the Agent,
 
provide a
certificate confirming the amount of its Break Costs for any Interest Period in respect
 
of which
they become or may become payable.
8
 
REPAYMENT
 
AND PREPAYMENT
 
8.1
 
Amount of repayment instalments
The Borrowers shall repay each Tranche
 
by:
(a)
 
20 equal
 
consecutive quarterly instalments
 
(each, a
 
"
Repayment Instalment
" and,
 
in the
 
plural
means, all of them) in the amount of X each (rounded to nearest hundred); and
(b)
 
a balloon instalment in the amount of Y (the "
Balloon Instalment
").
In this Clause
 
(
Amount of repayment instalments
):
"
Age
" means,
 
in relation
 
to a
 
Ship, the
 
age of
 
that Ship
 
on the
 
Delivery Date
 
of the
 
Tranche
which is used to finance or refinance that Ship, such
 
age to be calculated as from the Relevant
Yard Delivery of that Ship (rounded to two decimals);
"
Delivery Date
" means, in
 
relation to each Ship,
 
the date on which
 
that Ship is
 
delivered by the
relevant
 
Seller
 
to,
 
and
 
accepted
 
by
 
the
 
Borrower
 
which
 
is,
 
or
 
is
 
to
 
be
 
the
 
owner
 
thereof
pursuant to the relevant MOA;
 
"
U
" means the product of V and 4;
"
V
" means,
 
in relation
 
to a
 
Tranche,
 
18 minus
 
the Age
 
of the
 
Ship financed
 
or refinanced
 
by
that Tranche;
"
W
" means X multiplied by 20;
"
X
" means an amount achieved by dividing Z by U;
"
Y
" means, in relation to each Tranche, Z minus W;
 
"
Yard Delivery Date
" means:
(i)
 
in relation to Ship A, 2015;
(ii)
 
in relation to Ship B, 2017;
(iii)
 
in relation to Ship C, 2016;
(iv)
 
in relation to Ship D, 2015;
(v)
 
in relation to Ship E, 2018;
(vi)
 
in relation to Ship F,
 
2015;
(vii)
 
in relation to Ship G, 2018;
(viii)
 
in relation to Ship H, 2016;
 
and
(ix)
 
in relation to Ship I, 2016.
"
Z
" means,
 
in
 
relation
 
to
 
each Tranche,
 
the amount
 
of
 
that
 
Tranche
 
on
 
its Drawdown
 
Date
(after the same has been made available to the Borrowers).
8.2
 
Repayment Dates
The first Instalment in respect
 
of each Tranche shall be
 
repaid on the
 
date falling three Months
after
 
the
 
first
 
Drawdown
 
Date,
 
each
 
subsequent
 
Repayment
 
Instalment
 
in
 
respect
 
of
 
each
Tranche
 
shall be
 
repaid at
 
quarterly intervals
 
thereafter
 
and the
 
last Repayment
 
Instalment
together
 
with the Balloon Instalment shall be repaid on the Termination Date.
8.3
 
Final Repayment Date
On the final
 
Repayment Date, the Borrowers
 
shall additionally
 
pay to the
 
Agent for the
 
account
of the Creditor Parties all other sums then accrued or owing under any Finance Document.
8.4
 
Voluntary prepayment
Subject to
 
the following
 
conditions, the
 
Borrowers
 
may prepay
 
the whole
 
or any
 
part of
 
the
Loan on the last day of an Interest Period applicable to it.
8.5
 
Conditions for voluntary prepayment
The conditions referred to in Clause
 
(
Voluntary prepayment
) are that:
(a)
 
a partial prepayment shall be $500,000 or a higher integral multiple of $500,000;
(b)
 
the Agent has received from the Borrowers at least three days
 
'
 
prior written notice specifying
the amount to be prepaid and the date on which the prepayment is to be made;
 
(c)
 
the Borrowers have provided evidence satisfactory
 
to the Agent that any consent required by
any Borrower or any Security Party in connection
 
with the prepayment has been
 
obtained and
remains
 
in
 
force,
 
and
 
that
 
any
 
regulation
 
relevant
 
to
 
this
 
Agreement
 
which
 
affects
 
any
Borrower or any Security Party has been complied with; and
(d)
 
the Borrowers have
 
complied with
 
Clause
Unwinding of
 
Designated Transactions
) on
 
or prior
to the date of prepayment.
8.6
 
Effect of notice of prepayment
A prepayment
 
notice may
 
not be
 
withdrawn or
 
amended without
 
the consent
 
of the
 
Agent,
given
 
with
 
the
 
authorisation
 
of
 
the
 
Majority
 
Lenders,
 
and
 
the
 
amount
 
specified
 
in
 
the
prepayment
 
notice
 
shall
 
become
 
due
 
and
 
payable
 
by
 
the
 
Borrowers
 
on
 
the
 
date
 
for
prepayment specified in the prepayment notice.
8.7
 
Notification of notice of prepayment
The
 
Agent
 
shall notify
 
the Lenders
 
promptly
 
upon receiving
 
a
 
prepayment
 
notice, and
 
shall
provide any Lender
 
which so
 
requests with a
 
copy of
 
any document delivered
 
by the
 
Borrowers
under Clause
 
(
Conditions for voluntary prepayment
).
8.8
 
Mandatory prepayment
The Borrowers shall be obliged to prepay the whole of
 
the Relevant Amount if a Ship is sold or
becomes a Total Loss:
(a)
 
in the case of a sale, on or before the date on which the Mortgage on that Ship is released; or
(b)
 
in the case of a Total
 
Loss, on the earlier of the date falling
 
180 days after the Total
 
Loss Date
and the date
 
of receipt
 
by the Security
 
Trustee
 
of the proceeds
 
of insurance
 
relating to
 
such
Total
 
Loss.
In this Clause
 
(
Mandatory prepayment
) "
Relevant Amount
" means an
 
amount which is
 
the
higher of: (a) the outstanding amount of the Tranche
 
relating to the Ship which has been sold
or become
 
Total
 
Loss and
 
(b) the
 
amount achieved
 
by dividing
 
the Market
 
Value
 
of the
 
Ship
which has
 
been sold
 
or become
 
Total
 
Loss by
 
the aggregate
 
of the
 
Market
 
Value
 
of all
 
Ships
(including the Ship
 
that has become
 
sold or Total
 
Loss) and multiplying
 
it by
 
the Loan on
 
the
date that the relevant Ship is sold or becomes a Total
 
Loss.
 
8.9
 
Mandatory prepayment upon Change of Control
 
If a Change of Control occurs:
(a)
 
the Borrower shall promptly notify the Agent upon becoming aware of that event; and
(b)
 
if the Majority Lenders so require, the
 
Agent shall, by not less than 10
 
Business Days' notice to
the Borrower,
 
cancel the Facilities
 
and declare the
 
Xxxx, together with
 
accrued interest,
 
and
all
 
other
 
amounts
 
accrued
 
under
 
the
 
Finance
 
Documents
 
immediately
 
due
 
and
 
payable,
whereupon the Facilities will be
 
cancelled and the Loan and all
 
such outstanding interest
 
and
other amounts will become immediately due and payable.
8.10
 
Amounts payable on prepayment
A prepayment
 
shall be
 
made together
 
with accrued
 
interest (and
 
any other
 
amount payable
under Clause
 
(
Indemnities
) or
 
otherwise) in
 
respect of
 
the amount
 
prepaid and,
 
subject to
any Break Costs without premium or penalty.
 
8.11
 
Application of partial prepayment
Each
 
partial
 
prepayment
 
made
 
pursuant
 
to
 
Clauses
 
(
Voluntary
 
prepayment
)
 
and
(
Mandatory prepayment
 
upon change
 
of
 
control
) shall
 
be applied
 
pro
 
rata
 
against
 
the then
outstanding
 
Tranches
 
and
 
thereafter
 
pro
 
rata
 
against
 
the
 
then
 
outstanding
 
Repayment
Instalments
 
and
 
the
 
Balloon
 
Instalment
 
of
 
each
 
Tranche.
 
Each
 
partial
 
prepayment
 
made
pursuant to Clause
 
(
Mandatory prepayment
) shall be applied against the Tranche relating to
the Ship
 
which has
 
been sold
 
or become
 
Total
 
Loss and,
 
if there
 
is any
 
excess
 
following
 
the
prepayment in full of
 
such Tranche, such excess shall be
 
applied pro rata against the
 
remaining
then outstanding
 
Tranches
 
and thereafter
 
pro rata
 
against the
 
then outstanding
 
Repayment
Instalments and the Balloon Instalment of each such Tranche.
8.12
 
No re-borrowing
No amount prepaid may be re-borrowed.
8.13
 
Unwinding of Designated Transactions
On or prior to any repayment or prepayment of the Loan under this Clause
 
(
Repayment and
prepayment
) or any other provision of this Agreement, each Borrower shall wholly
 
or partially
reverse,
 
offset,
 
unwind
 
or
 
otherwise
 
terminate
 
one
 
or
 
more
 
of
 
the
 
continuing
 
Designated
Transactions so
 
that the notional principal amount of the continuing Designated Transactions
thereafter
 
remaining does
 
not and
 
will not
 
in the
 
future (taking
 
into
 
account the
 
scheduled
amortisation)
 
exceed
 
the
 
amount
 
of
 
the
 
Loan
 
as
 
reducing
 
from
 
time
 
to
 
time
 
thereafter
pursuant to Clause
 
(
Amount of repayment instalments
).
9
 
CONDITIONS PRECEDENT
 
9.1
 
Documents, fees and no default
Each
 
Lender's obligation
 
to
 
contribute
 
to
 
an
 
Advance
 
is
 
subject to
 
the
 
following
 
conditions
precedent:
 
(a)
 
that, on or before the service of the Drawdown Notice, the Agent receives:
(i)
 
the
 
documents
 
described
 
in
 
of
 
(
Condition
 
precedent
 
documents
)
 
in
 
form
 
and
substance satisfactory to the Agent and its lawyers; and
(ii)
 
the arrangement xxx referred to in Clause
 
(a) (
Fees
);
(b)
 
that, on
 
or before
 
the Drawdown
 
Date
 
in relation
 
to each
 
Tranche,
 
the Agent
 
receives or
 
is
satisfied that it
 
will receive on the
 
advance of the Tranche
 
the documents described in
 
of
(
Condition precedent documents
) in form and substance satisfactory to it and its lawyers;
(c)
 
that,
 
on or
 
before
 
the service
 
of the
 
Drawdown
 
Notice, the
 
Agent
 
receives
 
payment of
 
any
expenses
 
payable
 
pursuant
 
to
 
Clause
 
(
Costs of
 
negotiation, preparation
 
etc
.) which
 
is due
and payable on the Drawdown Date relating to that Tranche
 
;
(d)
 
that both at the date of the Drawdown Notice and at the Drawdown Date:
(i)
 
no Event of Default or
 
Potential Event of Default has
 
occurred or would
 
result from the
borrowing of that Tranche;
 
(ii)
 
the representations and warranties in
 
Clause
 
(
General
) and those
 
of any Borrower or
any
 
Security Party
 
which are
 
set out
 
in the
 
other Finance
 
Documents would
 
be true
and
 
not
 
misleading
 
if
 
repeated
 
on
 
each
 
of
 
those
 
dates
 
with
 
reference
 
to
 
the
circumstances then existing;
 
(iii)
 
none of the circumstances
 
contemplated by Xxxxxx
 
(
Market disruption
) has occurred
and is continuing; and
(iv)
 
there has
 
been no material
 
adverse change
 
in the financial
 
condition, state
 
of affairs
or prospects of the Borrowers (or any of them), the Corporate Guarantor or any other
Security Party since 8 August 2022 in the light of which
 
the Agent considers that there
is a significant risk that the Borrowers,
 
the Corporate Guarantor or
 
any other Security
Party
 
is,
 
or
 
will
 
later
 
become,
 
unable
 
to
 
discharge
 
its
 
liabilities
 
under
 
the
 
Finance
Documents to which it is a party as they fall due;
(e)
 
that,
 
if
 
the
 
ratio
 
set
 
out
 
in
 
Clause
 
(
Minimum
 
required
 
security
 
cover
)
 
were
 
applied
immediately following the
 
making of
 
a Tranche, the Borrowers
 
would not
 
be obliged
 
to provide
additional security or prepay part of the Loan under that Xxxxxx; and
(f)
 
that the Agent has received, and found
 
to be acceptable to it,
 
any further opinions, consents,
agreements and documents in connection with the Finance Documents which
 
the Agent may,
with the authorisation
 
of the Majority
 
Lenders, request by notice
 
to the Borrowers prior
 
to the
Drawdown Date.
9.2
 
Waiver of conditions precedent
If the Majority Lenders, at their discretion, permit a Tranche to be borrowed before certain of
the
 
conditions
 
referred
 
to
 
in
 
Clause
 
(
Documents,
 
fees
 
and
 
no
 
default
)
 
are
 
satisfied,
 
the
Borrowers shall
 
ensure that those
 
conditions are satisfied
 
within five Business
 
Days after
 
the
Drawdown
 
Date
 
(or
 
such
 
longer
 
period
 
as
 
the
 
Agent
 
may,
 
with
 
the
 
authorisation
 
of
 
the
Majority Lenders, specify).
10
 
REPRESENTATIONS
 
AND WARRANTIES
10.1
 
General
Each Borrower represents and warrants to each Creditor Party as follows.
10.2
 
Status
(a)
 
Each Borrower is duly incorporated and validly existing and
 
in good standing under the
 
laws of
the Xxxxxxxx Islands.
10.3
 
Shares and ownership
(a)
 
Each
 
Borrower
 
is authorised
 
to issue
 
five hundred
 
(500) registered
 
shares with
 
par value
 
of
$0,01 each.
(b)
 
The legal title and beneficial ownership of all those shares
 
is held, free of any Security Interest
or other claim, by the Corporate Guarantor.
10.4
 
Corporate power
Each Borrower has the corporate capacity,
 
and has taken all corporate action and obtained all
consents necessary for it:
(a)
 
to register permanently the Ship owned by it in its name under the Approved Flag;
(b)
 
to execute the Finance Documents to which that Xxxxxxxx is a party; and
(c)
 
to
 
borrow
 
under
 
this
 
Agreement,
 
to
 
enter
 
into
 
Designated
 
Transactions
 
under
 
the
 
Master
Agreement and to make all
 
the payments contemplated by, and to comply with,
 
those Finance
Documents to which it is a party.
10.5
 
Consents in force
All
 
the consents
 
referred
 
to
 
in Clause
 
(
Corporate power
) remain
 
in
 
force
 
and nothing
 
has
occurred which makes any of them liable to revocation.
10.6
 
Legal validity; effective Security Interests
The Finance Documents
 
to which each
 
Borrower is a party, do now
 
or, as the case may be, will,
upon execution and delivery
 
(and, where applicable,
 
registration as provided for in
 
the Finance
Documents):
 
(a)
 
constitute
 
that
 
Borrower's
 
legal,
 
valid
 
and
 
binding
 
obligations
 
enforceable
 
against
 
that
Borrower in accordance with their respective terms; and
(b)
 
create
 
legal,
 
valid
 
and
 
binding
 
Security
 
Interests
 
enforceable
 
in
 
accordance
 
with
 
their
respective terms over all the assets to which they, by their terms, relate;
subject to any relevant insolvency laws affecting creditors'
 
rights generally.
10.7
 
No third party Security Interests
Without limiting the
 
generality of
 
Clause
 
(
Legal validity;
 
effective Security Interests
), at
 
the
time of the execution and delivery of each Finance Document to which a Borrower is a party:
 
(a)
 
each Borrower which is
 
a party to that
 
Finance Document will have
 
the right to create
 
all the
Security Interests which that Finance Document purports to create; and
(b)
 
no third
 
party will
 
have any
 
Security Interest
 
(except for
 
Permitted Security
 
Interests) or
 
any
other
 
interest,
 
right
 
or
 
claim over,
 
in or
 
in
 
relation
 
to
 
any
 
asset
 
to
 
which
 
any
 
such Security
Interest, by its terms, relates.
10.8
 
No conflicts
The
 
execution
 
by
 
each
 
Borrower
 
of
 
each
 
Finance
 
Document
 
to
 
which
 
it
 
is
 
a
 
party,
 
and
 
the
borrowing by
 
that Borrower
 
of the
 
Loan (or
 
any part
 
thereof), and
 
its compliance
 
with each
Finance Document to which it is a party will not involve or lead to a contravention of:
(a)
 
any law or regulation; or
(b)
 
the constitutional documents of that Borrower; or
(c)
 
any contractual
 
or other obligation
 
or restriction which
 
is binding on that
 
Borrower or any
 
of
its assets.
10.9
 
No withholding taxes
All payments which each Borrower is liable to make under the Finance Documents to which it
is a party may be made without
 
deduction or withholding for or
 
on account of any tax payable
under any law of any Pertinent Jurisdiction.
10.10
 
No default
No Event of Default or Potential Event
 
of Default has occurred.
10.11
 
Information
All information
 
which has
 
been provided
 
in writing
 
by or
 
on behalf
 
of the
 
Borrowers
 
or any
Security Party
 
to
 
any
 
Creditor
 
Party
 
in connection
 
with any
 
Finance Document
 
satisfied
 
the
requirements
 
of
 
Clause
 
(
Information
 
provided
 
to
 
be
 
accurate
);
 
all
 
audited
 
and
 
unaudited
accounts which
 
have been so
 
provided satisfied the
 
requirements of Clause
Form of
 
financial
statements
); and there has been no material
 
adverse change in the financial position or
 
state
of affairs of any Borrower from that disclosed in the latest of those accounts.
10.12
 
No litigation
No
 
legal
 
or
 
administrative
 
action
 
involving
 
any
 
Borrower
 
(including
 
action
 
relating
 
to
 
any
alleged or actual breach of the ISM Code or the ISPS Code) has been commenced or
 
taken or,
to any Xxxxxxxx's knowledge, is likely to be commenced or taken.
10.13
 
Compliance with certain undertakings
At the date of this Agreement, the Borrowers are in compliance with Clauses
 
(
Title; negative
pledge
),
 
(
No other liabilities or
 
obligations to be incurred
),
 
(
Consents
) and
 
(
Principal place
of business
).
10.14
 
Taxes
 
paid
Each Borrower has paid
 
all taxes applicable to,
 
or imposed on or in relation to
 
that Borrower,
its business or the Ship owned by it.
10.15
 
ISM Code and ISPS Code compliance
All
 
requirements
 
of
 
the
 
ISM
 
Code
 
and
 
the
 
ISPS
 
Code
 
as
 
they
 
relate
 
to
 
the
 
Borrowers,
 
the
Approved Manager and the Ships have been complied with.
10.16
 
No money laundering
Without
 
prejudice
 
to
 
the
 
generality
 
of
 
Clause
 
(
Purpose
 
of
 
the
 
Loan
),
 
in
 
relation
 
to
 
the
borrowing by
 
the Borrowers
 
of the Loan,
 
the performance and
 
discharge of their
 
obligations
and
 
liabilities
 
under
 
the
 
Finance
 
Documents,
 
and
 
the
 
transactions
 
and
 
other
 
arrangements
affected
 
or
 
contemplated
 
by
 
the
 
Finance
 
Documents
 
to
 
which
 
a
 
Borrower
 
is
 
a
 
party,
 
the
Borrowers
 
confirm
 
(i)
 
that
 
they
 
are
 
acting
 
for
 
their own
 
account;
 
(ii)
 
that
 
they
 
will
 
use
 
the
proceeds of
 
the Loan
 
for their
 
own benefit,
 
under their
 
full responsibility
 
and exclusively
 
for
the purposes specified in this Agreement; (iii) that no Borrower and no Security Party nor
 
any
of
 
their
 
respective
 
subsidiaries,
 
directors,
 
or
 
officers,
 
or,
 
to
 
the
 
best
 
of
 
the
 
Borrowers'
knowledge,
 
any
 
affiliate,
 
agent
 
or
 
employee
 
thereof has
 
engaged
 
in any
 
activity or
 
conduct
which would
 
violate any applicable
 
anti-bribery, anti-corruption or anti-money
 
laundering laws
or
 
regulations
 
in any
 
applicable jurisdiction
 
and each
 
Borrower
 
and each
 
Security Party
 
has
instituted and maintains policies and procedures designated to
 
prevent violation of such laws
regulations and rules and (iv)
 
that the foregoing will
 
not involve or lead
 
to a contravention
 
of
any
 
law,
 
official
 
requirement
 
or
 
other
 
regulatory
 
measure
 
or
 
procedure
 
implemented
 
to
combat "money laundering"
 
(as defined in
 
Article 1 of Directive
 
2005/60/EC of the European
Parliament and of the Council).
 
10.17
 
No immunity
No Borrower,
 
nor any of
 
their assets are
 
entitled to
 
immunity on the
 
grounds of sovereignty
or otherwise from any legal action
 
or proceeding (which shall include, without limitation, suit
attachment prior to judgement, execution or other enforcement).
10.18
 
Sanctions
(a)
 
Each
 
Borrower,
 
Security
 
Party
 
and
 
member
 
of
 
the
 
Group
 
and
 
their
 
respective
 
subsidiaries,
directors, officers, employees, and to the best of each Borrower's knowledge, their respective
agents or representatives has been and is in compliance with Sanctions.
(b)
 
No Borrower,
 
Security Party or
 
member of the
 
Group, none of
 
their subsidiaries and none
 
of
their respective directors, officers, employees, and to the best of each Borrower's knowledge,
none of their respective agents or representatives:
(i)
 
is
 
a
 
Restricted
 
Party,
 
or
 
is
 
involved
 
in
 
any
 
transaction
 
through
 
which
 
it
 
is
 
likely
 
to
become a Restricted Party or result in the imposition of Sanctions against any party to
a Finance Document; or
(ii)
 
is subject to or involved in any inquiry, claim, action, suit, proceedings or
 
investigation
against it with respect to Sanctions by any Sanctions Authority.
10.19
 
Compliance with applicable laws
Each Borrower
 
is at
 
all times
 
in compliance
 
with all
 
applicable laws
 
or regulations,
 
including
but not limited to all Environmental Laws.
11
 
GENERAL UNDERTAKINGS
 
11.1
 
General
Each Borrower undertakes with each Creditor Party to comply with the
 
following provisions of
this Clause
 
(
General undertakings
) at all times
 
during the Security
 
Period except as the Agent
may, with the authorisation of the Majority Lenders, otherwise permit.
11.2
 
Title; negative pledge
Each Borrower will:
(a)
 
hold
 
the
 
legal
 
title
 
to,
 
and
 
own
 
the
 
entire
 
beneficial
 
interest
 
in
 
the
 
Ship
 
owned
 
by
 
it,
 
the
Insurances and Earnings, free
 
from all Security Interests and
 
other interests and rights
 
of every
kind,
 
except
 
for
 
those
 
created
 
by
 
the
 
Finance
 
Documents
 
and
 
the
 
effect
 
of
 
assignments
contained in the Finance Documents and except for Permitted Security Interests; and
(b)
 
not create or
 
permit to
 
arise any
 
Security Interest (except
 
for Permitted Security
 
Interests) over
any other asset, present or future (including, but not limited to, that Xxxxxxxx's rights against
the Swap
 
Bank under the
 
Master Agreement
 
or all
 
or any
 
part of
 
that Xxxxxxxx's
 
interest
 
in
any amount payable to that Borrower by the Swap Bank under the Master Agreement).
11.3
 
No disposal of assets
No Borrower will transfer,
 
lease or otherwise dispose of:
(a)
 
all or a substantial part of
 
its assets, whether by one transaction or a number of transactions,
whether related or not; or
(b)
 
any
 
debt
 
payable
 
to
 
it
 
or
 
any
 
other
 
right
 
(present,
 
future
 
or
 
contingent
 
right)
 
to
 
receive
 
a
payment, including any right to damages or compensation,
but paragraph
 
does not
 
apply to
 
any charter
 
of a
 
Ship as to
 
which Clause
 
(
Restriction on
chartering, appointment of managers etc.
) applies.
11.4
 
No other liabilities or obligations to be incurred
No Borrower will incur any liability or obligation except:
(a)
 
under the Finance Documents to which it is a party;
 
(b)
 
liabilities or
 
obligations reasonably
 
incurred in
 
the ordinary
 
course of
 
owning, operating
 
and
chartering the Ship; and
(c)
 
in respect of the Designated Transactions.
11.5
 
Information provided to be accurate
All financial and other information
 
which is provided in
 
writing by or on
 
behalf of a Borrower
under or
 
in connection
 
with any
 
Finance Document
 
will be
 
true and
 
not misleading
 
and will
not omit any material fact or consideration.
11.6
 
Provision of financial statements
Each Borrower will send or procure that are to be sent to the Agent:
(a)
 
as soon as possible, but in no event later than 180 days after the end of each Financial Year of
the
 
Corporate
 
Guarantor
 
the
 
audited
 
annual
 
consolidated
 
financial
 
statements
 
of
 
the
Corporate Guarantor for that Financial
 
Year of the Corporate Guarantor (commencing
 
with the
financial statements for the year that ended on 31 December 2021);
 
(b)
 
as soon as possible, but
 
in no event
 
later than 90 days
 
after the end of
 
each Financial Year
 
of
the
 
Corporate
 
Guarantor
 
the
 
unaudited
 
annual
 
consolidated
 
financial
 
statements
 
of
 
the
Corporate Guarantor for that Financial
 
Year of the Corporate Guarantor (commencing
 
with the
financial statements for the year that ended on 31 December 2021);
(c)
 
as soon as possible,
 
but in no event
 
later than 90
 
days after 30
 
June in each Financial Year
 
of
the Corporate Guarantor the
 
unaudited semi-annual consolidated financial statements of
 
the
Corporate
 
Guarantor
 
for
 
the
 
first
 
six-month
 
period
 
of
 
such
 
Financial
 
Year
 
and
 
in
 
the
 
form
published in the relevant press
 
release
 
(commencing with the financial statements
 
for the 6-
month period
 
ended on
 
30 June
 
2022) certified
 
as to
 
their correctness
 
by the
 
chief financial
officer of the Corporate Guarantor; and
(d)
 
promptly after
 
a request
 
by the
 
Agent, such
 
further financial or
 
other information
 
in respect
of
 
the
 
Borrowers,
 
the
 
Ships,
 
the
 
Corporate
 
Guarantor,
 
the
 
other
 
Security Parties,
 
the
 
Fleet
Vessels
 
and
 
the
 
Group
 
(including,
 
but
 
not
 
limited
 
to,
 
charter
 
arrangements,
 
Financial
Indebtedness, operating expenses) as the Agent may reasonably require.
11.7
 
Form of financial statements
All accounts delivered under Clause
 
(
Provision of financial statements
) will:
(a)
 
be prepared in accordance with all applicable laws and GAAP consistently applied;
(b)
 
give a true and fair view of the
 
state of affairs
 
of the Group at the date of
 
those accounts and
of its profit for the period to which those accounts relate; and
(c)
 
fully disclose or provide for all significant liabilities of the Group.
11.8
 
Shareholder and creditor notices
Each
 
Borrower
 
will
 
send
 
the
 
Agent,
 
at
 
the
 
same
 
time
 
as
 
they
 
are
 
despatched,
 
copies
 
of
 
all
communications
 
which
 
are
 
despatched
 
to
 
that
 
Borrower's
 
shareholders
 
or
 
creditors
 
or
 
any
class of them.
11.9
 
Consents
Each
 
Borrower will
 
maintain in
 
force
 
and promptly
 
obtain or
 
renew,
 
and will
 
promptly send
certified copies to the Agent of, all consents required:
(a)
 
for that Borrower to
 
perform its obligations
 
under any Finance
 
Document to which
 
it is a
 
party;
 
(b)
 
for the validity or enforceability of any Finance Document to which it is a party; and
(c)
 
for that Borrower to continue to own and operate the Ship owned by it,
and that Xxxxxxxx will comply with the terms of all such consents.
11.10
 
Maintenance of Security Interests
Each Borrower will:
(a)
 
at its
 
own cost,
 
do all that
 
is necessary to
 
ensure that any
 
Finance Document to
 
which it is
 
a
party validly creates the obligations and the Security
 
Interests which it purports to create; and
(b)
 
without limiting the
 
generality of
 
paragraph
, at
 
its own cost,
 
promptly register,
 
file, record
or enrol
 
any Finance
 
Document with
 
any court
 
or authority
 
in all
 
Pertinent Jurisdictions,
 
pay
any
 
stamp,
 
registration
 
or
 
similar tax
 
in
 
all Pertinent
 
Jurisdictions in
 
respect
 
of any
 
Finance
Document, give any
 
notice or
 
take any other
 
step which,
 
in the
 
opinion of
 
the Majority
 
Lenders,
is or has become necessary or desirable for any Finance Document to be valid, enforceable or
admissible
 
in evidence
 
or to
 
ensure
 
or
 
protect
 
the
 
priority of
 
any
 
Security Interest
 
which
 
it
creates.
 
11.11
 
Notification of litigation
Each Borrower will
 
provide the
 
Agent with
 
details of
 
any legal
 
or administrative action
 
involving
that Borrower, any Security Party, the Approved Manager
 
or the Ship
 
owned by it,
 
the Earnings
or the Insurances as soon as such action is instituted or it becomes
 
apparent to that Xxxxxxxx
that it is likely
 
to be instituted, unless
 
it is clear that
 
the legal or administrative
 
action cannot
be considered material in the context of any Finance Document.
 
11.12
 
No amendment to Master Agreement
No Borrower will
 
agree to any
 
amendment or supplement to,
 
or waive or
 
fail to enforce,
 
the
Master Agreement or any of its provisions.
11.13
 
Principal place of business
No Borrower will establish, or do
 
anything as a result of which it would
 
be deemed to have, a
place of business in any country other than Greece.
11.14
 
Confirmation of no default
Each Borrower will,
 
within two Business Days
 
after service by the
 
Agent of a written
 
request,
serve on the Agent a notice which is signed by two directors of that Borrower and which:
(a)
 
states that no Event of Default or Potential
 
Event of Default has occurred; or
(b)
 
states that no
 
Event of Default
 
or Potential Event of
 
Default has occurred,
 
except for a
 
specified
event or matter,
 
of which all material details are given.
The Agent
 
may serve
 
requests under
 
this Clause
 
(
Confirmation of no
 
default
) from
 
time to
time but only if asked to do so by a Lender or Xxxxxxx having Contributions exceeding ten per
cent. of the Loan or (no
 
Advances have been made) Commitments exceeding
 
ten per cent. of
the
 
Total
 
Commitments;
 
and
 
this
 
Clause
 
(
Confirmation of
 
no
 
default
)
 
does
 
not
 
affect
 
the
Borrowers'
 
obligations under Clause
 
(
Notification of default
).
11.15
 
Notification of default
Each Borrower will notify the Agent as soon as that Xxxxxxxx becomes aware of:
(a)
 
the occurrence of an Event of Default or a Potential Event of Default; or
(b)
 
any matter
 
which indicates that
 
an Event of
 
Default or a
 
Potential Event
 
of Default may
 
have
occurred,
and will keep the Agent fully up to date with all developments.
11.16
 
Provision of further information
Each Borrower will, as soon as practicable
 
after receiving the request, provide the Agent
 
with
any additional financial or other information relating:
(a)
 
to the Borrowers, the
 
Group, the Corporate Guarantor, the Ships, the
 
other Fleet Vessels, their
Insurances or their Earnings (including, but
 
not limited to, any
 
sales or purchases of any Fleet
Vessels,
 
the
 
incurrence
 
of
 
Financial
 
Indebtedness
 
by
 
members
 
of
 
the
 
Group,
 
details
 
of
 
the
employment of the Fleet Vessels) as the Agent may require; or
(b)
 
to any other matter relevant to, or to any
 
provision of, a Finance Document,
which may
 
be requested by
 
the Agent, the
 
Security Trustee,
 
the Swap Bank
 
or any
 
Lender at
any time.
11.17
 
Provision of copies and translation of documents
Each
 
Borrower
 
will
 
supply
 
the
 
Agent
 
with
 
a
 
sufficient
 
number
 
of
 
copies
 
of
 
the
 
documents
referred to
 
above to provide one copy
 
for each Creditor Party;
 
and if the Agent so requires
 
in
respect of
 
any of
 
those documents, the
 
Borrowers will
 
provide a
 
certified English translation
prepared by a translator approved by the Agent.
11.18
 
Know your customer
Promptly upon the
 
Agent's request each
 
Borrower will supply,
 
or procure the
 
supply of,
 
such
documentation and other evidence as is reasonably
 
requested by the Agent
 
in order for each
Creditor Party to carry out and be satisfied with the results of all necessary "know
 
your client"
or other checks
 
which it is required
 
to carry out
 
in relation to
 
the transactions contemplated
by the Finance Documents and to the identity of any parties to the Finance Documents (other
than Creditor Parties) and their directors and officers.
11.19
 
Payment of taxes
Each Borrower
 
shall pay
 
when due
 
all taxes
 
applicable to,
 
or imposed on,
 
its business or
 
the
Ship owned by it.
11.20
 
Bribery and anti-corruption laws
(a)
 
No
 
Borrower
 
shall
 
use
 
the
 
proceeds
 
of
 
the
 
Loan
 
for
 
any
 
purpose
 
which
 
would
 
breach
 
the
Bribery
 
Act
 
2010,
 
the
 
United
 
States
 
Foreign
 
Corrupt
 
Practices
 
Act
 
of
 
1977
 
or
 
other
 
similar
legislation in other jurisdictions.
(b)
 
Each Borrower shall (and shall procure that each other Security Party and each other member
of the Group shall):
(i)
 
conduct its businesses in compliance with applicable anti-corruption laws; and
(ii)
 
maintain policies
 
and procedures
 
designed to
 
promote and
 
achieve compliance
 
with
such laws.
11.21
 
Sanctions
(a)
 
Each Borrower shall
 
ensure that
 
none of
 
them or
 
the Security
 
Parties nor
 
any of
 
their respective
subsidiaries
 
or
 
any
 
member
 
of
 
the
 
Group,
 
their
 
respective
 
directors,
 
officers,
 
employees,
agents or representatives or any other persons acting on any of their behalf, is or will become
a Restricted Party.
(b)
 
Each Borrower shall supply to the Agent, promptly upon becoming aware of them, the details
of
 
any
 
inquiry,
 
claim, action,
 
suit,
 
proceeding or
 
investigation
 
pursuant
 
to
 
Sanctions
 
by
 
any
Sanctions Authority
 
against
 
a Borrower,
 
any
 
Security Party,
 
any of
 
their respective
 
direct or
indirect owners,
 
their respective
 
subsidiaries or any
 
member of
 
the Group,
 
any of
 
their joint
ventures or
 
any of
 
their respective
 
directors, officers,
 
employees, agents
 
or representatives,
as well as information on what steps are being taken with regards to answer or oppose such.
(c)
 
Each Borrower shall
 
(and shall procure that
 
the other members of the
 
Group will) implement
and maintain in effect policies
 
and procedures designed
 
to promote and ensure
 
compliance by
them
 
and
 
their
 
respective
 
directors,
 
officers
 
and
 
employees
 
acting
 
on
 
their
 
behalf
 
with
Sanctions and anti-corruption laws and regulations.
11.22
 
Use of proceeds
(a)
 
No proceeds of the Loan or any part of
 
the Loan shall be made available, directly or indirectly
to
 
or
 
for
 
the benefit
 
of
 
a Restricted
 
Party
 
nor shall
 
they
 
be otherwise
 
directly or
 
indirectly,
applied in a manner or for a purpose prohibited by Sanctions or could result in the imposition
of sanctions against any party to any Finance Document.
(b)
 
The Borrowers shall not repay or prepay the Loan or any part thereof
 
or fund all or any part of
any payment under this Agreement (i) out
 
of proceeds from funds or
 
assets that (A) constitute
property of, or that are beneficially owned directly or indirectly by,
 
any Restricted Party or (B)
are
 
obtained
 
or
 
derived
 
from
 
transactions
 
with
 
or
 
relating
 
to
 
any
 
Restricted
 
Party
 
or
transactions in violation of
 
Sanctions or (ii) in any
 
manner that would cause
 
any Lender to be
in violation of Sanctions.
11.23
 
No variation, release etc. of MOA
No Borrower shall, whether by a document, by conduct, by acquiescence or in any other way:
(a)
 
vary the MOA to which it is a party in a material manner (other than with the prior consent of
the Agent (acting on the instructions of the Majority Lenders)); or
(b)
 
release, waive,
 
suspend, subordinate or
 
permit to be
 
lost or impaired
 
any interest
 
or right of
any kind which a Borrower
 
has at any time to, in
 
or in connection with,
 
that MOA or in relation
to any matter arising out of or in connection with that MOA.
11.24
 
Provision of information relating to MOA
Without prejudice to Clause
 
(
Provision of further
information
) each Borrower shall:
(a)
 
immediately inform the
 
Agent if
 
any breach of
 
the MOA
 
to which
 
it is
 
a party
 
occurs or a
 
serious
risk of such a breach arises and of any other event or matter
 
affecting that MOA which has or
is reasonably likely to have a Material Adverse Effect;
 
and
(b)
 
upon
 
the
 
reasonable
 
request
 
of
 
the
 
Agent,
 
keep
 
the
 
Agent
 
informed
 
as
 
to
 
any
 
notice
 
of
readiness of delivery of the Ship owned by it.
11.25
 
No assignment etc. of MOA
No Borrower
 
shall assign, novate,
 
transfer or
 
dispose of any
 
of its rights
 
or obligations
 
under
the MOA to which it is a party.
12
 
CORPORATE UNDERTAKINGS
 
12.1
 
General
Each
 
Borrower
 
also
 
undertakes
 
with
 
each
 
Creditor
 
Party
 
to
 
comply
 
with
 
the
 
following
provisions
 
of
 
this
 
Clause
 
(
Corporate
 
Undertakings
) at
 
all
 
times
 
during
 
the
 
Security
 
Period
except as the Agent may,
 
with the authorisation of the Majority Xxxxxxx, otherwise permit.
12.2
 
Maintenance of status
(a)
 
Each
 
Borrower
 
will
 
maintain
 
its
 
separate
 
corporate
 
existence
 
and
 
remain
 
in
 
good
 
standing
under the laws of the Xxxxxxxx
 
Islands and will, and shall
 
procure that any other Security Party
(as applicable) will, comply
 
in all respects with
 
the Republic of the
 
Xxxxxxxx Islands Economic
Substance Regulations 2018 (as amended from time to time).
12.3
 
Negative undertakings
No Borrower will:
(a)
 
carry on any
 
business other than the ownership,
 
chartering and operation of
 
the Ship owned
by that Xxxxxxxx; or
 
(b)
 
pay
 
any
 
dividend or
 
make
 
any
 
other form
 
of
 
distribution or
 
effect
 
any
 
form
 
of redemption,
purchase or return
 
of share capital
 
(the "
Distribution
") if an Event
 
of Default has
 
occurred at
any relevant
 
time which is continuing or
 
an Event of
 
Default will result
 
from the Distribution;
or
(c)
 
provide any form of credit or financial assistance to:
(i)
 
a person who
 
is directly
 
or indirectly
 
interested in that
 
Borrower's share or
 
loan capital;
or
(ii)
 
any
 
company
 
in
 
or
 
with
 
which
 
such
 
a
 
person
 
is
 
directly
 
or
 
indirectly
 
interested
 
or
connected,
or enter into any transaction with or
 
involving such a person or company on terms which are,
in any respect,
 
less favourable to
 
that Borrower than those
 
which it could obtain in
 
a bargain
made at arms' length; or
(d)
 
open or maintain any
 
account with any bank
 
or financial institution except
 
accounts with the
Agent and the Security Trustee for the purposes of the Finance Documents; or
(e)
 
issue, allot or
 
grant any
 
person a right
 
to any
 
shares in its
 
capital or repurchase
 
or reduce its
issued share capital; or
(f)
 
acquire
 
any
 
shares or
 
other securities
 
other than
 
US or
 
UK Treasury
 
bills and
 
certificates
 
of
deposit issued by major North American or European banks, or enter into any transaction in a
derivative other than the Designated Transactions; or
(g)
 
enter into
 
any form
 
of amalgamation, merger
 
or de-merger or
 
any form
 
of reconstruction or
reorganisation.
13
 
INSURANCE
 
13.1
 
General
Each
 
Borrower
 
also
 
undertakes
 
with
 
each
 
Creditor
 
Party
 
to
 
comply
 
with
 
the
 
following
provisions
 
of
 
this
 
Clause
 
(
Insurance
)
 
at
 
all
 
times
 
during
 
the
 
Security Period
 
except
 
as
 
the
Agent may,
 
with the authorisation of the Majority Xxxxxxx, otherwise permit.
13.2
 
Maintenance of obligatory insurances
Each Borrower shall
 
keep the Ship
 
owned by
 
it insured
 
at the
 
expense of
 
that Borrower against:
(a)
 
fire and usual marine risks (including hull and machinery and excess risks);
(b)
 
war risks (including terrorism, piracy and confiscation);
(c)
 
protection and indemnity risks (other than loss of hire or political risks); and
(d)
 
any
 
other risks
 
against which
 
the Security
 
Trustee
 
considers, having
 
regard
 
to practices
 
and
other
 
circumstances
 
prevailing
 
at
 
the
 
relevant
 
time, it
 
would
 
in
 
the
 
opinion of
 
the
 
Security
Trustee
 
be
 
reasonable
 
for
 
that
 
Borrower
 
to
 
insure
 
and
 
which
 
are
 
specified
 
by
 
the
 
Security
Trustee by notice to that Borrower.
13.3
 
Terms of obligatory insurances
Each Borrower shall effect such insurances:
(a)
 
in Dollars;
(b)
 
in
 
the
 
case
 
of
 
fire
 
and
 
usual
 
marine
 
risks
 
and
 
war
 
risks,
 
(including
 
hull
 
interest
 
and
 
freight
interest) in such amount as shall from time to time be approved by the Security
 
Trustee but in
any event in an
 
amount not less
 
than the greater of
 
(i) an amount
 
which when aggregated
 
with
the insured value of
 
the other Ships
 
then subject to
 
a Mortgage, 120
 
per cent. of
 
the aggregate
of the Loan and (ii) the Market Value of the Ship owned by it;
 
(c)
 
in the case of hull
 
and machinery policy at
 
an agreed insured value (excluding hull interest and
freight
 
interest)
 
in an
 
amount of
 
not less
 
than an
 
amount which
 
when aggregated
 
with the
agreed insured values under all the other hull and machinery policies for the other Ships then
subject
 
to
 
a
 
Mortgage
 
is
 
not
 
less
 
than
 
the
 
principal amount
 
of
 
the
 
Loan
Provided
 
that
 
the
Borrowers are in compliance with their obligations under paragraph
 
above at all times;
 
(d)
 
in the case of oil pollution liability risks, for an
 
aggregate amount equal to the highest level of
cover from time to
 
time available under basic protection
 
and indemnity club entry and in
 
the
international marine insurance market;
(e)
 
in relation to protection and indemnity risks in respect of the full tonnage of the Ship;
(f)
 
on approved terms; and
(g)
 
through approved brokers and with approved insurance companies and/or underwriters
 
or, in
the case of war risks and protection and indemnity risks, in approved war risks and protection
and indemnity risks associations.
13.4
 
Further protections for the Creditor Parties
In addition
 
to the
 
terms set
 
out in
 
Clause
 
(
Terms
 
of obligatory
 
insurances
), each
 
Borrower
shall procure that the obligatory insurances effected by it shall:
(a)
 
subject
 
always
 
to
 
paragraph
,
 
name
 
that
 
Borrower
 
as
 
the
 
sole
 
named
 
assured
 
unless
 
the
interest of every other named assured is limited:
(i)
 
in respect of any obligatory insurances for hull and machinery and war risks;
(A)
 
to
 
any provable
 
out-of-pocket
 
expenses that
 
it has
 
incurred and
 
which form
part of any recoverable claim on underwriters; and
 
(B)
 
to any third party
 
liability claims
 
where cover for such
 
claims is provided
 
by the
policy (and
 
then only
 
in respect
 
of
 
discharge of
 
any claims
 
made against
 
it);
and
 
(ii)
 
in
 
respect
 
of
 
any
 
obligatory
 
insurances
 
for
 
protection
 
and
 
indemnity
 
risks,
 
to
 
any
recoveries it
 
is entitled to
 
make by
 
way of
 
reimbursement following discharge
 
of any
third party liability claims made specifically against it
and every other
 
named assured has
 
undertaken in writing
 
to the Security
 
Trustee (in such form
as it
 
requires) that
 
any deductible
 
shall be
 
apportioned between
 
that Borrower and
 
every other
named assured in
 
proportion to the gross
 
claims made or
 
paid by each
 
of them and
 
that it shall
do
 
all things
 
necessary and
 
provide
 
all documents,
 
evidence and
 
information
 
to
 
enable the
Security Trustee to collect
 
or recover any
 
moneys which
 
at any time
 
become payable in
 
respect
of the obligatory insurances;
(b)
 
whenever the Security Trustee
 
requires, name (or be amended to name) the Security Trustee
as additional named assured
 
for its rights and
 
interests, warranted no operational interest and
with full waiver of rights of subrogation against
 
the Security Trustee, but without the Security
Trustee
 
thereby
 
being
 
liable
 
to
 
pay
 
(but
 
having
 
the
 
right
 
to
 
pay)
 
premiums,
 
calls
 
or
 
other
assessments in respect of such insurance;
(c)
 
name
 
the
 
Security
 
Trustee
 
as
 
loss
 
payee
 
with
 
such
 
directions
 
for
 
payment
 
as
 
the
 
Security
Trustee may
 
specify;
(d)
 
provide that
 
all payments
 
by or
 
on behalf
 
of the
 
insurers under
 
the obligatory
 
insurances to
the Security
 
Trustee
 
shall be
 
made without
 
set-off,
 
counterclaim
 
or deductions
 
or condition
whatsoever;
(e)
 
provide
 
that
 
such obligatory
 
insurances
 
shall
 
be primary
 
without
 
right
 
of
 
contribution
 
from
other insurances which
 
may be carried by
 
the Security
 
Trustee or any other Creditor Party;
 
and
(f)
 
provide that the Security Trustee may make
 
proof of loss if that Xxxxxxxx fails to do so.
13.5
 
Renewal of obligatory insurances
Each Borrower shall:
(a)
 
at least 21 days before the expiry of any obligatory insurance effected
 
by it:
(i)
 
notify the
 
Security Trustee
 
of the
 
brokers
 
(or other
 
insurers) and
 
any protection
 
and
indemnity or war
 
risks association through
 
or with whom
 
that Borrower
 
proposes to
renew that obligatory insurance and of the proposed terms of renewal; and
(ii)
 
obtain the Security Trustee's approval to the matters
 
referred to in paragraph
(b)
 
at least 14 days before the expiry of any obligatory insurance,
 
renew that obligatory insurance
in accordance with the Security Trustee's approval pursuant to paragraph
; and
(c)
 
procure
 
that
 
the
 
approved
 
brokers
 
and/or
 
the
 
war
 
risks
 
and
 
protection
 
and
 
indemnity
associations with which such a renewal is effected shall promptly
 
after the renewal notify the
Security Trustee in writing of the terms each conditions of the renewal.
13.6
 
Copies of policies; letters of undertaking
Each
 
Borrower
 
shall ensure
 
that all
 
approved
 
brokers
 
provide
 
the Security
 
Trustee
 
with pro
forma
 
copies of
 
all policies
 
relating
 
to the
 
obligatory
 
insurances
 
which they
 
are to
 
effect
 
or
xxxxx and of a letter
 
or letters of
 
undertaking in a form required
 
by the Security Trustee
 
and
including undertakings by the approved brokers that:
(a)
 
they will
 
have endorsed
 
on each
 
policy,
 
immediately upon
 
issue, a loss
 
payable clause
 
and a
notice of
 
assignment complying
 
with the
 
provisions
 
of
 
Clause
 
(
Further
 
protections for
 
the
Creditor Parties
);
 
(b)
 
they will
 
hold such
 
policies, and
 
the benefit
 
of such
 
insurances, to
 
the order
 
of the
 
Security
Trustee in accordance with the said loss payable clause;
 
(c)
 
they will advise
 
the Security Trustee
 
immediately of any
 
material change
 
to the terms
 
of the
obligatory insurances;
 
(d)
 
they will notify the Security Trustee,
 
not less than 14 days
 
before the expiry of
 
the obligatory
insurances, in the event
 
of their not having
 
received notice of
 
renewal instructions from
 
that
Borrower
 
or
 
its
 
agents
 
and,
 
in
 
the
 
event
 
of
 
their
 
receiving
 
instructions
 
to
 
renew,
 
they
 
will
promptly notify the Security Trustee of the terms of the instructions; and
(e)
 
they
 
will
 
not
 
set
 
off
 
against
 
any
 
sum
 
recoverable
 
in
 
respect
 
of
 
a
 
claim
 
relating
 
to
 
the
 
Ship
owned by
 
that Borrower
 
under such
 
obligatory
 
insurances any
 
premiums or
 
other amounts
due to them or any other person whether in respect of that Ship
 
or otherwise, they waive any
lien on
 
the policies,
 
or any
 
sums received
 
under them,
 
which they
 
might have
 
in respect
 
of
such
 
premiums
 
or
 
other
 
amounts,
 
and
 
they
 
will
 
not
 
cancel
 
such
 
obligatory
 
insurances
 
by
reason of
 
non-payment of
 
such premiums
 
or other
 
amounts, and will
 
arrange for
 
a separate
policy to
 
be issued in
 
respect of that
 
Ship forthwith upon
 
being so requested
 
by the Security
Trustee.
13.7
 
Copies of certificates of entry
Each Borrower shall ensure that any protection and
 
indemnity and/or war risks associations in
which the Ship owned by it is entered provides the Security Trustee with:
(a)
 
a certified copy of the certificate of entry for that Ship owned by it;
(b)
 
a letter or letters of undertaking in such form as may be required by the Security Trustee; and
(c)
 
a
 
certified
 
copy
 
of
 
each
 
certificate
 
of
 
financial
 
responsibility
 
for
 
pollution
 
by
 
oil
 
or
 
other
Environmentally
 
Sensitive
 
Material
 
issued
 
by
 
the
 
relevant
 
certifying
 
authority
 
in
 
relation
 
to
that Ship.
13.8
 
Deposit of original policies
Each Borrower shall ensure that all policies relating to obligatory
 
insurances effected by it are
deposited with the approved brokers through which the insurances are effected or renewed.
13.9
 
Payment of premiums
Each
 
Borrower
 
shall
 
punctually
 
pay
 
all
 
premiums
 
or
 
other
 
sums
 
payable
 
in
 
respect
 
of
 
the
obligatory insurances effected by it and produce all relevant receipts when so required by the
Security Trustee.
13.10
 
Guarantees
Each Borrower shall
 
ensure that any
 
guarantees required by a
 
protection and indemnity
 
or war
risks association are promptly issued and remain in full force and effect.
13.11
 
Restrictions on employment
No
 
Borrower
 
shall
 
employ
 
its
 
Ship,
 
nor
 
shall
 
permit
 
it
 
to
 
be
 
employed,
 
outside
 
the
 
cover
provided by any obligatory insurances.
13.12
 
Compliance with terms of insurances
No Borrower shall do nor
 
omit to do (nor permit
 
to be done or
 
not to be done)
 
any act or thing
which would or might
 
render any obligatory insurance invalid, void,
 
voidable or unenforceable
or render any
 
sum payable under
 
an obligatory insurance
 
repayable in
 
whole or in part;
 
and,
in particular:
(a)
 
each
 
Borrower
 
shall
 
take
 
all
 
necessary
 
action
 
and
 
comply
 
with
 
all
 
requirements
 
which may
from
 
time
 
to
 
time
 
be
 
applicable
 
to
 
the
 
obligatory
 
insurances,
 
and
 
(without
 
limiting
 
the
obligation
 
contained
 
in Clause
 
(
Copies of
 
policies; letters
 
of
 
undertaking
))
 
ensure
 
that
 
the
obligatory
 
insurances are
 
not
 
made
 
subject to
 
any
 
exclusions
 
or
 
qualifications to
 
which the
Security Trustee has not given its prior approval;
(b)
 
no Borrower
 
shall make
 
any changes
 
relating to
 
the classification
 
or classification
 
society or
manager or operator
 
of the Ship owned
 
by it approved
 
by the underwriters
 
of the obligatory
insurances;
(c)
 
each Borrower shall make
 
(and promptly supply copies
 
to the Agent of)
 
all quarterly or other
voyage declarations which may
 
be required by the protection and indemnity risks association
in which the Ship owned by
 
it is entered to
 
maintain cover for
 
trading to the United
 
States of
America and Exclusive
 
Economic Zone
 
(as defined in
 
the United States
 
Oil Pollution Act
 
1990
or any other applicable legislation); and
(d)
 
no Borrower shall employ the
 
Ship owned by it, nor
 
allow it to be employed,
 
otherwise than in
conformity with the terms and conditions of the obligatory insurances, without first obtaining
the
 
consent
 
of
 
the
 
insurers
 
and
 
complying
 
with
 
any
 
requirements
 
(as
 
to
 
extra
 
premium
 
or
otherwise) which the insurers specify.
13.13
 
Alteration to terms of insurances
(a)
 
No Borrower shall
 
make nor agree
 
to any
 
alteration to
 
the terms of
 
any obligatory
 
insurance
nor waive any right relating to any obligatory insurance.
 
(b)
 
Without limiting the
 
generality of the foregoing,
 
no Borrower shall
 
either make or agree
 
to any
alteration to
 
the terms of
 
any war
 
risks and allied
 
perils coverage
 
(including piracy coverage)
whereby trading
 
to conditional
 
(excluded) areas
 
not declared
 
on the
 
annual policy
 
would be
altered without the consent of the Agent.
13.14
 
Settlement of claims
No Borrower
 
shall settle,
 
compromise or
 
abandon any
 
claim under
 
any obligatory
 
insurance
for
 
Total
 
Loss
 
or
 
for
 
a
 
Major
 
Casualty,
 
and
 
shall
 
do
 
all
 
things
 
necessary
 
and
 
provide
 
all
documents, evidence and information to enable the Security Trustee to collect or recover any
moneys which at any time become payable in respect of the obligatory insurances.
13.15
 
Provision of copies of communications
Each
 
Borrower
 
shall provide
 
the Security
 
Trustee,
 
at the
 
time of
 
each such
 
communication,
copies of all written communications between a Borrower and:
(a)
 
the approved brokers;
 
(b)
 
the approved protection and indemnity and/or war risks associations; and
(c)
 
the approved insurance companies and/or underwriters, which relate directly or indirectly to:
(i)
 
that
 
Borrower's
 
obligations
 
relating
 
to
 
the
 
obligatory
 
insurances
 
including,
 
without
limitation, all requisite declarations and
 
payments of additional
 
premiums or calls;
 
and
 
(ii)
 
any credit arrangements
 
made between
 
that Borrower
 
and any
 
of the
 
persons referred
to in paragraphs
 
or
 
relating wholly or partly to the effecting or maintenance of the
obligatory insurances.
13.16
 
Provision of information
In addition, each Borrower shall promptly
 
provide the Security Trustee
 
(or any persons which
it
 
may
 
designate)
 
with
 
any
 
information
 
which
 
the Security
 
Trustee
 
(or
 
any
 
such designated
person) requests for the purpose of:
(a)
 
obtaining
 
or
 
preparing
 
any
 
report
 
from
 
an
 
independent
 
marine
 
insurance
 
broker
 
as
 
to
 
the
adequacy of the obligatory insurances effected or proposed to be effected; and/or
(b)
 
effecting,
 
maintaining
 
or
 
renewing
 
any
 
such
 
insurances
 
as
 
are
 
referred
 
to
 
in
 
Clause
(
Mortgagee's interest insurances
) below or dealing with
 
or considering any matters relating to
any such insurances,
and the Borrowers shall, forthwith upon demand, indemnify the
 
Security Trustee in respect of
all fees and
 
other expenses
 
incurred by or
 
for the account
 
of the Security
 
Trustee in connection
with any such report as is referred to in paragraph
13.17
 
Mortgagee's interest insurances
The
 
Security
 
Trustee
 
shall
 
be
 
entitled
 
from
 
time
 
to
 
time
 
to
 
effect,
 
maintain
 
and
 
renew
 
a
mortgagee's interest
 
marine insurance
 
policy in
 
such amounts,
 
on such
 
terms, through
 
such
insurers and generally in such manner as the Security Trustee may from time to time consider
appropriate
 
and
 
each
 
Borrower
 
shall
 
upon
 
demand
 
fully
 
indemnify
 
the
 
Creditor
 
Parties
 
in
respect of
 
all premiums
 
and other expenses
 
which are
 
incurred in
 
connection with or
 
with a
view to effecting, maintaining or renewing any such insurance or dealing with, or considering,
any matter arising out of any such insurance.
 
13.18
 
Review of insurance requirements
The Agent shall be entitled
 
to review the requirements
 
of this Clause
 
(
Insurance
) from time
to
 
time
 
in
 
order
 
to
 
take
 
account
 
of
 
any
 
changes
 
in
 
circumstances
 
after
 
the
 
date
 
of
 
this
Agreement
 
which
 
the
 
Agent
 
reasonably
 
considers
 
significant
 
and
 
capable
 
of
 
affecting
 
the
Borrowers,
 
the
 
Ships
 
and
 
their
 
Insurances
 
(including,
 
without
 
limitation,
 
changes
 
in
 
the
availability
 
or
 
the
 
cost
 
of
 
insurance
 
coverage
 
or
 
the
 
risks
 
to
 
which
 
each
 
Borrower
 
may
 
be
subject), and may
 
appoint insurance
 
consultants in
 
relation to
 
this review
 
at the cost
 
of that
Borrower.
13.19
 
Modification of insurance requirements
The Agent shall notify the Borrowers
 
of any proposed modification under Xxxxxx
 
(
Review of
insurance
 
requirements
)to
 
the
 
requirements
 
of
 
this
 
Clause
 
(
Insurance
)
 
which
 
the
 
Agent
reasonably considers appropriate in the
 
circumstances, and such modification
 
shall take effect
on and from the
 
date it is notified
 
in writing to the
 
relevant Borrower as an amendment
 
to this
Clause
 
(
Insurance
) and shall bind that Borrower accordingly.
13.20
 
Compliance with mortgagee's instructions
The Agent shall be entitled (without prejudice to or limitation of any other rights which
 
it may
have or acquire
 
under any Finance Document) to
 
require a Ship to
 
remain at any safe
 
port or
to proceed to and remain at any safe port designated by the Agent until the Borrower owning
that
 
Ship
 
implements
 
any
 
amendments
 
to
 
the
 
terms
 
of
 
the
 
obligatory
 
insurances
 
and
 
any
operational
 
changes required
 
as a
 
result of
 
a notice
 
served under
 
Clause
 
(
Modification of
insurance requirements
).
14
 
SHIP COVENANTS
 
14.1
 
General
Each
 
Borrower
 
also
 
undertakes
 
with
 
each
 
Creditor
 
Party
 
to
 
comply
 
with
 
the
 
following
provisions of this Clause
Ship covenants
) at all
 
times during the
 
Security Period except as the
Agent, with the authorisation of the Majority Lenders, may
 
otherwise permit (and in the case
of Clauses
 
(
Ship's name and registration
) and
 
(
Restrictions on chartering, appointment of
managers etc
.), such permission not to be unreasonably withheld).
14.2
 
Ship's name and registration
Each Borrower shall keep the Ship owned by it registered in its name under an Approved Flag;
shall not
 
do, omit
 
to
 
do or
 
allow to
 
be done
 
anything as
 
a result
 
of which
 
such registration
might be cancelled or imperilled; and shall not
 
change the name or port of registry of the Ship
owned by it.
14.3
 
Repair and classification
Each Borrower shall keep the
 
Ship owned by
 
it in a
 
good and safe condition
 
and state of repair:
(a)
 
consistent with first class ship ownership and management practice;
(b)
 
so as
 
to maintain
 
the highest
 
class free
 
of overdue
 
recommendations and
 
conditions with
 
a
classification society which is a member of IACS acceptable to the Agent; and
(c)
 
so as
 
to comply
 
with all
 
laws and
 
regulations applicable
 
to vessels
 
registered
 
at ports
 
in the
applicable Approved Flag State or to vessels trading to any jurisdiction to which that Ship may
trade from time to time, including but not limited to the ISM Code and the ISPS Code.
14.4
 
Classification society undertaking
Each
 
Borrower
 
shall
 
instruct
 
the
 
classification
 
society
 
referred
 
to
 
in
 
Clause
 
(
Repair
 
and
classification
):
(a)
 
to
 
send
 
to
 
the
 
Security
 
Trustee,
 
following
 
receipt
 
of
 
a
 
written
 
request
 
from
 
the
 
Security
Trustee,
 
certified true
 
copies of
 
all original
 
class records
 
held by
 
the classification
 
society in
relation to its Ship;
(b)
 
to allow the Security Trustee
 
(or its agents), at any time and from time to
 
time, to inspect the
original class
 
and related
 
records of
 
its Ship
 
at the
 
offices of
 
the classification
 
society and
 
to
take copies of them;
(c)
 
to notify the Security Trustee immediately in writing if the classification society:
(i)
 
receives
 
notification
 
from
 
that
 
Borrower
 
or
 
any
 
other
 
person
 
that
 
its
 
Ship's
classification society is to be changed; or
(ii)
 
becomes
 
aware
 
of
 
any
 
facts
 
or
 
matters
 
which
 
may
 
result
 
in
 
or
 
have
 
resulted
 
in
 
a
change, suspension,
 
discontinuance, withdrawal
 
or expiry
 
of that
 
Ship's class
 
under the
rules
 
or
 
terms
 
and
 
conditions
 
of
 
that
 
Borrower's
 
or
 
its
 
Ship's
 
membership
 
of
 
the
classification society; and
(d)
 
following receipt of a written request from the Security Trustee:
(i)
 
to
 
confirm
 
that
 
a
 
Borrower
 
is
 
not
 
in
 
default
 
of
 
any
 
of
 
its
 
contractual
 
obligations
 
or
liabilities to
 
the classification
 
society and,
 
without limiting
 
the foregoing,
 
that it
 
has
paid in full all fees or other charges due and payable to the classification society; or
(ii)
 
if
 
a
 
Borrower
 
is
 
in
 
default
 
of
 
any
 
of
 
its
 
contractual
 
obligations
 
or
 
liabilities
 
to
 
the
classification society,
 
to specify
 
to the
 
Security Trustee
 
in reasonable
 
detail the
 
facts
and circumstances of such default, the consequences of such
 
default, and any remedy
period agreed or allowed by the classification society.
14.5
 
Modification
No
 
Borrower
 
shall
 
make
 
any
 
modification
 
or
 
repairs
 
to,
 
or
 
replacement
 
of,
 
any
 
Ship
 
or
equipment
 
installed
 
on
 
it
 
which
 
would
 
or
 
might
 
materially
 
alter
 
the
 
structure,
 
type
 
or
performance characteristics of that Ship or materially reduce its value.
14.6
 
Removal of parts
No Borrower
 
shall remove
 
any material
 
part of
 
any Ship,
 
or any
 
item of
 
equipment installed
on, any Ship unless
 
the part or
 
item so removed is
 
forthwith replaced by a
 
suitable part or
 
item
which is
 
in the
 
same condition
 
as or
 
better condition
 
than the
 
part or
 
item removed,
 
is free
from any Security Interest or any right in favour of any person other than the Security Trustee
and becomes
 
on installation
 
on the
 
relevant Ship
 
the property
 
of the
 
relevant Borrower
 
and
subject to
 
the security
 
constituted by
 
the relevant
 
Mortgage
Provided that
 
a Borrower
 
may
install equipment owned by a third party if the
 
equipment can be removed without any risk of
damage to the Ship owned by it.
14.7
 
Surveys
Each
 
Borrower
 
shall submit
 
the Ship
 
owned by
 
it regularly
 
to
 
all periodical
 
or other
 
surveys
which may
 
be required
 
for classification
 
purposes and, if
 
so required
 
by the Security
 
Trustee
provide the Security Trustee, with copies of all survey reports.
14.8
 
Inspection
Each Borrower shall
 
permit the Security Trustee
 
(by surveyors or other
 
persons appointed by
it for that
 
purpose) to
 
board the
 
Ship owned
 
by it
 
at all
 
reasonable times
 
to inspect
 
its condition
or to
 
satisfy themselves
 
about proposed
 
or executed repairs
 
and shall
 
afford all proper
 
facilities
for such inspections.
14.9
 
Prevention of and release from arrest
Each Borrower shall promptly discharge:
(a)
 
all
 
liabilities
 
which
 
give
 
or
 
may
 
give
 
rise
 
to
 
maritime
 
or
 
possessory
 
liens
 
on
 
or
 
claims
enforceable against the Ship owned by it, the Earnings or the Insurances;
(b)
 
all taxes, dues
 
and other amounts charged in respect
 
of the Ship owned by it,
 
the Earnings or
the Insurances; and
(c)
 
all
 
other
 
outgoings
 
whatsoever
 
in
 
respect
 
of
 
the
 
Ship
 
owned
 
by
 
it,
 
the
 
Earnings
 
or
 
the
Insurances,
and, forthwith upon receiving
 
notice of the arrest
 
of the Ship owned
 
by it, or of
 
its detention
in exercise
 
or purported exercise
 
of any
 
lien or claim,
 
that Borrower
 
shall procure
 
its release
by providing bail or otherwise as the circumstances may require.
14.10
 
Compliance with laws etc.
Each Borrower shall:
(a)
 
comply,
 
or procure compliance with
 
the ISM Code, the ISPS
 
Code, all Environmental
 
Laws, all
Sanctions
 
and
 
all
 
other
 
laws
 
or
 
regulations
 
relating
 
to
 
the
 
Ship owned
 
by
 
it,
 
its
 
ownership,
operation and management or to the business of that Xxxxxxxx;
(b)
 
not employ the Ship owned by it nor allow its employment in any manner contrary to any law
or regulation
 
in any
 
relevant jurisdiction
 
including but
 
not limited
 
to the
 
ISM Code,
 
the ISPS
Code and all Sanctions;
 
and
(c)
 
in the event of
 
hostilities in any part of
 
the world (whether war is
 
declared or not), not cause
or permit the Ship owned
 
by it to
 
enter or trade
 
to any zone
 
which is declared a
 
war zone by
any
 
government
 
or
 
by
 
the
 
Ship's
 
war
 
risks
 
insurers
 
unless
 
the
 
prior
 
written
 
consent
 
of
 
the
Security Trustee
 
has been given
 
and that
 
Borrower has
 
(at its
 
expense) effected
 
any special,
additional or modified insurance cover which the Security Trustee may require.
14.11
 
Provision of information
Each
 
Borrower
 
shall
 
promptly
 
provide
 
the
 
Security
 
Trustee
 
with
 
any
 
information
 
which
 
it
requests regarding:
(a)
 
the Ship owned by it, its employment, position and engagements;
(b)
 
the Earnings and payments and amounts due to the master and crew of the Ship owned by it;
 
(c)
 
any expenses incurred, or likely
 
to be incurred, in
 
connection with the
 
operation, maintenance
or repair of the Ship owned by it and any payments made in respect of that Ship;
(d)
 
any towages and salvages; and
(e)
 
its compliance, the Approved Manager's
 
compliance and the compliance
 
of the Ship owned
 
by
it with the ISM Code, the ISPS Code and all Sanctions,
and, upon the Security Trustee's request, provide copies of any current charter relating to the
Ship
 
owned
 
by
 
it,
 
of
 
any
 
current
 
charter
 
guarantee
 
and
 
copies
 
of
 
the
 
Borrower's
 
or
 
the
Approved Manager's Document of Compliance.
14.12
 
Notification of certain events
Each Borrower
 
shall immediately
 
notify the
 
Security Trustee
 
by fax,
 
confirmed forthwith,
 
by
letter of:
(a)
 
any casualty which is or is likely to be or to become a Major Casualty;
(b)
 
any occurrence
 
as a result
 
of which the
 
Ship owned by
 
it has become
 
or is, by
 
the passing of
time or otherwise, likely to become a Total Loss;
(c)
 
any requirement
 
or recommendation
 
made by
 
any insurer
 
or classification
 
society or
 
by any
competent authority which is not immediately complied with;
(d)
 
any arrest or detention of the Ship owned by it, any exercise or purported exercise
 
of any lien
on that Ship or its Earnings or any requisition of that Ship for hire;
(e)
 
any intended dry docking of the Ship owned by it;
(f)
 
any Environmental Claim made
 
against that Borrower or in
 
connection with the
 
Ship owned by
it, or any Environmental Incident;
(g)
 
any claim for
 
breach of the ISM Code
 
or the ISPS Code being
 
made against the
 
Borrower,
 
the
Approved Manager or otherwise in connection with the Ship owned by it; or
(h)
 
any other matter, event or incident, actual or
 
threatened, the effect of which
 
will or could
 
lead
to the ISM Code or the ISPS Code not being complied with
and that Borrower
 
shall keep the Security Trustee
 
advised in writing on a regular
 
basis and in
such detail
 
as the
 
Security Trustee
 
shall require
 
of that
 
Xxxxxxxx's, the
 
Approved Manager's
or any other person's response to any of those events or matters.
14.13
 
Restrictions on chartering, appointment of managers etc.
No Borrower shall, in relation to the Ship owned by it:
(a)
 
let that Ship on demise charter for any period;
(b)
 
enter
 
into
 
any
 
time or
 
consecutive
 
voyage
 
charter
 
in
 
respect
 
of
 
that
 
Ship for
 
a term
 
which
exceeds, or which by virtue of any optional extensions may exceed, 18 months;
(c)
 
enter into any charter in relation to that Ship under which more than two
 
months' hire (or the
equivalent) is payable in advance;
(d)
 
charter that Ship
 
otherwise than on bona
 
fide arm's length terms
 
at the time when
 
that Ship
is fixed;
(e)
 
appoint a manager
 
of that Ship
 
other than the
 
Approved Manager or
 
agree to any
 
alteration
to the terms of the Approved Manager's appointment;
(f)
 
de activate or lay-up that Ship; or
(g)
 
put that Ship into the possession of any person for
 
the purpose of work being done upon it in
an amount exceeding or likely
 
to exceed $1,000,000 (or the equivalent in any
 
other currency)
unless that
 
person has
 
first given to
 
the Security
 
Trustee and in
 
terms satisfactory to
 
it a
 
written
undertaking not to exercise any lien
 
on that Ship or
 
its Earnings for the
 
cost of such work
 
or for
any other reason.
14.14
 
Notice of Mortgage
Each Borrower
 
shall keep the
 
relevant Mortgage
 
registered against
 
the Ship owned by
 
it as a
valid
 
first
 
priority
 
or
 
preferred
 
mortgage,
 
carry
 
on
 
board
 
that
 
Ship
 
a
 
certified
 
copy
 
of
 
the
relevant Mortgage and place and
 
maintain in a conspicuous place in the navigation
 
room and
the Master's cabin of that Ship a framed
 
printed notice stating that that
 
Ship is mortgaged by
that Borrower to the Security Trustee.
14.15
 
Sharing of Earnings
No Borrower shall:
(a)
 
enter into any agreement or arrangement for the sharing of any Earnings;
 
(b)
 
enter
 
into
 
any
 
agreement
 
or
 
arrangement
 
for
 
the postponement
 
of
 
any
 
date
 
on
 
which
 
any
Earnings are due; and
(c)
 
the reduction of the amount
 
of any Earnings or otherwise
 
for the release or adverse alteration
of any right of a Borrower to any Earnings.
 
14.16
 
ISPS Code
Each Borrower shall comply with the ISPS Code and in particular, without limitation, shall:
(a)
 
procure
 
that the
 
Ship owned
 
by that
 
Borrower and
 
the company
 
responsible for
 
that Ship's
compliance with the ISPS Code comply with the ISPS Code;
 
(b)
 
maintain for that Ship an ISSC; and
(c)
 
notify the
 
Agent immediately
 
in writing
 
of any
 
actual or
 
threatened withdrawal,
 
suspension,
cancellation or modification of the ISSC.
14.17
 
Charterparty Assignment
If
 
a
 
Borrower
 
enters
 
into
 
any
 
Charter
 
(subject
 
to
 
obtaining
 
the
 
consent
 
of
 
the
 
Agent
 
in
accordance
 
with
 
Clause
 
(
Restrictions
 
on
 
chartering,
 
appointment
 
of
 
managers
 
etc
.)),
 
that
Borrower
 
shall
 
at
 
the
 
request
 
of
 
the
 
Agent
 
execute
 
in
 
favour
 
of
 
the
 
Security
 
Trustee
 
(and
register,
 
if applicable) a Charterparty Assignment and shall:
(a)
 
serve notices of the Charterparty Assignment
 
on the Charterer and procure that the Charterer
acknowledges such notice in such form as the Agent may approve or require; and
 
(b)
 
deliver to the Agent such
 
other documents equivalent to those referred
 
to at paragraphs 3,
 
4
and 5 of
 
of
 
(
Conditions precedent documents
), as the Agent may require.
14.18
 
Poseidon Principles
Each
 
Borrower
 
shall, upon
 
the request
 
by a
 
Lender and
 
at
 
the cost
 
of the
 
Borrowers,
 
on or
before
 
31st
 
July
 
in
 
each
 
calendar
 
year,
 
supply
 
or
 
procure
 
the
 
supply
 
by
 
the
 
relevant
classification
 
society
 
to
 
the
 
Agent
 
of
 
all
 
information
 
necessary
 
in
 
order
 
for
 
such
 
Lender
 
to
comply
 
with
 
its
 
obligations
 
under
 
the
 
Poseidon
 
Principles
 
in
 
respect
 
of
 
the
 
preceding
 
year,
including, without
 
limitation, all
 
ship fuel
 
oil consumption
 
data required
 
to be
 
collected and
reported in accordance with Regulation 22A of Xxxxx XX and any Statement of Compliance, in
each case
 
relating
 
to
 
the Ship
 
owned by
 
it for
 
the preceding
 
calendar year
 
provided
 
always
that, for
 
the avoidance
 
of doubt,
 
such information
 
shall be
 
confidential information
 
but the
Borrower acknowledges
 
that, in
 
accordance with
 
the Poseidon
 
Principles, such
 
information will
form
 
part
 
of
 
the
 
information
 
published
 
regarding
 
the
 
relevant
 
Lender's
 
portfolio
 
climate
alignment
 
and
 
that
 
a
 
Lender
 
may
 
disclose
 
such
 
information:
 
(i)
 
either
 
to
 
any
 
classification
society
 
or
 
other
 
entity
 
which
 
a
 
Lender
 
has
 
engaged
 
to
 
make
 
the
 
calculations
 
necessary
 
to
enable that
 
Lender to
 
comply with
 
its reporting
 
obligations under the
 
Poseidon Principles
 
(such
calculations to be
 
made at the
 
cost of the relevant Lender)
 
or (ii) as
 
otherwise permitted under
the terms of this Agreement.
14.19
 
Inventory of Hazardous Material
Each
 
Borrower
 
shall
 
procure
 
that,
 
on
 
the
 
date
 
falling
 
18
 
months
 
after
 
the
 
date
 
of
 
this
Agreement,
 
its
 
Ship
 
has
 
obtained
 
an
 
Inventory
 
of
 
Hazardous
 
Material,
 
which
 
shall
 
be
maintained until the end of the Security Period.
 
14.20
 
Sustainable and socially responsible dismantling of ships
(a)
 
Each Borrower
 
shall (and
 
shall procure
 
that each
 
other member
 
of the
 
Group shall)
 
procure
that for the duration of the Security Period:
(b)
 
the
 
Ship
 
owned
 
by
 
it
 
or
 
any
 
other
 
Fleet
 
Vessel
 
shall
 
be
 
recycled
 
at
 
a
 
recycling
 
yard
 
which
conducts
 
its
 
recycling
 
business
 
in
 
a
 
socially
 
and
 
environmentally
 
responsible
 
manner,
 
in
accordance with the provisions of the Hong Kong Convention (in the event
 
that the Approved
Flag State
 
is not
 
an EEA
 
Member Country)
 
or the
 
EU Ship
 
Recycling Regulation
 
(in the
 
event
that the Approved Flag State is an EEA Member Country); or
(c)
 
where the
 
Ship owned
 
by it
 
or any
 
other Fleet
 
Vessel is
 
sold to
 
an intermediary (whether
 
or
not
 
with
 
the
 
intention
 
of
 
being
 
recycled),
 
it
 
shall
 
provide
 
the
 
intermediary
 
with
 
any
 
ship-
relevant
 
information in
 
its possession which
 
it considers
 
necessary for
 
the development
 
of a
ship recycling plan in accordance with the EU Ship Recycling Regulation.
14.21
 
Sanctions provisions
 
Without limiting Clause
 
(
Compliance with laws etc.
), each Borrower shall procure:
(a)
 
each Borrower shall, and shall procure that the Ship owned by
 
it and each Security Party shall,
and,
 
in
 
respect
 
of
 
any
 
charterer,
 
shall
 
use
 
all
 
reasonable
 
endeavours
 
to
 
procure
 
that
 
the
Charterer
 
and any
 
other charterer
 
in respect
 
of its
 
Ship shall,
 
comply in
 
all respects
 
with all
laws
 
to which
 
it may
 
be subject,
 
including, without
 
limitation,
 
all national
 
and international
laws,
 
derivatives,
 
regulations,
 
decrees,
 
rulings
 
and
 
such
 
analogous
 
rules,
 
including, but
 
not
limited to, rules relating to Sanctions.
(b)
 
Each Borrower undertakes to make the
 
Xxxxxxxxx and all
 
other charterers and operators of
 
the
Ship owned by
 
it aware of
 
the requirements of
 
this Clause and Clause
 
(
Sanctions
) and shall
procure that they act in accordance with these requirements.
14.22
 
Change of Approved Manager
(a)
 
Each Borrower
 
may,
 
at its sole
 
discretion, at any
 
time during the
 
Security Period, change
 
the
Approved
 
Manager
 
of
 
its
 
Ship
 
from
 
Xxxxx
 
Shipping
 
Services
 
SA
 
to
 
Xxxxx
 
Xxxxxxxxxx
Management Limited,
provided that
 
the Borrowe
 
rs
 
shall give
 
the Agent
 
five
 
Business'
 
Days
prior written notice and shall provide the Agent no later than the date of the change with:
(b)
 
documents of
 
the kind
 
specified in
 
paragraphs
,
,
, and
 
of
 
of
 
(
Condition precedent
documents
) in respect of Xxxxx Xxxxxxxxxx Management Limited;
(c)
 
the documents referred to in paragraph
 
of
 
of
 
(
Condition precedent documents
); and
(d)
 
any other documents that the Agent may reasonably require.
15
 
SECURITY COVER
 
15.1
 
Minimum required security cover
Clause
 
(
Provision of additional
 
security; prepayment
) applies if,
 
at any
 
relevant time
 
during
the Security Period, the Agent notifies the Borrowers that:
(a)
 
the aggregate of the Market Value of the Ships then subject to a Mortgage;
 
plus
(b)
 
the
 
net
 
realisable
 
value
 
of
 
any
 
additional
 
security
 
previously
 
provided
 
under
 
this
 
Clause
(
Security cover
),
is below 125 per cent.
 
of the Loan.
15.2
 
Provision of additional security; prepayment
If
 
the
 
Agent
 
serves
 
a
 
notice
 
on
 
the
 
Borrowers
 
under
 
Clause
 
(
Minimum
 
required
 
security
cover
), the Borrowers shall prepay such part at least of the
 
Loan as will eliminate the shortfall
on or before
 
the date
 
falling one month
 
after the date
 
on which the
 
Agent's notice is
 
served
under Clause
 
(
Minimum required security
 
cover
) (the "
Prepayment Date
") unless at
 
least 1
Business Day
 
before
 
the Prepayment
 
Date
 
the Borrowers
 
have
 
provided
 
additional security
which, in the
 
opinion of the
 
Majority Lenders, has
 
a net realisable
 
value at
 
least equal to
 
the
shortfall
 
and
 
is
 
documented
 
in
 
such
 
terms
 
as
 
the
 
Agent
 
may,
 
with
 
the
 
authorisation of
 
the
Majority Lenders, approve or require.
 
15.3
 
Valuation of Ships
The Market
 
Value of
 
a Ship (or any
 
other Fleet Vessel)
 
at any date
 
during the Security Period
is that shown by a valuation to be prepared:
(a)
 
as at a date not more than 14 days previously;
(b)
 
an Approved Broker (selected by the Borrowers and appointed by the Agent);
(c)
 
with or without physical inspection of the Ship (as the Agent may require);
(d)
 
on the basis of a sale for prompt delivery for cash on normal arm's length commercial
terms as
 
between a
 
willing seller
 
and a
 
willing buyer,
 
free of
 
any existing
 
charter or
other contract of employment; and
(e)
 
after
 
deducting the
 
estimated
 
amount of
 
the usual
 
and reasonable
 
expenses which
would be incurred in connection with the sale,
Provided that
 
if the Agent reasonably determines that the
 
Market Value of the Ship shown by
a valuation prepared in accordance with this Clause
 
(
Valuation of Ships
) does not accurately
reflect the
 
value of that
 
Ship, it shall
 
have the
 
right to appoint
 
(at the Borrowers
 
'
 
expense) a
second
 
Approved
 
Broker
 
to
 
provide
 
a
 
valuation
 
of
 
that
 
Ship
 
addressed
 
to
 
the
 
Agent
 
and
prepared in
 
accordance with the
 
terms of this
 
Agreement and the
 
Market Value
 
of that
 
Ship
shall be the arithmetic average of the two valuations.
15.4
 
Value of additional security
The net realisable value of any additional security which is provided under Clause
 
(
Provision
of additional security; prepayment
) shall be determined as follows:
(a)
 
if it consists
 
of a Security
 
Interest over
 
a vessel shall
 
be that shown
 
by a valuation
 
complying
with the requirements of Clause
 
(
Valuation of Ships
); and
(b)
 
if it consists of cash, the US Dollar amount thereof.
15.5
 
Valuations binding
Any valuation
 
under Clauses
 
(
Provision of
 
additional security; prepayment
),
 
(
Valuation of
Ships
)
 
or
 
(
Value
 
of
 
additional
 
security
)
 
shall
 
be
 
binding
 
and
 
conclusive
 
as
 
regards
 
the
Borrowers,
 
as
 
shall
 
be
 
any
 
valuation
 
which
 
the
 
Majority
 
Lenders
 
make
 
of
 
any
 
additional
security which does not consist of or include a Security Interest.
15.6
 
Provision of information
The Borrowers shall
 
promptly provide the
 
Agent and
 
the Approved
 
Broker acting under
 
Clauses
 
(
Valuation of Ships
) or
 
(
Value of additional security
) with any information which the Agent
or the Approved
 
Broker may
 
request for the
 
purposes of the valuation;
 
and, if the Borrowers
fail to provide the information
 
by the date specified
 
in the request,
 
the valuation may be
 
made
on
 
any
 
basis
 
and
 
assumptions
 
which
 
the
 
Approved
 
Broker
 
or
 
the
 
Majority
 
Lenders
 
(or
 
the
expert appointed by them) consider prudent.
15.7
 
Payment of valuation expenses
Without
 
prejudice
 
to
 
the generality
 
of
 
the
 
Borrowers'
 
obligations
 
under Clauses
 
(
Costs
 
of
negotiation,
 
preparation etc
.),
 
(
Costs
 
of
 
variations, amendments,
 
enforcement
 
etc
.)
 
and
(
Miscellaneous indemnities
), the Borrowers
 
shall, on
 
demand, pay the
 
Agent the
 
amount of
 
the
fees and
 
expenses of
 
the Approved
 
Broker
 
instructed by
 
the Agent
 
under this Clause
 
and all
legal and other expenses incurred by any Creditor Party in connection with any matter
 
arising
out of this
 
Clause (provided that
 
no more than
 
one valuation per
 
Ship subject to
 
a Mortgage
per year and, if required by
 
the Agent pursuant to Clause
 
(
Valuation of Ships
), one additional
valuation
 
per such
 
Ship per
 
year
 
shall
 
be payable
 
by
 
the
 
Borrowers,
 
save
 
for
 
if an
 
Event
 
of
Default has occurred which is continuing in which case the Borrowers
 
shall be liable to pay for
all valuations that take place
 
during the period
 
such Event of Default is
 
continuing) and all
 
legal
and other expenses
 
incurred by any
 
Creditor Party
 
in connection with
 
any matter
 
arising out
of this Clause.
15.8
 
Application of prepayment
Clause
Application of
 
partial prepayment
) shall
 
apply in
 
relation to any
 
prepayment pursuant
to Clause
 
(
Security cover
).
16
 
PAYMENTS
 
AND CALCULATIONS
 
16.1
 
Currency and method of payments
All payments to be
 
made by the Lenders or by
 
any Borrower under a
 
Finance Document shall
be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
(a)
 
by not later than 11.00 a.m. (New York City time) on the due date;
(b)
 
in same
 
day
 
Dollar funds
 
settled
 
through the
 
New York
 
Clearing House
 
Interbank Payments
System (or
 
in such other
 
Dollar funds and/or
 
settled in such
 
other manner as
 
the Agent shall
specify as being customary at
 
the time for the
 
settlement of international transactions
 
of the
type contemplated by this Agreement);
 
(c)
 
in the case
 
of an amount
 
payable by
 
a Lender to
 
the Agent or
 
by a Borrower
 
to the Agent
 
or
any Lender,
 
to such account as
 
the Agent may from
 
time to time notify to
 
the Borrowers and
the other Creditor Parties; and
 
(d)
 
in the case of an amount payable to the Security Trustee, to such account as it may from time
to time notify to the Borrowers and the other Creditor Parties.
16.2
 
Payment on non-Business Day
If any payment by any Borrower under a Finance Document would otherwise
 
fall due on a day
which is not a Business Day:
(a)
 
the due date shall be extended to the next succeeding Business Day; or
(b)
 
if the
 
next
 
succeeding Business
 
Day
 
falls
 
in the
 
next calendar
 
Month,
 
the due
 
date
 
shall
 
be
brought forward to the immediately preceding Business Day,
and interest
 
shall be payable
 
during any extension
 
under paragraph
 
at the
 
rate payable
 
on
the original due date.
16.3
 
Basis for calculation of periodic payments
All interest and commitment fee and any other payments under any Finance Document which
are of an annual or periodic nature shall accrue
 
from day to day and shall be calculated on the
basis of the actual number of days elapsed and a 360 day year.
16.4
 
Distribution of payments to Creditor Parties
Subject
 
to
 
Clauses
 
(
Permitted
 
deductions
 
by
 
Agent
),
 
(
Agent
 
only
 
obliged
 
to
 
pay
 
when
monies received
) and
 
(
Refund to Agent of monies not received
):
(a)
 
any amount
 
received by
 
the Agent
 
under a
 
Finance Document for
 
distribution or remittance
to a Lender, the Swap Bank
 
or the Security
 
Trustee shall be made
 
available by the
 
Agent to that
Lender,
 
the Swap
 
Bank or,
 
as the
 
case may
 
be, the
 
Security Trustee
 
by payment,
 
with funds
having the same value as the funds received, to such account as the
 
Lender, the Swap Bank or
the Security
 
Trustee may have notified to
 
the Agent not
 
less than
 
five Business
 
Days previously;
and
(b)
 
amounts
 
to
 
be
 
applied
 
in
 
satisfying
 
amounts
 
of
 
a
 
particular
 
category
 
which
 
are
 
due
 
to
 
the
Lenders and/or the Swap Bank generally
 
shall be distributed by the Agent to each Lender and
the Swap Bank pro rata to the amount in that category which is due to it.
16.5
 
Permitted deductions by Agent
Notwithstanding any
 
other provision
 
of this
 
Agreement or
 
any other
 
Finance Document, the
Agent
 
may,
 
before
 
making
 
an
 
amount
 
available
 
to
 
a
 
Lender
 
or
 
the
 
Swap
 
Bank, deduct
 
and
withhold from
 
that amount
 
any
 
sum which
 
is then
 
due and
 
payable
 
to
 
the Agent
 
from
 
that
Lender or
 
the Swap
 
Bank under
 
any Finance
 
Document or
 
any sum
 
which the
 
Agent
 
is then
entitled
 
under
 
any
 
Finance
 
Document
 
to
 
require
 
that
 
Lender
 
or
 
the
 
Swap
 
Bank
 
to
 
pay
 
on
demand.
16.6
 
Agent only obliged to pay when monies received
Notwithstanding any
 
other provision
 
of this
 
Agreement or
 
any other
 
Finance Document, the
Agent shall not be obliged to make available to any Borrower or
 
any Lender or the Swap Bank
any sum which
 
the Agent
 
is expecting
 
to receive for
 
remittance or distribution
 
to that
 
Borrower
or that
 
Lender or
 
the Swap
 
Bank until
 
the Agent
 
has satisfied
 
itself that
 
it has
 
received that
sum.
16.7
 
Refund to Agent of monies not received
If and
 
to the
 
extent
 
that the
 
Agent makes
 
available a
 
sum to
 
a Borrower
 
or a
 
Lender or
 
the
Swap Bank, without first having
 
received that sum, that Xxxxxxxx
 
or (as the case may be) the
Lender or the Swap Bank concerned shall, on demand:
(a)
 
refund the sum in full to the Agent; and
 
(b)
 
pay to the Agent the
 
amount (as certified
 
by the Agent) which
 
will indemnify the
 
Agent against
any funding or
 
other loss, liability or
 
expense incurred by
 
the Agent as
 
a result of making
 
the
sum available before receiving it.
 
16.8
 
Agent may assume receipt
Clause
 
(
Refund to
 
Agent of monies
 
not received
) shall not
 
affect any
 
claim which the
 
Agent
has under the law
 
of restitution, and
 
applies irrespective of whether
 
the Agent had any
 
form
of notice that it had not received the sum which it made available.
16.9
 
Creditor Party accounts
Each Creditor Party shall maintain
 
accounts showing the
 
amounts owing to it
 
by the Borrowers
and each
 
Security Party
 
under the
 
Finance Documents
 
and all
 
payments in
 
respect of
 
those
amounts made by the Borrowers and any Security Party.
16.10
 
Agent's memorandum account
The
 
Agent
 
shall
 
maintain
 
a
 
memorandum
 
account
 
showing
 
the
 
amounts
 
advanced
 
by
 
the
Lenders and all other sums
 
owing to the Agent, the Security
 
Trustee and each Lender from the
Borrowers and each Security Party under
 
the Finance Documents and all payments in respect
of those amounts made by the Borrowers and any Security Party.
16.11
 
Accounts prima facie evidence
If
 
any
 
accounts
 
maintained
 
under
 
Clauses
 
(
Creditor
 
Party
 
accounts
)
 
and
 
(
Agent's
memorandum account
) show
 
an amount
 
to be
 
owing by
 
a Borrower
 
or a
 
Security Party
 
to a
Creditor Party,
 
those accounts shall be prima facie evidence that that amount is owing to that
Creditor Party.
17
 
APPLICATION OF RECEIPTS
 
17.1
 
Normal order of application
Except
 
as
 
any
 
Finance
 
Document
 
may
 
otherwise
 
provide,
 
any
 
sums
 
which
 
are
 
received
 
or
recovered by any Creditor Party under or by virtue of any Finance Document shall be applied:
(a)
 
FIRST:
 
in
 
or
 
towards
 
satisfaction
 
of
 
any
 
amounts
 
then
 
due
 
and
 
payable
 
under
 
the
 
Finance
Documents in the following order and proportions:
(i)
 
first,
 
in or
 
towards
 
satisfaction
 
pro
 
rata
 
of all
 
amounts then
 
due and
 
payable
 
to the
Creditor Parties
 
under the Finance Documents
 
other than those amounts
 
referred to
at paragraphs
 
and
 
(including, but without
 
limitation, all
 
amounts payable
 
by any
Borrower under Clauses
 
(
Fees and expenses
),
 
(
Indemnities
) and
 
(
No set-off or Tax
Deduction
)
 
of
 
this
 
Agreement
 
or
 
by
 
any
 
Borrower
 
or
 
any
 
Security
 
Party
 
under
 
any
corresponding or similar provision in any other Finance Document);
(ii)
 
secondly,
 
in
 
or
 
towards
 
satisfaction
 
pro
 
rata
 
of
 
any
 
and
 
all
 
amounts
 
of
 
interest
 
or
default interest payable to the Creditor Parties
 
under the Finance
 
Documents (and, for
this purpose, the
 
expression "
interest
" shall include
 
any net amount which
 
a Borrower
shall
 
have
 
become
 
liable
 
to
 
pay
 
or
 
deliver
 
under
 
section
 
2(e)
 
(
Obligations
)
 
of
 
the
Master Agreement but shall have failed to pay or deliver to the Swap Bank at the
 
time
of application or distribution under this Clause
 
(
Application of receipts
)); and
(iii)
 
thirdly,
 
in or towards
 
satisfaction pro
 
rata of
 
the Loan and the
 
Swap Exposure (in
 
the
case of the latter,
 
calculated as at
 
the actual Early Termination
 
Date applying to each
particular
 
Designated
 
Transaction,
 
or
 
if
 
no
 
such
 
Early
 
Termination
 
Date
 
shall
 
have
occurred, calculated as
 
if an
 
Early Termination Date occurred
 
on the
 
date of
 
application
or distribution hereunder);
(b)
 
SECONDLY:
 
in retention
 
of an amount
 
equal to
 
any amount
 
not then due
 
and payable
 
under
any Finance Document
 
but which the Agent,
 
by notice to
 
the Borrowers,
 
the Security Parties
and the other Creditor Parties, states in
 
its opinion will
 
either or may become due
 
and payable
in the future and,
 
upon those amounts becoming due and
 
payable, in or
 
towards satisfaction
of them in accordance with the provisions of Clause
 
(
Normal order of application
); and
(c)
 
THIRDLY:
 
any surplus
 
shall be
 
paid to
 
the Borrowers
 
or to
 
any other
 
person appearing
 
to be
entitled to it.
17.2
 
Variation of order of application
The Agent may,
 
with the authorisation of the
 
Majority Lenders and the
 
Swap Bank, by notice
to
 
the Borrowers,
 
the Security
 
Parties
 
and the
 
other Creditor
 
Parties
 
provide
 
for
 
a different
manner of application from
 
that set out in
 
Clause
 
(
Application of receipts
) either as regards
a specified sum or sums or as regards sums in a specified category or categories.
17.3
 
Notice of variation of order of application
The
 
Agent
 
may
 
give
 
notices under
 
Clause
 
(
Variation
 
of
 
order of
 
application
)
 
from
 
time to
time; and
 
such a
 
notice may
 
be stated
 
to apply
 
not only
 
to sums
 
which may
 
be received
 
or
recovered in the future, but also to any sum which has been received or recovered on or after
the third Business Day before the date on which the notice is served.
 
17.4
 
Appropriation rights overridden
This Clause
 
(
Application of
 
receipts
) and
 
any
 
notice which
 
the Agent
 
gives under
 
Clause
(
Variation of order of application
) shall override any right of appropriation possessed, and any
appropriation made, by any Borrower or any Security Party.
18
 
APPLICATION OF EARNINGS
18.1
 
Payment of Earnings
 
Each
 
Borrower undertakes
 
with each
 
Creditor Party
 
to ensure
 
that, throughout
 
the Security
Period (and subject only to the provisions of the General Assignments) all Earnings of the Ship
owned by it (including
 
but not limited to
 
any sale and/or
 
insurance proceeds) are
 
paid to the
Earnings Account for that Ship.
18.2
 
Location of accounts
Each Borrower shall promptly:
(a)
 
comply
 
with
 
any
 
requirement
 
of
 
the
 
Agent
 
as
 
to
 
the
 
location
 
or
 
re
 
location
 
of
 
its
 
Earnings
Account; and
(b)
 
execute
 
any
 
documents
 
which
 
the
 
Agent
 
specifies
 
to
 
create
 
or
 
maintain
 
in
 
favour
 
of
 
the
Security Trustee a Security Interest over (and/or rights of set-off,
 
consolidation or other rights
in relation to) its Earnings Account.
18.3
 
Debits for expenses etc.
The Agent shall be entitled (but not
 
obliged) from time to time to
 
debit any Earnings Account
without prior notice in order to discharge any amount due and payable under Clause
 
or
 
to
a Creditor Party or
 
payment of which
 
any Creditor Party has
 
become entitled to
 
demand under
Clause
 
(
Fees and expenses
) or
 
(
Indemnities
).
18.4
 
Borrowers'
 
obligations unaffected
The provisions of this Clause
 
(
Application of Earnings
) do not affect:
(a)
 
the liability of the Borrowers to make payments of principal and interest on the due dates; or
(b)
 
any
 
other
 
liability
 
or
 
obligation
 
of
 
the
 
Borrowers
 
or
 
any
 
Security
 
Party
 
under
 
any
 
Finance
Document.
 
18.5
 
Earnings Accounts balances
Subject to the
 
other terms of
 
this Agreement (including, without
 
limitation, the terms
 
of this
Clause
Application of
 
Earnings
)), the
 
monies on
 
the Earnings
 
Account shall
 
be freely
 
available
to
 
the
 
Borrowers
 
to
 
be
 
used
 
in
 
accordance
 
with
 
and
 
in
 
compliance
 
with
 
the
 
terms
 
and
conditions
 
of
 
this
 
Agreement
 
subject
 
to
 
no
 
Event
 
of
 
Default
 
having
 
occurred
 
which
 
is
continuing and the Agent
 
having given notice to
 
the Borrowers that
 
such monies shall not be
freely available as a result of such Event of Default.
19
 
EVENTS OF DEFAULT
 
19.1
 
Events of Default
An Event of Default occurs if:
(a)
 
any Borrower or any Security
 
Party fails to pay when
 
due or (if
 
so payable) on demand
 
any sum
payable under
 
a Finance Document
 
or under any
 
document relating to
 
a Finance Document;
or
(b)
 
any
 
breach
 
occurs
 
of
 
Clauses
 
(
Waiver
 
of
 
conditions
 
precedent
),
 
(
No
 
immunity
),
(
Sanctions
),
 
(
Title;
 
negative
 
pledge
),
 
(
No
 
disposal of
 
assets
),
 
(
Consents
),
 
(
Know
 
your
customer
), 11.20 (
Xxxxxxx and anti-corruption
 
laws
),
 
(
Sanctions
), 11.22 (
Use of proceeds
),
(
Maintenance of status)
,
 
(
Negative undertakings
),
 
(
Maintenance of obligatory insurances
),
 
(
Terms
 
of
 
obligatory
 
insurances
),
 
(
Minimum
 
required
 
security
 
cover
),
 
(
Provision
 
of
additional security; prepayment
) and 12.4 (
Compliance Check)
 
of the Corporate Guarantee; or
(c)
 
any
 
breach
 
by
 
any
 
Borrower
 
or
 
any
 
Security
 
Party
 
occurs
 
of
 
any
 
provision
 
of
 
a
 
Finance
Document (other
 
than a
 
breach covered
 
by paragraphs
 
or
) which,
 
in the
 
opinion of
 
the
Majority Lenders, is
 
capable of remedy, and
 
such default continues
 
un-remedied ten days
 
after
written notice from the Agent requesting action to remedy the same; or
(d)
 
(subject to any applicable grace period specified in the Finance
 
Document) any breach by any
Borrower or
 
any Security Party
 
occurs of
 
any provision
 
of a
 
Finance Document
 
(other than
 
a
breach falling within paragraphs
,
 
or
); or
(e)
 
any
 
representation,
 
warranty
 
or
 
statement
 
made
 
or
 
repeated
 
by,
 
or
 
by
 
an
 
officer
 
of,
 
the
Borrower
 
or a
 
Security Party
 
in a
 
Finance Document
 
or
 
in a
 
Drawdown
 
Notice or
 
any other
notice or document relating to a Finance Document is materially untrue
 
or misleading when it
is made or repeated; or
(f)
 
any of
 
the following occurs
 
in relation to
 
any Financial Indebtedness
 
of a Relevant
 
Person (in
the case of all Relevant Persons (taken as a
 
whole) exceeding in aggregate $10,000,000 (or
 
the
equivalent
 
in
 
any
 
other
 
currency)
 
at
 
any
 
relevant
 
time
Provided
 
that
 
in
 
the
 
case
 
of
 
each
Borrower,
 
individually,
 
any Financial
 
Indebtedness exceeding
 
$500,000 (or
 
the equivalent
 
in
any other currency)):
(i)
 
any Financial Indebtedness of a Relevant Person is not paid when due; or
(ii)
 
any Financial Indebtedness of a Relevant Person becomes due and payable or capable
of being declared due
 
and payable prior to
 
its stated maturity
 
date as a consequence
of any event of default; or
(iii)
 
a lease, hire
 
purchase agreement or
 
charter creating any
 
Financial Indebtedness of
 
a
Relevant
 
Person
 
is
 
terminated
 
by
 
the lessor
 
or
 
owner or
 
becomes capable
 
of
 
being
terminated as a consequence of any termination event; or
(iv)
 
any
 
overdraft,
 
loan,
 
note
 
issuance,
 
acceptance
 
credit,
 
letter
 
of
 
credit,
 
guarantee,
foreign
 
exchange
 
or
 
other
 
facility,
 
or
 
any
 
swap
 
or
 
other
 
derivative
 
contract
 
or
transaction, relating
 
to any
 
Financial Indebtedness of
 
a Relevant
 
Person ceases
 
to be
available or becomes
 
capable of being terminated
 
as a result
 
of any event
 
of default,
or cash cover
 
is required, or
 
becomes capable of
 
being required, in
 
respect of such
 
a
facility as a result of any event of default; or
(v)
 
any
 
Security
 
Interest
 
securing
 
any
 
Financial
 
Indebtedness
 
of
 
a
 
Relevant
 
Person
becomes enforceable; or
(g)
 
any of the following occurs in relation to a Relevant Person:
(i)
 
a Relevant
 
Person becomes, in
 
the opinion of
 
the Majority Lenders,
 
unable to pay
 
its
debts as they fall due; or
(ii)
 
any
 
assets
 
of
 
a
 
Relevant
 
Person
 
are
 
subject
 
to
 
any
 
form
 
of
 
execution,
 
attachment,
arrest,
 
sequestration
 
or
 
distress
 
in
 
respect
 
of
 
a
 
sum
 
of,
 
or
 
sums
 
exceeding,
 
in
aggregate, in
 
the case of
 
all Relevant
 
Persons (taken
 
as a whole)
 
$10,000,000 (or the
equivalent
 
in any
 
other currency)
 
at any
 
relevant
 
time
 
Provided that
 
in the
 
case of
each Borrower, individually,
 
any sum of, or sums exceeding, in aggregate $500,000 (or
the equivalent in any other currency);
(iii)
 
any administrative or other receiver is appointed over any asset of a Relevant
 
Person;
or
(iv)
 
an
 
administrator
 
is
 
appointed
 
(whether
 
by
 
the
 
court
 
or
 
otherwise)
 
in
 
respect
 
of
 
a
Relevant Person; or
(v)
 
any
 
formal
 
declaration
 
of
 
bankruptcy
 
or
 
any
 
formal
 
statement
 
to
 
the
 
effect
 
that
 
a
Relevant Person is insolvent
 
or likely to
 
become insolvent is
 
made by
 
a Relevant Person
or by the directors
 
of a Relevant Person
 
or,
 
in any proceedings, by
 
a lawyer acting for
a Relevant Person; or
 
(vi)
 
a provisional
 
liquidator is
 
appointed in
 
respect of
 
a Relevant Person,
 
a winding
 
up order
is
 
made
 
in
 
relation
 
to
 
a
 
Relevant
 
Person
 
or
 
a
 
winding
 
up
 
resolution
 
is
 
passed
 
by
 
a
Relevant Person; or
 
(vii)
 
a
 
resolution
 
is
 
passed,
 
an
 
administration
 
notice
 
is
 
given
 
or
 
filed,
 
an
 
application
 
or
petition to a
 
court is made or
 
presented or any
 
other step is
 
taken by (aa)
 
a Relevant
Person, (bb)
 
the members or
 
directors of
 
a Relevant
 
Person, (cc)
 
a holder of
 
Security
Interests
 
which
 
together
 
relate
 
to
 
all or
 
substantially
 
all
 
of
 
the
 
assets of
 
a
 
Relevant
Person, or (dd) a government minister
 
or public or regulatory authority of a Pertinent
Jurisdiction for or with a view to the winding up of that or another Relevant Person or
the
 
appointment
 
of
 
a
 
provisional
 
liquidator
 
or
 
administrator
 
in
 
respect
 
of
 
that
 
or
another Relevant
 
Person,
 
or that
 
or another
 
Relevant
 
Person
 
ceasing or
 
suspending
business operations or payments to creditors, save that this paragraph does not apply
to
 
a
 
fully
 
solvent
 
winding
 
up
 
of
 
a
 
Relevant
 
Person
 
other
 
than
 
a
 
Borrower
 
or
 
the
Corporate
 
Guarantor
 
which
 
is,
 
or
 
is
 
to
 
be,
 
effected
 
for
 
the
 
purposes
 
of
 
an
amalgamation
 
or
 
reconstruction
 
previously
 
approved
 
by
 
the
 
Majority
 
Lenders
 
and
effected not later than three months after the commencement of the winding up; or
(viii)
 
an administration notice is given or filed, an
 
application or petition to a court is made
or presented or any other step
 
is taken by a creditor of
 
a Relevant Person
 
(other than
a
 
holder
 
of
 
Security
 
Interests
 
which
 
together
 
relate
 
to
 
all
 
or
 
substantially
 
all
 
of
 
the
assets
 
of
 
a
 
Relevant
 
Person)
 
for
 
the
 
winding
 
up
 
of
 
a
 
Relevant
 
Person
 
or
 
the
appointment
 
of
 
a
 
provisional
 
liquidator
 
or
 
administrator
 
in
 
respect
 
of
 
a
 
Relevant
Person in any Pertinent
 
Jurisdiction, unless the proposed winding up, appointment of
a
 
provisional
 
liquidator
 
or
 
administration
 
is
 
being
 
contested
 
in
 
good
 
faith,
 
on
substantial grounds and not
 
with a view
 
to some other
 
insolvency law procedure being
implemented
 
instead
 
and
 
either
 
(aa)
 
the
 
application
 
or
 
petition
 
is
 
dismissed
 
or
withdrawn within
 
30 days
 
of being
 
made or
 
presented, or
 
(bb) within
 
30 days
 
of the
administration
 
notice
 
being
 
given
 
or
 
filed,
 
or
 
the
 
other
 
relevant
 
steps
 
being
 
taken,
other action
 
is taken which
 
will ensure that
 
there will be
 
no administration and
 
(in both
cases
 
(aa)
 
or
 
(bb))
 
the
 
Relevant
 
Person
 
will
 
continue
 
to
 
carry
 
on
 
business
 
in
 
the
ordinary
 
way
 
and
 
without
 
being
 
the
 
subject
 
of
 
any
 
actual,
 
interim
 
or
 
pending
insolvency law procedure; or
(ix)
 
a Relevant Person or its directors
 
take any steps (whether by making or presenting an
application or petition to a
 
court, or submitting or presenting
 
a document setting out
a proposal
 
or proposed
 
terms, or
 
otherwise) with
 
a view
 
to obtaining,
 
in relation
 
to
that or
 
another Relevant
 
Person,
 
any form
 
of moratorium,
 
suspension or
 
deferral
 
of
payments,
 
reorganisation
 
of
 
debt
 
(or
 
certain
 
debt)
 
or
 
arrangement
 
with
 
all
 
or
 
a
substantial proportion (by number or value) of creditors or of any class
 
of them or any
such moratorium, suspension or deferral of payments, reorganisation or arrangement
is
 
effected
 
by
 
court
 
order,
 
by
 
the
 
filing
 
of
 
documents
 
with
 
a
 
court,
 
by
 
means
 
of
 
a
contract or in any other way at all; or
(x)
 
any meeting of the members or directors,
 
or of any committee of the
 
board or senior
management,
 
of
 
a
 
Relevant
 
Person
 
is
 
held
 
or
 
summoned
 
for
 
the
 
purpose
 
of
considering a resolution
 
or proposal to
 
authorise or take
 
any action of
 
a type described
in paragraphs
 
to
 
or a
 
step preparatory
 
to such
 
action, or (with
 
or without such
 
a
meeting) the
 
members, directors
 
or such
 
a committee
 
resolve or
 
agree that
 
such an
action or step
 
should be taken
 
or should be
 
taken if
 
certain conditions materialise
 
or
fail to materialise; or
(xi)
 
in
 
a
 
country
 
other
 
than
 
England,
 
any
 
event
 
occurs,
 
any
 
proceedings
 
are
 
opened
 
or
commenced or
 
any step is
 
taken which, in
 
the opinion
 
of the
 
Majority Lenders is
 
similar
to any of the foregoing; or
(h)
 
any Borrower ceases or suspends
 
carrying on its business
 
or a part of its
 
business which, in the
opinion of the Majority Lenders, is material in the context of this Agreement; or
(i)
 
it becomes unlawful in any Pertinent Jurisdiction or impossible:
(i)
 
for
 
any
 
Borrower,
 
the
 
Corporate
 
Guarantor
 
or
 
any
 
Security
 
Party
 
to
 
discharge
 
any
liability under a
 
Finance Document or
 
to comply with
 
any other
 
obligation which
 
the
Majority Lenders consider material under a Finance Document;
(ii)
 
for
 
the
 
Agent,
 
the
 
Security
 
Trustee,
 
the
 
Lenders
 
or
 
the
 
Swap
 
Bank
 
to
 
exercise
 
or
enforce
 
any
 
right
 
under,
 
or
 
to
 
enforce
 
any
 
Security
 
Interest
 
created
 
by,
 
a
 
Finance
Document; or
(j)
 
any
 
official
 
consent
 
necessary to
 
enable
 
any
 
Borrower
 
to
 
own,
 
operate
 
or
 
charter
 
the
 
Ship
owned
 
by
 
it
 
or
 
to
 
enable any
 
Borrower
 
or
 
any
 
Security Party
 
to
 
comply
 
with any
 
provision
which the
 
Majority Lenders
 
consider material
 
of a
 
Finance Document is
 
not granted,
 
expires
without being renewed, is revoked or becomes
 
liable to revocation or any condition of such a
consent is not fulfilled; or
 
(k)
 
it appears to the Majority Lenders that, without their prior consent, a change has occurred
 
or
probably has occurred after the date
 
of this Agreement in the ownership of
 
any of the shares
in a Borrower or the Approved Manager; or
(l)
 
any provision which the Majority Lenders
 
consider material of a Finance Document
 
proves to
have
 
been or
 
becomes invalid
 
or unenforceable,
 
or a
 
Security Interest
 
created
 
by a
 
Finance
Document proves to
 
have been or
 
becomes invalid or
 
unenforceable or such
 
a Security
 
Interest
proves to have ranked after, or loses its priority to, another
 
Security Interest or any other
 
third
party claim or interest; or
(m)
 
the security constituted by a Finance Document is in any way imperilled or in jeopardy; or
(n)
 
without the prior
 
consent of the
 
Lenders, the shares
 
of the Corporate
 
Guarantor cease to
 
be
listed on the New York Stock Exchange; or
(o)
 
an Event of Default (as defined in section 14 of the Master Agreement) occurs; or
(p)
 
the Master Agreement
 
is terminated, cancelled,
 
suspended, rescinded
 
or revoked or
 
otherwise
ceases to
 
remain in
 
full force
 
and effect
 
for any
 
reason except
 
with the consent
 
of the
 
Swap
Bank; or
(q)
 
any
 
other
 
event
 
occurs
 
or
 
any
 
other
 
circumstances
 
arise
 
or
 
develop
 
including,
 
without
limitation:
(i)
 
a change in the financial position, state of affairs or prospects of any Relevant Person;
or
(ii)
 
any accident or other event
 
involving any Ship or another
 
vessel owned, chartered or
operated by a Relevant Person,
in
 
the
 
light
 
of
 
which
 
the
 
Majority
 
Lenders
 
consider
 
that
 
there
 
is
 
a
 
significant
 
risk
 
that
 
any
Borrower
 
or
 
Corporate
 
Guarantor
 
is,
 
or
 
will
 
later
 
become,
 
unable to
 
discharge
 
its
 
liabilities
under the Finance Documents as they fall due.
19.2
 
Actions following an Event of Default
On, or at any time after, the occurrence of an Event
 
of Default:
(a)
 
the Agent may,
 
and if so instructed by the Majority Lenders, the Agent shall:
(i)
 
serve on the Borrowers a notice
 
stating that all or part
 
of the Commitments and
 
of the
other obligations of
 
each Lender
 
to the Borrowers
 
under this
 
Agreement are cancelled;
and/or
(ii)
 
serve
 
on
 
the
 
Borrowers
 
a
 
notice
 
stating
 
that
 
all
 
or
 
part
 
of
 
the
 
Loan
 
together
 
with
accrued interest
 
and all
 
other amounts
 
accrued or
 
owing under
 
this Agreement
 
are
immediately due and payable or are due and payable on demand; and/or
(iii)
 
take
 
any other
 
action which,
 
as a
 
result of
 
the Event
 
of Default
 
or any
 
notice served
under paragraph
 
or
, the Agent
 
and/or the Lenders
 
are entitled to
 
take under any
Finance Document or any applicable law; and/or
(b)
 
the Security
 
Trustee
 
may,
 
and if
 
so instructed
 
by the
 
Agent, acting
 
with the
 
authorisation of
the Majority Lenders, the Security Trustee shall take any action which, as a result of the Event
of Default or
 
any notice
 
served under
 
paragraph
 
or
, the
 
Security Trustee, the
 
Agent and/or
the Lenders
 
and/or the
 
Swap Bank
 
are entitled
 
to take
 
under any
 
Finance Document
 
or any
applicable law.
19.3
 
Termination of Commitments
On
 
the
 
service
 
of
 
a
 
notice
 
under
 
Clause
 
(
Actions
 
following
 
an
 
Event
 
of
 
Default
),
 
the
Commitments and all
 
other obligations of each
 
Lender to the Borrowers under
 
this Agreement
shall be cancelled.
19.4
 
Acceleration of Loan
On the service of a notice under Xxxxxx
 
(
Actions following an Event of Default
), all or,
 
as the
case may be, the part of
 
the Loan specified in
 
the notice together with accrued
 
interest and all
other
 
amounts
 
accrued
 
or
 
owing
 
from
 
the
 
Borrowers
 
or
 
any
 
Security
 
Party
 
under
 
this
Agreement and every other Finance
 
Document shall become immediately due
 
and payable or,
as the case may be, payable on demand.
19.5
 
Multiple notices; action without notice
The
 
Agent
 
may
 
serve notices
 
under Clauses
 
and
 
(
Actions
 
following
 
an
 
Event
 
of Default
)
simultaneously or
 
on different
 
dates and
 
it and/or
 
the Security
 
Trustee
 
may take
 
any action
referred
 
to in
 
Clause
 
(
Actions
 
following an
 
Event
 
of Default
) if
 
no such
 
notice is
 
served or
simultaneously with or at any time after the service of both or either of such notices.
19.6
 
Notification of Creditor Parties and Security Parties
The Agent
 
shall send
 
to each
 
Lender,
 
the Swap
 
Bank, the
 
Security Trustee
 
and each
 
Security
Party a copy or the text of any notice
 
which the Agent serves on
 
the Borrowers under Clause
(
Actions following an Event of Default
); but the notice shall
 
become effective when it is served
on the Borrowers, and no failure or delay by the Agent to send a copy
 
or the text of the notice
to any other
 
person shall invalidate
 
the notice or provide
 
any Borrower or
 
any Security Party
with any form of claim or defence.
19.7
 
Creditor Party's rights unimpaired
Nothing
 
in
 
this
 
Clause shall
 
be
 
taken
 
to
 
impair or
 
restrict
 
the exercise
 
of
 
any
 
right
 
given
 
to
individual Lenders
 
or the
 
Swap
 
Bank under
 
a Finance
 
Document or
 
the general
 
law; and,
 
in
particular,
 
this
 
Clause
 
is
 
without
 
prejudice
 
to
 
Clause
 
(
Interest
 
of
 
Lenders
 
and
 
Swap
 
Bank
several
).
 
19.8
 
Exclusion of Creditor Party liability
No Creditor
 
Party,
 
and no receiver
 
or manager
 
appointed by the
 
Security Trustee,
 
shall have
any liability to a Borrower or a Security Party:
(a)
 
for any loss
 
caused by
 
an exercise of
 
rights under, or enforcement of
 
a Security
 
Interest created
by, a Finance Document or by any failure or delay to
 
exercise such a right or to enforce such a
Security Interest; or
(b)
 
as mortgagee in
 
possession or
 
otherwise, for
 
any income
 
or principal
 
amount which
 
might have
been produced by
 
or realised from
 
any asset comprised
 
in such a
 
Security Interest or
 
for any
reduction (however caused) in the value of such an asset,
except
 
that this
 
does not
 
exempt
 
a Creditor
 
Party or
 
a receiver
 
or manager
 
from liability
 
for
losses
 
shown
 
to
 
have
 
been
 
directly
 
and
 
mainly
 
caused
 
by
 
the
 
dishonesty
 
or
 
the
 
wilful
misconduct of such Creditor Party's
 
own officers and employees or
 
(as the case may be)
 
such
receiver's or manager's own partners or employees and any other member of the Group.
19.9
 
Relevant Persons
In
 
this
 
Clause
 
(
Events
 
of
 
Default
),
 
a
 
"
Relevant
 
Person
"
 
means
 
a
 
Borrower,
 
the
 
Corporate
Guarantor
 
or
 
a
 
Security
 
Party,
 
and
 
any
 
company
 
which
 
is
 
a
 
subsidiary
 
of
 
the
 
Corporate
Guarantor or a Security Party and any other
 
member of the Group but
 
excluding any company
which is dormant and the value of whose gross assets is $50,000 or less.
19.10
 
Interpretation
In Clause
Events of Default
), references to an event
 
of default or a
 
termination event include
any event, howsoever described, which is similar to an event of default in a facility agreement
or a
 
termination event in
 
a finance
 
lease; and
 
in Clause
Events of
 
Default
), "
petition
" includes
an application.
19.11
 
Position of Swap Bank
Neither the
 
Agent nor
 
the Security
 
Trustee shall be
 
obliged, in
 
connection with
 
any action
 
taken
or proposed to be
 
taken under or pursuant to
 
the foregoing provisions of
 
this Clause
, to have
any regard
 
to the requirements
 
of the Swap
 
Bank except
 
to the extent
 
that the Swap
 
Bank is
also a Lender.
20
 
FEES AND EXPENSES
 
20.1
 
Fees
The Borrowers shall pay to the Agent:
(a)
 
on the date
 
of this Agreement,
 
a non-refundable arrangement
 
fee computed at the
 
rate of one
per
 
cent.
 
of
 
the
 
Total
 
Commitments
 
for
 
distribution
 
among
 
the
 
Lenders
 
pro
 
rata
 
to
 
their
Commitments.
 
(b)
 
a commitment
 
fee at
 
a rate
 
equal to
 
35 per
 
cent. of
 
the Margin
 
per annum
 
on the
 
undrawn
amount of the Total Commitments from time to time.
 
The accrued commitment fee is
 
payable
on
 
the
 
last
 
day
 
of
 
each
 
successive
 
period
 
of
 
three
 
Months
 
which
 
ends
 
during
 
the
 
relevant
Availability Period,
 
on the last
 
day of the
 
relevant Availability
 
Period and, if
 
cancelled, on the
cancelled
 
amount
 
of
 
the
 
relevant
 
Lender's
 
Commitment
 
at
 
the
 
time
 
the
 
cancellation
 
is
effective.
20.2
 
Costs of negotiation, preparation etc.
The Borrowers
 
shall pay
 
to the
 
Agent on
 
its demand the
 
amount of
 
all expenses
 
incurred by
the Agent
 
or the Security
 
Trustee
 
in connection with
 
the negotiation, preparation,
 
execution
or
 
registration
 
of
 
any
 
Finance
 
Document
 
or
 
any
 
related
 
document
 
or
 
with
 
any
 
transaction
contemplated by a Finance Document or a related document.
20.3
 
Costs of variations, amendments, enforcement etc.
The Borrowers shall pay to the Agent, on the Agent
 
's demand, for the account of the Creditor
Party concerned, the amount of all expenses incurred by a Creditor Party in connection with:
 
(a)
 
any amendment or
 
supplement to a
 
Finance Document (required
 
for the continuation
 
of the
availability of the
 
Loan or as
 
contemplated under Xxxxxx
Changes to reference
 
rates
)), or any
proposal
 
for such an amendment to be made;
 
(b)
 
any
 
consent or
 
waiver
 
by the
 
Lenders, the
 
Swap
 
Bank, the
 
Majority Lenders
 
or the
 
Creditor
Party concerned
 
under or in
 
connection with
 
a Finance Document,
 
or any
 
request for
 
such a
consent or waiver;
(c)
 
the valuation of any security provided
 
or offered under Clause
 
(
Security Cover
) or any other
matter relating to such security; or
(d)
 
where the
 
Security Trustee,
 
in its absolute
 
opinion, considers
 
that there
 
has been a
 
material
change to
 
the insurances
 
in respect
 
of a
 
Ship, the
 
review of
 
the insurances
 
of that
 
Ship pursuant
to Clause
 
(
Review of insurance requirements
); and
(e)
 
any step taken by
 
the Creditor party
 
concerned or
 
the Swap Bank
 
with a
 
view to the
 
protection,
exercise or enforcement of any right or
 
Security Interest created by a Finance
 
Document or for
any similar purpose.
There shall
 
be recoverable
 
under paragraph
 
the full
 
amount of
 
all legal
 
expenses, whether
or not
 
such as
 
would be
 
allowed under
 
rules of
 
court or
 
any taxation or
 
other procedure
 
carried
out under such rules.
20.4
 
Extraordinary management time
The Borrowers shall
 
pay to
 
the Agent on
 
its demand
 
compensation in respect
 
of the reasonable
and documented amount of time
 
which the management of either
 
Servicing Bank has
 
spent in
connection with a matter covered by Xxxxxx
 
(
Costs of variations, amendments, enforcement
etc.
)
 
and
 
which
 
exceeds
 
the
 
amount
 
of
 
time
 
which
 
would
 
ordinarily
 
be
 
spent
 
in
 
the
performance of the relevant Servicing Bank's routine functions.
 
Any such compensation shall
be based
 
on such
 
reasonable daily or
 
hourly rates
 
as the
 
Agent may
 
notify to
 
the Borrowers
and is in addition to any fee paid or payable to the relevant Servicing Bank.
20.5
 
Documentary taxes
The
 
Borrowers
 
shall
 
promptly
 
pay
 
any
 
tax
 
payable
 
on
 
or
 
by
 
reference
 
to
 
any
 
Finance
Document, and shall, on the
 
Agent's demand, fully indemnify each Creditor
 
Party against any
claims, expenses, liabilities and losses
 
resulting from any
 
failure or delay
 
by the Borrowers
 
to
pay such a tax.
20.6
 
Financial Services Authority fees
The Borrowers
 
shall pay to
 
the Agent, on
 
the Agent's demand,
 
for the account
 
of the Lender
concerned
 
the
 
amounts
 
which
 
the
 
Agent
 
from
 
time
 
to
 
time
 
notifies
 
the
 
Borrowers
 
that
 
a
Xxxxxx has notified the Agent to be necessary to compensate it for the cost attributable to its
Contribution resulting from the imposition
 
from time to time
 
under or pursuant to the
 
Bank of
England Act 1998 and/or by the
 
Bank of England and/or by the
 
Financial Services Authority (or
other United Kingdom governmental
 
authorities or agencies) of a
 
requirement to
 
pay fees to
the
 
Financial
 
Services
 
Authority
 
calculated
 
by
 
reference
 
to
 
liabilities
 
used
 
to
 
fund
 
its
Contribution.
20.7
 
Certification of amounts
A
 
notice
 
which
 
is
 
signed
 
by
 
two
 
officers
 
of
 
a
 
Creditor
 
Party,
 
which
 
states
 
that
 
a
 
specified
amount,
 
or
 
aggregate
 
amount,
 
is
 
due
 
to
 
that
 
Creditor
 
Party
 
under
 
this
 
Clause
 
and
 
which
indicates (without necessarily
 
specifying a
 
detailed breakdown) the
 
matters in respect
 
of which
the amount,
 
or aggregate
 
amount, is
 
due shall
 
be prima
 
facie evidence
 
that the
 
amount, or
aggregate amount, is due.
21
 
INDEMNITIES
 
21.1
 
Indemnities regarding borrowing and repayment of Loan
The Borrowers shall fully
 
indemnify the
 
Agent and each
 
Lender on the
 
Agent's demand and
 
the
Security Trustee
 
on its
 
demand in respect
 
of all
 
claims, expenses,
 
liabilities and losses
 
which
are made
 
or brought
 
against or
 
incurred by
 
that Creditor
 
Party,
 
or which
 
that Creditor
 
Party
reasonably and
 
with due
 
diligence estimates
 
that it
 
will incur,
 
as a
 
result of
 
or in
 
connection
with:
(a)
 
a Tranche
 
not being borrowed
 
on the date
 
specified in the
 
Drawdown Notice
 
for any
 
reason
other than a default by the Lender claiming the indemnity;
 
(b)
 
the receipt or recovery of all or any part of the Loan
 
or an overdue sum otherwise than on the
last day of an Interest Period or other relevant period;
(c)
 
any failure (for whatever reason)
 
by the Borrowers
 
to make payment of
 
any amount due
 
under
a Finance Document on the
 
due date or,
 
if so payable, on
 
demand (after giving credit
 
for any
default
 
interest
 
paid
 
by
 
the
 
Borrowers
 
on
 
the
 
amount
 
concerned
 
under
 
Clause
 
(
Default
Interest
)) ; and
(d)
 
the occurrence of
 
an Event of
 
Default or a
 
Potential Event
 
of Default and/or
 
the acceleration
of repayment of the Loan under Xxxxxx
 
(
Events of Default
),
and in respect
 
of any tax
 
(other than tax
 
on its overall
 
net income or
 
a FATCA
 
Deduction) for
which a Creditor Party is liable in
 
connection with any amount paid
 
or payable to that Creditor
Party (whether for its own account or otherwise) under any Finance Document.
21.2
 
Miscellaneous indemnities
The Borrowers shall fully indemnify each Creditor Party severally on their respective demands
in respect of all claims, expenses, liabilities and losses which may
 
be made or brought against
or incurred by a Creditor Party, in any
 
country, as a result of or in connection with:
(a)
 
any action taken, or
 
omitted or neglected
 
to be taken, under
 
or in connection
 
with any Finance
Document by
 
the Agent,
 
the Security
 
Trustee
 
or any
 
other Creditor
 
Party or
 
by any
 
receiver
appointed under a Finance Document; or
(b)
 
any civil
 
penalty or fine
 
against, and
 
all reasonable costs
 
and expenses (including
 
reasonable
fees of counsel and disbursements) incurred in
 
connection with or the
 
defence thereof by, the
Agent
 
or
 
any
 
other
 
Creditor
 
Party
 
as
 
a
 
result
 
of
 
conduct
 
of
 
any
 
Borrower
 
or
 
any
 
of
 
their
partners, directors, officers, employees, agents or advisors, that violates any Sanctions;
 
or
(c)
 
any other Pertinent Matter,
other than claims,
 
expenses, liabilities and losses
 
which are shown
 
to have
 
been directly and
mainly
 
caused
 
by
 
the
 
dishonesty
 
or
 
wilful
 
misconduct
 
of
 
the
 
officers
 
or
 
employees
 
of
 
the
Creditor Party concerned.
Without prejudice
 
to its
 
generality, this Clause
Miscellaneous indemnities
) covers any
 
claims,
expenses, liabilities
 
and losses
 
which arise,
 
or are
 
asserted, under
 
or in
 
connection with
 
any
law relating
 
to safety
 
at sea,
 
the ISM
 
Code, the
 
ISPS Code
 
or any
 
Environmental
 
Law or
 
any
Sanctions.
21.3
 
Environmental Indemnity
Without
 
prejudice
 
to
 
its generality,
 
Clause
 
(
Miscellaneous indemnities
) covers
 
any
 
claims,
demands, proceedings,
 
liabilities, taxes,
 
losses or
 
expenses of
 
every kind
 
which arise,
 
or are
asserted,
 
under
 
or
 
in
 
connection
 
with
 
any
 
law
 
relating
 
to
 
safety
 
at
 
sea,
 
pollution
 
or
 
the
protection of the environment, the ISM Code or the ISPS Code.
21.4
 
Currency indemnity
If any
 
sum due
 
from any
 
Borrower or
 
any Security
 
Party to
 
a Creditor
 
Party under
 
a Finance
Document or under
 
any order or
 
judgment relating to
 
a Finance
 
Document has
 
to be converted
from
 
the
 
currency
 
in
 
which
 
the
 
Finance
 
Document
 
provided
 
for
 
the
 
sum
 
to
 
be
 
paid
 
(the
"Contractual Currency") into another currency (the "Payment Currency") for the purpose of:
(a)
 
making or lodging
 
any claim or
 
proof against
 
any Borrower
 
or any
 
Security Party,
 
whether in
its liquidation, any arrangement involving it or otherwise; or
(b)
 
obtaining an order or judgment from any court or other tribunal; or
(c)
 
enforcing any such order or judgment,
the Borrowers shall
 
indemnify the Creditor Party
 
concerned against the loss
 
arising when the
amount of the
 
payment actually received
 
by that Creditor
 
Party is
 
converted at
 
the available
rate of exchange into the Contractual Currency.
In this
 
Clause
Currency indemnity
), the
 
"
available rate of
 
exchange
" means the
 
rate at which
the Creditor Party concerned is able at the opening of business
 
(London time) on the Business
Day
 
after
 
it
 
receives
 
the
 
sum
 
concerned
 
to
 
purchase
 
the
 
Contractual
 
Currency
 
with
 
the
Payment Currency.
This Clause
 
(
Currency indemnity
)creates a separate liability of
 
the Borrowers which is
 
distinct
from their other liabilities under
 
the Finance Documents and
 
which shall not be merged
 
in any
judgment or order relating to those other liabilities.
21.5
 
Application to Master Agreement
For the
 
avoidance of
 
doubt, Clause
 
(
Currency indemnity
)does not
 
apply in
 
respect of
 
sums
due from the Borrowers to the Swap Bank under or in connection with
 
the Master Agreement
as to which sums the provisions
 
of section 8 (
Contractual Currency
) of the Master Agreement
shall apply.
21.6
 
Mandatory Cost
Each Borrower shall, on
 
demand by the
 
Agent, pay to the
 
Agent for the account
 
of the relevant
Lender,
 
such amount which
 
any Lender
 
certifies in
 
a notice to
 
the Agent
 
to be
 
its good
 
faith
determination of the amount necessary to compensate it for complying with:
(a)
 
in
 
the
 
case
 
of
 
a
 
Lender
 
lending
 
from
 
a
 
Facility
 
Office
 
in
 
a
 
Participating
 
Member
 
State,
 
the
minimum reserve requirements (or
 
other requirements having the
 
same or similar
 
purpose) of
the European
 
Central Bank
 
(or any
 
other authority or
 
agency which
 
replaces all
 
or any
 
of its
functions) in respect of loans made from that Facility Office; and
(b)
 
in the
 
case
 
of
 
any
 
Lender lending
 
from
 
a Facility
 
Office in
 
the United
 
Kingdom, any
 
reserve
asset,
 
special
 
deposit
 
or
 
liquidity
 
requirements
 
(or
 
other
 
requirements
 
having
 
the
 
same
 
or
similar
 
purpose)
 
of
 
the
 
Bank
 
of
 
England
 
(or
 
any
 
other
 
governmental
 
authority
 
or
 
agency)
and/or
 
paying any
 
fees
 
to the
 
Financial Conduct
 
Authority and/or
 
the Prudential
 
Regulation
Authority (or
 
any other
 
governmental
 
authority or
 
agency which
 
replaces all
 
or any
 
of their
functions),
which, in each case, is referable to that Xxxxxx's participation in the Loan.
21.7
 
Certification of amounts
A
 
notice
 
which
 
is
 
signed
 
by
 
two
 
officers
 
of
 
a
 
Creditor
 
Party,
 
which
 
states
 
that
 
a
 
specified
amount,
 
or
 
aggregate
 
amount,
 
is
 
due
 
to
 
that
 
Creditor
 
Party
 
under
 
this
 
Clause
 
and
 
which
indicates (without necessarily
 
specifying a
 
detailed breakdown) the
 
matters in respect
 
of which
the amount,
 
or aggregate
 
amount, is
 
due shall
 
be prima
 
facie evidence
 
that the
 
amount, or
aggregate amount, is due.
21.8
 
Sums deemed due to a Lender
For the purposes of this Clause
 
(
Indemnities
), a sum payable by
 
the Borrowers to
 
the Agent
or the Security
 
Trustee for distribution to
 
a Lender
 
shall be
 
treated as a
 
sum due
 
to that Lender.
22
 
NO SET-OFF OR TAX
 
DEDUCTION
 
22.1
 
No deductions
All amounts due from the Borrowers under a Finance Document shall be paid:
(a)
 
without any form of set off, cross-claim or condition; and
(b)
 
free and clear of
 
any tax deduction except a
 
tax deduction which a
 
Borrower is required by law
to make.
22.2
 
Grossing-up for taxes
If a Borrower is required by law to make a tax deduction from any payment:
(a)
 
that Xxxxxxxx shall notify the Agent as soon as it becomes aware of the requirement;
(b)
 
that Borrower shall pay the tax deducted
 
to the appropriate taxation
 
authority promptly, and
in any event before any fine or penalty arises; and
(c)
 
the
 
amount
 
due
 
in
 
respect
 
of
 
the
 
payment
 
shall
 
be
 
increased
 
by
 
the
 
amount
 
necessary
 
to
ensure that each Creditor Party receives
 
and retains (free from any
 
liability relating to the tax
deduction) a net
 
amount which, after
 
the tax
 
deduction, is equal
 
to the
 
full amount which
 
it
would otherwise have received.
22.3
 
Evidence of payment of taxes
Within one month
 
after making any
 
tax deduction, the
 
Borrower concerned shall
 
deliver to the
Agent
 
documentary
 
evidence
 
satisfactory
 
to
 
the
 
Agent
 
that
 
the
 
tax
 
had
 
been
 
paid
 
to
 
the
appropriate taxation authority.
22.4
 
Exclusion of tax on overall net income
In
 
this
 
Clause
 
(
No
 
set-off
 
or
 
Tax
 
Deduction
)
 
"
tax
 
deduction
"
 
means
 
any
 
deduction
 
or
withholding for
 
or
 
on
 
account
 
of
 
any
 
present
 
or
 
future
 
tax
 
except
 
tax
 
on
 
a
 
Creditor
 
Party's
overall net income, other than a FATCA
 
Deduction.
22.5
 
Application to Master Agreement
For the avoidance of doubt, Xxxxxx
 
(
No set-off or Tax Deduction
) does not apply
 
in respect of
sums
 
due
 
from
 
the
 
Borrowers
 
to
 
the
 
Swap
 
Bank
 
under
 
or
 
in
 
connection
 
with
 
the
 
Master
Agreement as to which sums the provisions of section 2(d) (
Deduction or Withholding for Tax
)
of the Master Agreement shall apply.
22.6
 
FATCA
 
Information
(a)
 
Subject
 
to
 
paragraph
 
below,
 
each
 
Party
 
shall,
 
within
 
ten
 
Business
 
Days
 
of
 
a
 
reasonable
request by another Party:
(i)
 
confirm to that other Party whether it is:
(A)
 
a FATCA
 
Exempt Party; or
(B)
 
not a FATCA
 
Exempt Party; and
(ii)
 
supply to that other
 
Party such forms,
 
documentation and other information
 
relating
to its status
 
under FATCA
 
as that other Party
 
reasonably requests for the
 
purposes of
that other Party's compliance with FATCA;
 
and
(iii)
 
supply to that other
 
Party such forms,
 
documentation and other information
 
relating
to
 
its
 
status
 
as
 
that
 
other
 
Party
 
reasonably
 
requests
 
for
 
the
 
purposes of
 
that
 
other
Party's compliance with any other law, regulation or exchange
 
of information regime.
(b)
 
If a Party confirms to
 
another Party pursuant to sub-paragraph
 
of paragraph
 
above that it
is a FATCA
 
Exempt Party and it subsequently becomes aware that it is not, or has
 
ceased to be
a FATCA
 
Exempt Party,
 
that Party shall notify that other Party reasonably promptly.
(c)
 
Paragraph
 
above shall not
 
oblige any
 
Creditor Party to
 
do anything and sub-paragraph
 
of
paragraph
 
above shall not oblige any other Party to do anything which would or might in its
reasonable opinion constitute a breach of:
(i)
 
any law or regulation;
(ii)
 
any fiduciary duty; or
(iii)
 
any duty of confidentiality.
(d)
 
If
 
a
 
Party
 
fails
 
to
 
confirm
 
whether
 
or
 
not
 
it
 
is
 
a
 
FATCA
 
Exempt
 
Party
 
or
 
to
 
supply
 
forms,
documentation or
 
other information
 
requested in
 
accordance with
 
sub-paragraphs
 
or
 
of
paragraph
 
above (including, for the avoidance
 
of doubt, where paragraph
 
above applies),
then such
 
Party shall
 
be treated
 
for
 
the purposes
 
of the
 
Finance Documents
 
(and payments
under
 
them)
 
as
 
if
 
it
 
is
 
not
 
a
 
FATCA
 
Exempt
 
Party
 
until
 
such
 
time
 
as
 
the
 
Party
 
in
 
question
provides the requested confirmation, forms, documentation or other information.
(e)
 
If a Borrower
 
is a US
 
Tax
 
Obligor,
 
or the Agent
 
reasonably believes that
 
its obligations
 
under
FATCA
 
or
 
any
 
other
 
applicable
 
law
 
or
 
regulation
 
require
 
it,
 
each
 
Lender
 
shall,
 
within
 
ten
Business Days of:
(i)
 
where a Borrower is
 
a US Tax Obligor and
 
the relevant Lender
 
is a Lender
 
as of the
 
date
of this Agreement, the date of this Agreement;
(ii)
 
where
 
a Borrower
 
is a
 
US Tax
 
Obligor
 
on
 
a
 
date
 
where
 
a
 
transfer
 
is effected
 
under
Clause
 
(
Transfer
 
by a
 
Lender
) and
 
the relevant
 
Lender is
 
a
 
Transferee
 
Lender,
 
the
relevant date on which such transfer is effected under Clause
 
(
Transfer by a Lender
);
or
(iii)
 
where a Borrower is not a US Tax Obligor,
 
the date of a request from the Agent,
supply to the Agent:
(iv)
 
a withholding certificate on Form W-8, Form W-9 or any other relevant
 
form; or
(v)
 
any withholding
 
statement or
 
other document,
 
authorisation or
 
waiver as
 
the Agent
may require to certify or
 
establish the status of such
 
Lender under FATCA or that other
law or regulation.
(f)
 
The
 
Agent
 
shall
 
provide
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
 
document,
authorisation
 
or
 
waiver
 
it
 
receives
 
from
 
a
 
Lender
 
pursuant
 
to
 
paragraph
 
above
 
to
 
the
Borrowers.
(g)
 
If
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
 
document,
 
authorisation
 
or
 
waiver
provided to
 
the Agent
 
by a
 
Lender pursuant
 
to
 
paragraph
 
above is
 
or becomes
 
materially
inaccurate
 
or
 
incomplete,
 
that
 
Lender
 
shall
 
promptly
 
update
 
it
 
and
 
provide
 
such
 
updated
withholding
 
certificate,
 
withholding
 
statement,
 
document,
 
authorisation
 
or
 
waiver
 
to
 
the
Agent
 
unless it
 
is unlawful
 
for
 
the Lender
 
to do
 
so (in
 
which case
 
the Lender
 
shall promptly
notify
 
the
 
Agent).
 
The
 
Agent
 
shall
 
provide
 
any
 
such
 
updated
 
withholding
 
certificate,
withholding statement, document, authorisation or waiver to the Borrowers.
(h)
 
The
 
Agent
 
may
 
rely
 
on
 
any
 
withholding
 
certificate,
 
withholding
 
statement,
 
document,
authorisation or waiver it receives from a Lender pursuant
 
to paragraph
 
or
 
above without
further
 
verification.
 
The
 
Agent
 
shall
 
not
 
be
 
liable
 
for
 
any
 
action
 
taken
 
by
 
it
 
under
 
or
 
in
connection with paragraphs
,
 
or
 
above.
22.7
 
FATCA
 
Deduction
(a)
 
Each Party may make any FATCA
 
Deduction it is required to make by FATCA, and any payment
required in connection with that FATCA
 
Deduction, and no Party shall be required to increase
any payment
 
in respect of which
 
it makes such
 
a FATCA
 
Deduction or otherwise compensate
the recipient of the payment for that FATCA
 
Deduction.
(b)
 
Each Party shall
 
promptly, upon becoming aware that
 
it must make a
 
FATCA
 
Deduction (or
 
that
there is any
 
change in the
 
rate or the basis
 
of such FATCA Deduction), notify the
 
Party to whom
it is
 
making the
 
payment and,
 
in addition,
 
shall notify
 
each Borrower
 
and the
 
Agent and
 
the
Agent shall notify the other Creditor Parties.
23
 
ILLEGALITY AND SANCTIONS AFFECTING A LENDER
23.1
 
Illegality
This Clause
 
(
Illegality and Sanctions affecting a Lender
) applies if:
(a)
 
a Lender
 
(the "
Notifying Lender
") notifies
 
the Agent
 
that it
 
has become,
 
or will
 
with effect from
a specified date, become:
(i)
 
unlawful or prohibited as a result
 
of the introduction of a new law,
 
an amendment to
an
 
existing
 
law
 
or
 
a
 
change
 
in
 
the
 
manner
 
in
 
which
 
an
 
existing
 
law
 
is
 
or
 
will
 
be
interpreted or applied; or
 
(ii)
 
contrary to, or inconsistent with, any regulation or Sanctions,
for
 
the
 
Notifying
 
Lender
 
to
 
maintain
 
or
 
give
 
effect
 
to
 
any
 
of
 
its
 
obligations
 
under
 
this
Agreement in the manner contemplated by this
 
Agreement or to determine or charge interest
rates based upon Term
 
SOFR;
 
and
(b)
 
without prejudice to
 
any of
 
the express
 
obligations of the
 
Security Parties under
 
the Finance
Documents,
 
in
 
the
 
opinion
 
of
 
a
 
Lender
 
acting
 
reasonably
 
anything
 
whatsoever
 
is
 
done
 
or
omitted to be done by a Security Party which would result in
 
that Lender being in breach of or
made subject to Sanctions,
 
or at risk of being in breach of or made subject to Sanctions.
23.2
 
Notification of illegality
The Agent shall
 
promptly notify the Borrowers,
 
the Security Parties, the
 
Security Trustee
 
and
the other Lenders
 
of the notice
 
under Clause
 
(
Illegality
) which the
 
Agent receives
 
from the
Notifying Lender.
23.3
 
Prepayment; termination of Commitment
On the Agent
 
notifying the Borrowers
 
under Clause
 
(
Notification of illegality
), the Notifying
Xxxxxx's Commitment shall terminate; and thereupon or,
 
if later,
 
on the date specified in the
Notifying Xxxxxx's
 
notice under
 
Clause
 
(
Illegality
) as
 
the date
 
on which
 
the notified
 
event
would
 
become
 
effective
 
the
 
Borrowers
 
shall
 
prepay
 
the
 
Notifying
 
Lender's
 
Contribution
 
in
accordance with Clause
 
(
Repayment and prepayment
).
23.4
 
Mitigation
If
 
circumstances
 
arise
 
which
 
would
 
result
 
in
 
a
 
notification
 
under
 
Clause
 
(
Illegality
)
 
then,
without
 
in any
 
way
 
limiting the
 
rights
 
of
 
the Notifying
 
Lender under
 
Clause
 
(
Prepayment;
termination of Commitment
), the Notifying
 
Lender shall
 
use reasonable endeavours
 
to transfer
its
 
obligations,
 
liabilities
 
and
 
rights
 
under
 
this
 
Agreement
 
and
 
the
 
Finance
 
Documents
 
to
another
 
office
 
or
 
financial
 
institution
 
not
 
affected
 
by
 
the
 
circumstances
 
but
 
the
 
Notifying
Lender shall not be under any obligation to take
 
any such action if,
 
in its opinion, to do would
or might:
(a)
 
have an adverse effect on its business, operations or financial condition; or
(b)
 
involve it
 
in any
 
activity which is
 
unlawful or prohibited
 
or any
 
activity that
 
is contrary
 
to, or
inconsistent with, any regulation; or
(c)
 
involve it in any expense (unless indemnified to its satisfaction) or tax disadvantage.
24
 
INCREASED COSTS
 
24.1
 
Increased costs
This Clause
 
(
Increased costs
) applies if
 
a Lender (the
 
"
Notifying Lender
") notifies the Agent
that the Notifying Xxxxxx considers that as a result of:
(a)
 
the introduction or
 
alteration after
 
the date of
 
this Agreement of
 
a law or
 
an alteration after
the date of this
 
Agreement in the
 
manner in which
 
a law is
 
interpreted or applied (disregarding
any effect
 
which relates to the
 
application to payments under
 
this Agreement of a tax
 
on the
Xxxxxx's overall net income); or
(b)
 
complying
 
with
 
any
 
regulation
 
(including
 
any
 
which
 
relates
 
to
 
capital
 
adequacy
 
or
 
liquidity
controls or which affects the manner in which the Notifying
 
Lender allocates capital resources
to its obligations under
 
this Agreement) which is introduced,
 
or altered, or the interpretation
or application of which is altered, after the date of this Agreement; or
(c)
 
complying
 
with
 
any
 
regulation
 
(including
 
the
 
"International
 
Convergence
 
of
 
Capital
Measurement and
 
Capital Standards, a
 
Revised Framework"
 
published by
 
the Basel
 
Committee
on Banking Supervision
 
in June 2004,
 
in the form
 
existing on
 
the date of
 
this Agreement and
any other regulation
 
which relates to
 
capital adequacy or
 
liquidity controls or
 
which affects the
manner in which the
 
Notifying Lender allocates capital
 
resources to its
 
obligations under this
Agreement)
 
which is
 
introduced, or
 
altered,
 
or
 
the
 
interpretation
 
or
 
application of
 
which is
altered, after the date of this Agreement; or
(d)
 
the introduction,
 
implementation, application,
 
administration or
 
compliance with Basel
 
III or
CRD IV, or any law or regulation which implements or applies Basel III or CRD IV (regardless of
the
 
date
 
on
 
which
 
it
 
is
 
enacted,
 
adopted
 
or
 
issued
 
and
 
regardless
 
of
 
whether
 
any
 
such
implementation, application
 
or compliance
 
is by
 
a government,
 
regulator,
 
the Creditor
 
Party
or any of its affiliates) after the date of this Agreement,
the Notifying Lender (or a parent
 
company of it) has incurred or will
 
incur an "
increased
cost
".
24.2
 
Meaning of "increased costs"
In this Clause
 
(
Increased costs
), "
increased costs
" means, in relation to a Notifying Lender:
(a)
 
an
 
additional
 
or
 
increased
 
cost
 
incurred
 
as
 
a
 
result
 
of,
 
or
 
in
 
connection
 
with,
 
the
Notifying Lender having
 
entered into, or being a
 
party to, this Agreement
 
or a Transfer
Certificate, of
 
funding or maintaining
 
its Commitment or
 
Contribution or performing
its
 
obligations
 
under
 
this Agreement,
 
or
 
of
 
having
 
outstanding
 
all
 
or
 
any
 
part of
 
its
Contribution or other unpaid sums;
 
(b)
 
a
 
reduction
 
in
 
the
 
amount
 
of
 
any
 
payment
 
to
 
the
 
Notifying
 
Lender
 
under
 
this
Agreement or in
 
the effective return
 
which such a
 
payment represents to
 
the Notifying
Lender or on its capital;
(c)
 
an additional or increased cost of funding all or maintaining all
 
or any of the advances
comprised
 
in
 
a
 
class
 
of
 
advances
 
formed
 
by
 
or
 
including
 
the
 
Notifying
 
Lender's
Contribution or
 
(as the
 
case may
 
require) the
 
proportion of
 
that cost
 
attributable to
the Contribution; or
(d)
 
a liability
 
to make
 
a payment,
 
or a
 
return foregone,
 
which is calculated
 
by reference
to any amounts received or receivable by the Notifying Lender under this Agreement,
but not
 
an item
 
attributable to
 
a change
 
in the
 
rate
 
of tax
 
on the
 
overall
 
net income
 
of the
Notifying Lender
 
(or a
 
parent company of
 
it) or
 
an item
 
compensated for by
 
any payment made
pursuant to Clause
 
(
Mandatory cost
) or an item covered by the indemnity for tax in Clause
(
Indemnities regarding
 
borrowing and
 
repayment of
 
Loan
) or
 
by
 
Clause
 
(
No set-off
 
or Tax
Deduction
) or a FATCA
 
Deduction.
For the purposes
 
of this Clause
 
(
Meaning of "increased costs"
) the Notifying Lender
 
may in
good faith
 
allocate or
 
spread costs
 
and/or losses among
 
its assets and
 
liabilities (or any
 
class
of its assets and liabilities) on such basis as it considers appropriate.
24.3
 
Notification to Borrowers of claim for increased costs
The Agent shall promptly notify
 
the Borrowers and the Security
 
Parties of the notice
 
which the
Agent received from the Notifying Lender under Xxxxxx
 
(
Increased costs
).
24.4
 
Payment of increased costs
The Borrowers shall pay to the Agent, on the
 
Agent's demand, for the account of
 
the Notifying
Lender
 
the
 
amounts
 
which
 
the
 
Agent
 
from
 
time
 
to
 
time
 
notifies
 
the
 
Borrowers
 
that
 
the
Notifying
 
Lender has
 
specified to
 
be
 
necessary to
 
compensate
 
the
 
Notifying Lender
 
for
 
the
increased cost.
24.5
 
Notice of prepayment
If
 
the
 
Borrowers
 
are
 
not
 
willing
 
to
 
continue
 
to
 
compensate
 
the
 
Notifying
 
Lender
 
for
 
the
increased cost under Clause
 
(
Payment of increased costs
), the Borrowers may give the Agent
not less than
 
14 days'
 
notice of its
 
intention to
 
prepay the Notifying
 
Xxxxxx's Contribution at
the end of an Interest Period.
24.6
 
Prepayment; termination of Commitment
A notice under Clause
 
(
Notice of prepayment
) shall be irrevocable; the Agent shall promptly
notify the Notifying Lender of the Borrowers'
 
notice of intended prepayment; and:
(a)
 
on the date
 
on which the
 
Agent serves
 
that notice, the
 
Commitment of the
 
Notifying Lender
shall be cancelled; and
(b)
 
on the date
 
specified in
 
its notice
 
of intended prepayment, the
 
Borrowers shall prepay (subject
to any Break Costs,
 
without premium or penalty)
 
the Notifying Xxxxxx's
 
Contribution, together
with accrued interest thereon
 
at the applicable rate
 
plus the Margin and the Mandatory
 
Cost
(if any).
24.7
 
Application of prepayment
Clause
 
(
Repayment and Prepayment
) shall apply in relation to the prepayment.
25
 
SET OFF
25.1
 
Application of credit balances
Each Creditor Party may without prior notice:
(a)
 
apply any
 
balance (whether
 
or
 
not then
 
due) which
 
at
 
any
 
time stands
 
to
 
the credit
 
of any
account
 
in the
 
name of
 
a Borrower
 
at
 
any
 
office
 
in any
 
country of
 
that Creditor
 
Party
 
in or
towards satisfaction of any sum then due from that Borrower to that Creditor Party under
 
any
of the Finance Documents; and
(b)
 
for that purpose:
(i)
 
break, or alter the maturity of, all or any part of a deposit of that Borrower;
(ii)
 
convert or translate all
 
or any part
 
of a deposit
 
or other credit
 
balance into Dollars;
 
and
(iii)
 
enter into
 
any other
 
transaction or make
 
any entry
 
with regard
 
to the credit
 
balance
which the Creditor Party concerned considers appropriate.
 
25.2
 
Existing rights unaffected
No Creditor
 
Party shall
 
be obliged
 
to exercise
 
any of
 
its rights
 
under Clause
 
(
Application of
credit balances
); and those rights shall be without prejudice and in addition to any right of set
off, combination of accounts, charge, lien or other right or remedy to which a Creditor
 
Party is
entitled (whether under the general law or any document).
25.3
 
Sums deemed due to a Lender
For the purposes of this
 
Clause
 
(
Set-off
), a sum payable by
 
the Borrowers to the Agent or the
Security Trustee
 
for distribution
 
to, or
 
for the
 
account of,
 
a Lender shall
 
be treated
 
as a sum
due to
 
that Lender;
 
and each Lender's
 
proportion of
 
a sum
 
so payable
 
for distribution
 
to, or
for the account of, the Lenders shall be treated as a sum due to such Lender.
25.4
 
No Security Interest
This Clause
 
(
Set-off
) gives
 
the Creditor
 
Parties a
 
contractual right
 
of set-off
 
only,
 
and does
not
 
create
 
any
 
equitable
 
charge
 
or
 
other
 
Security
 
Interest
 
over
 
any
 
credit
 
balance
 
of
 
any
Borrower.
 
26
 
TRANSFERS AND CHANGES IN FACILITY OFFICES
26.1
 
Transfer by Borrowers
No
 
Borrower
 
may,
 
without
 
the
 
consent
 
of
 
the
 
Agent,
 
given
 
on
 
the
 
instructions
 
of
 
all
 
the
Lenders transfer any of its rights, liabilities or obligations under any Finance Document.
26.2
 
Transfer by
 
a Lender
Subject to Clause
 
(
Effective Date of Transfer
 
Certificate
), a Lender (the "
Transferor
 
Lender
")
may at any time cause:
 
(a)
 
its rights in respect of all or part of its Contribution; or
(b)
 
its obligations in respect of all or part of its Commitment; or
(c)
 
a combination of (a) and (b),
to be
 
(in the
 
case of
 
its rights)
 
transferred
 
to,
 
or (in
 
the case
 
of its
 
obligations) assumed
 
by,
another bank or financial institution or a
 
trust, fund or other entity which is regularly engaged
in or established
 
for the purpose
 
of making,
 
purchasing or
 
investing in loans,
 
securities or
 
other
financial assets (a
 
"
Transferee
 
Lender
") by
 
delivering to
 
the Agent
 
a completed
 
certificate in
the form
 
set out
 
in
 
with any
 
modifications approved
 
or required
 
by the
 
Agent (a
 
"
Transfer
Certificate
") executed by the Transferor
 
Lender and the Transferee Lender.
 
However any rights and
 
obligations of the
 
Transferor Lender in its capacity as
 
Agent or Security
Trustee will have to
 
be dealt with separately in accordance with the Agency and Trust Deed.
A transfer pursuant to this Clause
 
shall be effected:
(i)
 
without the consent of the Borrowers:
(A)
 
following the occurrence of an Event of Default which is continuing; and/or
(B)
 
if such transfer is to another Lender or an affiliate of a Lender;
(ii)
 
in all other circumstances
 
with the consent of
 
the Borrowers (such
 
consent not to
 
be
unreasonably withheld
 
or delayed)
 
and the
 
Borrowers will
 
be deemed
 
to have
 
given
their consent five Business
 
Days following the request of
 
the Transferor Lender,
 
unless
the consent is expressly refused by the Borrowers within that time.
26.3
 
Transfer Certificate,
 
delivery and notification
As soon as reasonably practicable after a Transfer
 
Certificate is delivered to the Agent, it shall
(unless it has reason to believe that the Transfer
 
Certificate may be defective):
(a)
 
sign the Transfer Certificate on
 
behalf of itself, the
 
Borrowers, the Security
 
Parties, the Security
Trustee, each of the other Lenders and the Swap Bank;
(b)
 
on behalf of the
 
Transferee
 
Lender,
 
send to each Borrower
 
and each Security Party
 
letters or
faxes notifying them of the Transfer
 
Certificate and attaching a copy of it; and
(c)
 
send to the Transferee
 
Lender copies of the letters or faxes sent under paragraph
 
above,
but
 
the
 
Agent
 
shall
 
only
 
be
 
obliged
 
to
 
execute
 
a
 
Transfer
 
Certificate
 
delivered
 
to
 
it
 
by
 
the
Transferor
 
Lender
 
and
 
the
 
Transferee
 
Lender
 
once
 
it
 
is
 
satisfied
 
it
 
has
 
complied
 
with
 
all
necessary
 
"know
 
your
 
customer"
 
or
 
other
 
similar
 
checks
 
under
 
all
 
applicable
 
laws
 
and
regulations in relation to the transfer to that Transferee
 
Lender.
26.4
 
Effective Date of Transfer
 
Certificate
A Transfer Certificate becomes effective on
 
the date, if
 
any, specified in the
 
Transfer Certificate
as
 
its
 
effective
 
date,
 
Provided
 
that
 
it
 
is
 
signed
 
by
 
the
 
Agent
 
under
 
Clause
 
(
Transfer
Certificate, delivery and notification
) on or before that date.
26.5
 
No transfer without Transfer
 
Certificate
Except as provided in Clause
 
(
Security over Lenders' rights
), no assignment or transfer of any
right
 
or
 
obligation
 
of
 
a
 
Lender
 
under
 
any
 
Finance
 
Document
 
is
 
binding
 
on,
 
or
 
effective
 
in
relation
 
to,
 
any
 
Borrower,
 
any
 
Security Party,
 
the
 
Agent
 
or
 
the
 
Security Trustee
 
unless
 
it
 
is
effected, evidenced or perfected by a Transfer
 
Certificate.
 
26.6
 
Lender re-organisation; waiver of Transfer
 
Certificate
However,
 
if a Lender enters into any
 
merger,
 
de-merger or other reorganisation as a result
 
of
which all its rights or obligations vest in another person (the
 
"
successor
"), the Agent may,
 
if it
sees fit, by notice
 
to the successor and
 
the Borrowers and the Security
 
Trustee waive the need
for the execution and
 
delivery of a
 
Transfer Certificate; and, upon service
 
of the Agent's
 
notice,
the successor
 
shall become
 
a Lender
 
with the
 
same Commitment
 
and Contribution
 
as were
held by the predecessor Xxxxxx.
26.7
 
Effect of Transfer
 
Certificate
A Transfer
 
Certificate takes effect in accordance with English law as follows:
(a)
 
to the
 
extent
 
specified in
 
the Transfer
 
Certificate, all
 
rights and
 
interests
 
(present, future
 
or
contingent) which the Transferor
 
Lender has under or by virtue of the Finance
 
Documents are
assigned to
 
the Transferee
 
Lender absolutely,
 
free of
 
any
 
defects
 
in the
 
Transferor
 
Lender's
title and
 
of any
 
rights or
 
equities which
 
any
 
Borrower or
 
any
 
Security Party
 
had against
 
the
Transferor
 
Lender;
(b)
 
the
 
Transferor
 
Lender's
 
Commitment
 
is
 
discharged
 
to
 
the
 
extent
 
specified
 
in
 
the
 
Transfer
Certificate;
(c)
 
the
 
Transferee
 
Lender
 
becomes
 
a
 
Lender
 
with
 
the
 
Contribution
 
previously
 
held
 
by
 
the
Transferor
 
Lender and a Commitment of an amount specified in the Transfer Certificate;
(d)
 
the Transferee
 
Lender becomes bound by
 
all the provisions of
 
the Finance Documents which
are
 
applicable
 
to
 
the
 
Lenders
 
generally,
 
including
 
those
 
about
 
pro
 
rata
 
sharing
 
and
 
the
exclusion
 
of
 
liability
 
on
 
the
 
part
 
of,
 
and
 
the
 
indemnification
 
of,
 
the
 
Agent
 
and the
 
Security
Trustee
 
and,
 
to
 
the
 
extent
 
that
 
the
 
Transferee
 
Lender
 
becomes
 
bound
 
by
 
those
 
provisions
(other than those relating
 
to exclusion
 
of liability), the Transferor
 
Lender ceases to
 
be bound
by them;
(e)
 
any
 
part
 
of
 
the
 
Loan
 
which
 
the
 
Transferee
 
Lender
 
advances
 
after
 
the
 
Transfer
 
Certificate's
effective date
 
ranks in point
 
of priority and security in
 
the same way
 
as it would have
 
ranked
had it been advanced by the transferor,
 
assuming that any defects in the transferor's title and
any rights or equities of any Borrower or any Security Party against the Transferor
 
Lender had
not existed;
(f)
 
the Transferee
 
Xxxxxx becomes entitled to all the
 
rights under the Finance Documents which
are
 
applicable
 
to
 
the
 
Lenders
 
generally,
 
including
 
but
 
not
 
limited
 
to
 
those
 
relating
 
to
 
the
Majority
 
Lenders
 
and
 
those
 
under
 
Clause
 
(
Market
 
disruption
)
 
and
 
Clause
 
(
Fees
 
and
expenses
), and to
 
the extent
 
that the Transferee
 
Xxxxxx becomes entitled
 
to such rights,
 
the
Transferor
 
Xxxxxx ceases to be entitled to them; and
(g)
 
in respect of any breach of a warranty,
 
undertaking, condition or other provision of a Finance
Document or any
 
misrepresentation made
 
in or in
 
connection with a
 
Finance Document, the
Transferee
 
Lender shall be entitled to recover damages by reference
 
to the loss incurred by it
as
 
a
 
result
 
of
 
the
 
breach
 
or
 
misrepresentation,
 
irrespective
 
of
 
whether
 
the
 
original
 
Lender
would have incurred a loss of that kind or amount.
The rights
 
and equities
 
of any
 
Borrower or
 
any Security
 
Party referred
 
to above
 
include, but
are not limited to, any right of set off and any other kind of cross claim.
26.8
 
Maintenance of register of Lenders
During the Security
 
Period the Agent
 
shall maintain a
 
register in which
 
it shall record
 
the name,
Commitment, Contribution and administrative details (including the Facility
 
Office) from time
to time of
 
each Lender
 
holding a Transfer Certificate and the
 
effective date (in accordance
 
with
Clause
 
(
Effective Date of Transfer Certificate
)) of the Transfer Certificate; and the Agent shall
make
 
the
 
register
 
available
 
for
 
inspection
 
by
 
any
 
Lender,
 
the
 
Security
 
Trustee
 
and
 
the
Borrowers during normal
 
banking hours,
 
subject to receiving
 
at least three
 
Business Days'
 
prior
notice.
26.9
 
Reliance on register of Lenders
The entries
 
on that
 
register shall,
 
in the
 
absence of
 
manifest error, be conclusive
 
in determining
the identities
 
of the
 
Lenders and
 
the amounts
 
of their
 
Commitments and
 
Contributions and
the effective dates of Transfer
 
Certificates and may be relied upon by the Agent and the
 
other
parties to the Finance Documents for all purposes relating to the Finance Documents.
26.10
 
Authorisation of Agent to sign Transfer Certificates
Each Borrower, the Security Trustee, each Lender and
 
the Swap Bank irrevocably
 
authorise the
Agent to sign Transfer
 
Certificates on its behalf.
26.11
 
Registration fee
In respect of any
 
Transfer
 
Certificate, the Agent
 
shall be entitled to
 
recover a registration
 
fee
of $5,000 from the Transferor
 
Lender or (at the Agent's option) the Transferee Lender.
26.12
 
Sub-participation; subrogation assignment
A
 
Lender
 
may
 
sub
 
participate
 
all
 
or
 
any
 
part
 
of
 
its
 
rights
 
and/or
 
obligations
 
under
 
or
 
in
connection
 
with
 
the
 
Finance
 
Documents
 
without
 
the
 
consent
 
of,
 
or
 
any
 
notice
 
to,
 
any
Borrower,
 
any Security
 
Party,
 
the Agent
 
or the
 
Security Trustee
 
or any
 
other Creditor
 
Party;
and the
 
Lenders
 
may
 
assign, in
 
any
 
manner and
 
terms agreed
 
by
 
the Majority
 
Lenders,
 
the
Agent and the Security Trustee,
 
all or any part of
 
those rights to an insurer
 
or surety who has
become subrogated to them.
26.13
 
Disclosure of information
A
 
Lender
 
may
 
disclose
 
to
 
a
 
potential
 
Transferee
 
Lender
 
or
 
sub
 
participant
 
any
 
information
which the Lender
 
has received in
 
relation to
 
any Borrower,
 
any Security Party
 
or their affairs
under
 
or
 
in
 
connection
 
with
 
any
 
Finance
 
Document,
 
unless
 
the
 
information
 
is
 
clearly
 
of
 
a
confidential nature.
26.14
 
Change of Facility Office
A
 
Lender
 
may
 
change
 
its
 
Facility
 
Office
 
by
 
giving
 
notice
 
to
 
the
 
Agent
 
and
 
the
 
change
 
shall
become effective on the later of:
(a)
 
the date on which the Agent receives the notice; and
(b)
 
the date, if any, specified in the notice as the date on which the change will come into effect.
26.15
 
Notification
On receiving such a notice,
 
the Agent shall notify the
 
Borrowers and the Security Trustee; and,
until
 
the Agent
 
receives
 
such a
 
notice, it
 
shall be
 
entitled to
 
assume that
 
a Lender
 
is acting
through the Facility Office of which the Agent last had notice.
26.16
 
Security over Lenders' rights
In addition to the other rights provided to Lenders under this Clause
 
(
Transfers and changes
in Facility
 
Offices
), each
 
Lender may
 
without consulting
 
with or
 
obtaining
 
consent from
 
any
Borrower
 
or
 
any
 
Security
 
Party,
 
at
 
any
 
time
 
charge,
 
assign
 
or
 
otherwise
 
create
 
a
 
Security
Interest in or over (whether by way of collateral or otherwise) all or any of its rights under
 
any
Finance Document to secure obligations of that Lender including, without limitation:
(a)
 
any charge, assignment or other Security Interest to secure obligations to a federal
 
reserve or
central bank; and
 
(b)
 
in the
 
case of
 
any Lender
 
which is
 
a fund,
 
any charge,
 
assignment or
 
other Security
 
Interest
granted
 
to
 
any
 
holders
 
(or
 
trustee
 
or
 
representatives
 
of
 
holders)
 
of
 
obligations
 
owed,
 
or
securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Security Interest shall:
(i)
 
release a Lender
 
from any of
 
its obligations under
 
the Finance
 
Documents or
 
substitute
the beneficiary of the
 
relevant charge,
 
assignment or Security Interest
 
for the Lender
as a party to any of the Finance Documents; or
 
(ii)
 
require any
 
payments to
 
be made
 
by any
 
Borrower or
 
any Security
 
Party or
 
grant to
any person
 
any more
 
extensive rights
 
than those
 
required to
 
be made
 
or granted
 
to
the relevant Lender under the Finance Documents.
27
 
VARIATIONS
 
AND WAIVERS
 
27.1
 
Variations, waivers etc.
 
by Xxxxxxxx Xxxxxxx
Subject to Clause
 
(
Variations, waivers
 
etc. requiring agreement
 
of all Lenders
), a document
shall be effective to vary,
 
waive, suspend or limit any provision of a Finance Document, or any
Creditor
 
Party's
 
rights
 
or
 
remedies
 
under
 
such
 
a
 
provision
 
or
 
the
 
general
 
law,
 
only
 
if
 
the
document is signed, or specifically agreed to by fax, by
 
the Borrowers, by the Agent on behalf
of the Majority Lenders, by
 
the Agent and the
 
Security Trustee
 
in their own rights, and, if
 
the
document relates
 
to a
 
Finance Document
 
to which
 
a Security
 
Party is
 
party,
 
by that
 
Security
Party.
27.2
 
Variations, waivers etc. requiring agreement of all Lenders
However,
 
as
 
regards
 
the
 
following,
 
Clause
 
(
Variations,
 
waivers
 
etc.
 
by
 
Majority
 
Lenders
)
applies as if the words "by the Agent on behalf of the Majority Lenders"
 
were replaced by the
words "by or on behalf of every Lender and the Swap Bank":
(a)
 
a reduction in the Margin;
(b)
 
a postponement
 
to the
 
date for,
 
or a
 
reduction in
 
the amount
 
of,
 
any payment
 
of principal,
interest, fees or other sum payable under this Agreement;
(c)
 
an increase in any Xxxxxx's Commitment;
(d)
 
a change to the definition of "
Majority Lenders
";
(e)
 
a change to Clause
 
(
Position of Lenders, the Swap Bank and Majority Lenders
), or this Clause
 
(
Variations and waivers
);
(f)
 
any
 
release
 
of,
 
or
 
material
 
variation
 
to,
 
a
 
Security
 
Interest,
 
guarantee,
 
indemnity
 
or
subordination
 
arrangement set out in a Finance Document; and
(g)
 
any other
 
change or
 
matter as
 
regards
 
which this
 
Agreement or
 
another Finance
 
Document
expressly provides that each Lender's consent is required.
27.3
 
Exclusion of other or implied variations
Except for
 
a document which satisfies
 
the requirements of Clauses
 
(
Variations, waivers etc.
by Xxxxxxxx Xxxxxxx
),
 
(
Exclusion of
 
other or implied variations
) and
 
(
Changes
 
to reference
rates
),
 
no
 
document,
 
and
 
no
 
act,
 
course
 
of
 
conduct,
 
failure
 
or
 
neglect
 
to
 
act,
 
delay
 
or
acquiescence on the
 
part of the
 
Creditor Parties or any
 
of them (or
 
any person acting
 
on behalf
of
 
any
 
of
 
them) shall
 
result in
 
the Creditor
 
Parties
 
or any
 
of
 
them (or
 
any
 
person acting
 
on
behalf
 
of
 
any
 
of
 
them)
 
being
 
taken
 
to
 
have
 
varied,
 
waived,
 
suspended or
 
limited,
 
or
 
being
precluded (permanently or temporarily) from enforcing, relying on or exercising:
(a)
 
a provision of this Agreement or another Finance Document; or
(b)
 
an Event of Default; or
 
(c)
 
a breach by a
 
Borrower or a Security Party
 
of an obligation under a
 
Finance Document or the
general law; or
(d)
 
any right or remedy conferred by any Finance Document or by the general law,
and there shall not be implied
 
into any Finance Document any term or condition requiring
 
any
such
 
provision
 
to
 
be
 
enforced,
 
or
 
such
 
right
 
or
 
remedy to
 
be exercised,
 
within a
 
certain
 
or
reasonable time.
27.4
 
Changes to reference rates
(a)
 
If
 
a
 
Published
 
Rate
 
Replacement
 
Event
 
has
 
occurred
 
in
 
relation
 
to
 
any
 
Published
 
Rate,
 
any
amendment or waiver which relates to:
(i)
 
providing for the use of
 
a Replacement Reference Rate in place of
 
that Published Rate;
and
(ii)
 
(A)
 
aligning any
 
provision of
 
any Finance
 
Document to
 
the use
 
of that
 
Replacement
Reference Rate;
(B)
 
enabling that
 
Replacement Reference
 
Rate
 
to
 
be used
 
for
 
the calculation
 
of
interest
 
under
 
this
 
Agreement
 
(including,
 
without
 
limitation,
 
any
consequential changes
 
required to
 
enable that
 
Replacement Reference
 
Rate
to be used for the purposes of this Agreement);
(C)
 
implementing market
 
conventions applicable
 
to that Replacement
 
Reference
Rate;
(D)
 
providing for
 
appropriate fallback
 
(and market
 
disruption) provisions for
 
that
Replacement Reference Rate; or
(E)
 
adjusting
 
the
 
pricing
 
to
 
reduce
 
or
 
eliminate,
 
to
 
the
 
extent
 
reasonably
practicable,
 
any
 
transfer
 
of
 
economic
 
value
 
from
 
one
 
Party
 
to
 
another
 
as
 
a
result
 
of
 
the
 
application
 
of
 
that
 
Replacement
 
Reference
 
Rate
 
(and
 
if
 
any
adjustment
 
or
 
method
 
for
 
calculating
 
any
 
adjustment
 
has
 
been
 
formally
designated,
 
nominated
 
or
 
recommended
 
by
 
the Relevant
 
Nominating
 
Body,
the
 
adjustment
 
shall
 
be
 
determined
 
on
 
the
 
basis
 
of
 
that
 
designation,
nomination or recommendation),
may be made with the consent of the Agent (acting on the instructions of the Majority
Lenders) and the Borrowers.
(b)
 
If any Lender fails to
 
respond to a request for an
 
amendment or waiver described
 
in paragraph
 
above
,
or for any other vote of
 
Lenders in relation to, paragraph
 
above within five Business
Days (or such longer time
 
period in relation to
 
any request which the Borrowers
 
and the Agent
may agree) of that request being made:
(i)
 
its
 
Commitment
 
or
 
its
 
participation
 
in
 
the
 
Loan
 
(as
 
the
 
case
 
may
 
be)
 
shall
 
not
 
be
included for
 
the purpose of
 
calculating the Total
 
Commitments or the
 
amount of the
Loan
 
(as
 
applicable)
 
when
 
ascertaining
 
whether
 
any
 
relevant
 
percentage
 
of
 
Total
Commitments or the
 
aggregate of
 
participations in the
 
Loan (as applicable)
 
has been
obtained to approve that request; and
(ii)
 
its status as a Lender shall be disregarded for the purpose of ascertaining
 
whether the
agreement
 
of
 
any
 
specified
 
group
 
of
 
Lenders
 
has
 
been
 
obtained
 
to
 
approve
 
that
request.
(c)
 
In this Clause
"
Published Rate
" means:
(a)
 
SOFR; or
(b)
 
Term SOFR for
 
any Quoted Tenor.
"
Published Rate Replacement Event
" means, in relation to a Published Rate:
 
(a)
 
the methodology,
 
formula or other means of determining that
 
Published Rate has, in
the opinion of the Majority Xxxxxxx and the Borrowers, materially changed;
(b)
 
(i)
 
(A)
 
the
 
administrator
 
of
 
that
 
Published
 
Rate
 
or
 
its
 
supervisor
 
publicly
announces that such administrator is insolvent; or
(B)
 
information is published
 
in any order, decree, notice,
 
petition or filing,
however
 
described,
 
of
 
or
 
filed
 
with
 
a
 
court,
 
tribunal,
 
exchange,
regulatory
 
authority
 
or
 
similar
 
administrative,
 
regulatory
 
or
 
judicial
body
 
which
 
reasonably
 
confirms
 
that
 
the
 
administrator
 
of
 
that
Published Rate is insolvent,
provided that,
 
in each case,
 
at that
 
time, there
 
is no
 
successor administrator
to continue to provide that Published Rate;
(ii)
 
the administrator of that Published
 
Rate publicly announces
 
that it has ceased
or will cease
 
to provide
 
that Published Rate
 
permanently or indefinitely
 
and,
at that
 
time, there
 
is no
 
successor administrator
 
to continue
 
to provide
 
that
Published Rate;
(iii)
 
the supervisor of the administrator of that Published Rate publicly announces
that
 
such
 
Published
 
Rate
 
has
 
been
 
or
 
will
 
be
 
permanently
 
or
 
indefinitely
discontinued; or
 
(iv)
 
the administrator of that Published Rate or its supervisor
 
announces that that
Published Rate may no longer be used; or
(c)
 
the administrator of
 
that Published
 
Rate (or the
 
administrator of an
 
interest rate which
is a constituent
 
element of that
 
Published Rate) determines
 
that that Published
 
Rate
should be calculated in accordance with its
 
reduced submissions or other contingency
or
 
fallback
 
policies
 
or
 
arrangements
 
and
 
the
 
circumstance(s)
 
or
 
event(s)
 
leading
 
to
such determination are
 
not (in
 
the opinion
 
of the Majority
 
Lenders and the
 
Borrowers)
temporary; or
(d)
 
in
 
the
 
opinion
 
of
 
the
 
Majority
 
Lenders
 
and
 
the
 
Borrowers,
 
that
 
Published
 
Rate
 
is
otherwise
 
no
 
longer
 
appropriate
 
for
 
the
 
purposes of
 
calculating
 
interest
 
under
 
this
Agreement.
"
Quoted Tenor
" means, in
 
relation to Term SOFR, any period for which
 
that rate is customarily
displayed on the relevant page or screen of an information service.
"
Replacement Reference Rate
" means a reference rate which is:
(a)
 
formally designated, nominated or recommended as the replacement for a Published
Rate by:
(i)
 
the
 
administrator
 
of
 
that
 
Published
 
Rate
 
(provided
 
that
 
the
 
market
 
or
economic
 
reality
 
that
 
such
 
reference
 
rate
 
measures
 
is
 
the
 
same
 
as
 
that
measured by that Published Rate); or
(ii)
 
any Relevant Nominating Body,
and if replacements have,
 
at the relevant
 
time, been formally designated, nominated
or recommended under
 
both paragraphs, the
 
"
Replacement Reference
 
Rate
" will be
the replacement under paragraph (ii) above;
(b)
 
in the
 
opinion of
 
the Majority
 
Lenders and
 
the Borrowers,
 
generally accepted
 
in the
international
 
or
 
any
 
relevant
 
domestic
 
syndicated
 
loan
 
markets
 
as
 
the
 
appropriate
successor or alternative to a Published Rate; or
(c)
 
in the opinion of
 
the Majority Lenders and
 
the Borrowers, an appropriate successor
 
or
alternative to a Published Rate.
28
 
NOTICES
 
28.1
 
General
Unless
 
otherwise
 
specifically
 
provided,
 
any
 
notice
 
under
 
or
 
in
 
connection
 
with any
 
Finance
Document shall be given
 
by letter or
 
fax and references
 
in the Finance Documents to
 
written
notices,
 
notices
 
in
 
writing
 
and
 
notices
 
signed
 
by
 
particular
 
persons
 
shall
 
be
 
construed
accordingly.
28.2
 
Addresses for communications
A notice by letter or fax shall be sent:
(a)
 
to the Borrowers:
 
c/o Approved Manager
00 Xxxxxxxx Xxxxxx
175 64 Paleo Faliro
Athens
Greece
E-mail: xxxxxxx@xxxxxxxxxxxxxxxxxxxxx.xxx
(b)
 
to a Lender:
 
at the address below its name in
 
or (as the case
 
may require) in the
 
relevant Transfer
 
Certificate.
(c)
 
to the Swap Bank:
 
c/o
 
Nordea Danmark, Filial af Nordea Bank Abp, Finland
7288 Derivatives Services
PO box 850 DK-0900 Copenhagen K, Denmark
Telephone number: x00 00 00 00 00
E-mail: xxx.xxxxxx@xxxxxx.xxx
 
(d)
 
to the Lead Arranger,
 
Agent
 
or the Security Trustee:
 
Essendropsgate 7
0368 Oslo
Norway
Loan administration matters:
Fax No: x00 00000000
Attn: Structured Loan & Collateral Services NO
or to such other address as the relevant
 
party may notify the Agent or,
 
if the relevant party is
the Agent or the
 
Security Trustee, the Borrowers, the Lenders, the Swap
 
Bank and the
 
Security
Parties.
28.3
 
Effective date of notices
Subject to Clauses
 
(
Service outside business hours
) and
 
(
Illegal notices
):
(a)
 
a notice which is
 
delivered personally or posted
 
shall be deemed to
 
be served, and shall take
effect, at the time when it is delivered; and
(b)
 
a notice which is sent by fax shall be deemed to be served, and shall take effect,
 
2 hours after
its transmission is completed.
 
28.4
 
Service outside business hours
However,
 
if under Clause
 
(
Effective date of notices
) a notice would be deemed to be served:
(a)
 
on a day which is not a business day in the place of receipt; or
(b)
 
on such a business day, but after five p.m. local time,
the notice shall (subject to Clause
 
(
Illegible notices
)) be deemed to be served, and shall take
effect, at 9 a.m. on the next day which is such a business day.
28.5
 
Illegible notices
Clauses
 
(
Effective date
 
of notices
) and
 
(
Service outside business hours
) do not apply
 
if the
recipient
 
of
 
a notice
 
notifies the
 
sender within
 
one hour
 
after
 
the time
 
at which
 
the notice
would otherwise be deemed to be served that
 
the notice has been received in a form which is
illegible in a material respect.
28.6
 
Valid notices
A notice under
 
or in connection
 
with a Finance
 
Document shall not
 
be invalid
 
by reason that
its contents or
 
the manner
 
of serving
 
it do
 
not comply
 
with the
 
requirements of this
 
Agreement
or, where appropriate,
 
any other Finance Document under which it is served if:
(a)
 
the failure to serve it in accordance with the requirements of this
 
Agreement or other Finance
Document,
 
as
 
the
 
case
 
may
 
be,
 
has
 
not
 
caused
 
any
 
party
 
to
 
suffer
 
any
 
significant
 
loss
 
or
prejudice; or
(b)
 
in the case
 
of incorrect
 
and/or incomplete
 
contents, it
 
should have
 
been reasonably clear
 
to
the party on which the notice was served
 
what the correct or missing particulars should
 
have
been.
28.7
 
Electronic communication
Any communication
 
to be
 
made between
 
the Agent
 
and a
 
Lender or
 
Swap Bank
 
under or
 
in
connection with the
 
Finance Documents may
 
be made by
 
electronic mail or
 
other electronic
means, if the Agent and the relevant Creditor Party:
(a)
 
agree that, unless and until
 
notified to the contrary,
 
this is to be an
 
accepted form of
communication;
(b)
 
notify
 
each
 
other
 
in
 
writing
 
of
 
their
 
electronic
 
mail
 
address
 
and/or
 
any
 
other
information required to enable the sending and receipt of
 
information by that means;
and
(c)
 
notify
 
each
 
other
 
of
 
any
 
change
 
to
 
their
 
respective
 
addresses
 
or
 
any
 
other
 
such
information supplied to them.
Any electronic
 
communication made between
 
the Agent
 
and a Lender
 
or the Swap
 
Bank will
be effective
 
only when
 
actually received
 
in readable
 
form
 
and, in
 
the case
 
of any
 
electronic
communication made by a Creditor Party to the Agent, only
 
if it is addressed in such
 
a manner
as the Agent shall specify for this purpose.
28.8
 
English language
Any notice under or in connection with a Finance Document shall be in English.
28.9
 
Meaning of "notice"
In
 
this
 
Clause
 
(
Notices
),
 
"
notice
"
 
includes
 
any
 
demand,
 
consent,
 
authorisation,
 
approval,
instruction, waiver or other communication.
 
29
 
JOINT AND SEVERAL LIABILITY
 
29.1
 
General
All liabilities and obligations of the Borrowers
 
under this Agreement shall, whether expressed
to be so
 
or not, be
 
several and, if
 
and to the
 
extent consistent
 
with Clause
 
(
No impairment
of Borrower's obligations
), joint.
29.2
 
No impairment of Xxxxxxxx's obligations
The liabilities and obligations of a Borrower shall not be impaired by:
(a)
 
this
 
Agreement
 
being
 
or
 
later
 
becoming void,
 
unenforceable
 
or
 
illegal
 
as
 
regards
 
any
 
other
Borrower;
(b)
 
any Lender, the Swap Bank or the Security Trustee entering into
 
any rescheduling, refinancing
or other arrangement of any kind with any other Borrower;
(c)
 
any Lender, the Swap
 
Bank or
 
the Security
 
Trustee releasing any other
 
Borrower or
 
any Security
Interest created by a Finance Document; or
(d)
 
any combination of the foregoing.
29.3
 
Principal debtors
Each Borrower
 
declares that it
 
is and will,
 
throughout the
 
Security Period, remain
 
a principal
debtor
 
for
 
all
 
amounts
 
owing
 
under
 
this
 
Agreement
 
and
 
the
 
Finance
 
Documents
 
and
 
no
Borrower
 
shall
 
in
 
any
 
circumstances
 
be
 
construed
 
to
 
be
 
a
 
surety
 
for
 
the obligations
 
of
 
any
other Borrower under this Agreement.
29.4
 
Subordination
Subject to Clause
 
(
Borrower's required action
), during the
 
Security Period, no Borrower shall:
(a)
 
claim any
 
amount which
 
may
 
be due
 
to it
 
from any
 
other Borrower
 
whether in
 
respect of
 
a
payment
 
made,
 
or
 
matter
 
arising
 
out
 
of,
 
this
 
Agreement
 
or
 
any
 
Finance
 
Document,
 
or
 
any
matter unconnected with this Agreement or any Finance Document; or
(b)
 
take or
 
enforce any
 
form of
 
security from
 
any other
 
Borrower for
 
such an amount,
 
or in
 
any
other way seek to
 
have recourse in
 
respect of such an amount
 
against any asset of
 
any other
Borrower; or
(c)
 
set off such an amount against any sum due from it to any other Borrower; or
(d)
 
prove or
 
claim for such
 
an amount in
 
any liquidation, administration,
 
arrangement or similar
procedure involving any other Borrower or other Security Party; or
(e)
 
exercise or assert any combination of the foregoing.
29.5
 
Borrower's required action
If during the Security Period, the Agent, by notice to a Borrower, requires it to take any action
referred to in paragraphs
 
to
 
of Clause
 
(
Subordination
), in relation to any other Borrower,
that Xxxxxxxx shall take that action as soon as practicable after receiving the Agent's notice.
30
 
SUPPLEMENTAL
30.1
 
Rights cumulative, non-exclusive
The rights and remedies which the Finance Documents give to each Creditor Party are:
(a)
 
cumulative;
(b)
 
may be exercised as often as appears expedient; and
(c)
 
shall not, unless
 
a Finance Document explicitly
 
and specifically states
 
so, be taken
 
to exclude
or limit any right or remedy conferred by any law.
30.2
 
Severability of provisions
If
 
any
 
provision
 
of
 
a Finance
 
Document
 
is or
 
subsequently
 
becomes void,
 
unenforceable
 
or
illegal, that shall not affect the validity, enforceability or legality of the
 
other provisions of that
Finance Document or of the provisions of any other Finance Document.
30.3
 
Counterparts
A Finance Document may be executed in any number of counterparts.
30.4
 
Third Party rights
A person who is not a Party has no right under the Contracts (Rights
 
of Third Parties) Act 1999
to enforce or to enjoy the benefit of any term of this Agreement.
31
 
BAIL-IN
Notwithstanding
 
any
 
other
 
term
 
of
 
any
 
Finance
 
Document
 
or
 
any
 
other
 
agreement,
arrangement
 
or
 
understanding
 
between
 
the
 
parties
 
to
 
a
 
Finance
 
Document,
 
each
 
Party
acknowledges and
 
accepts that
 
any liability
 
of any
 
party to
 
a Finance
 
Document under
 
or in
connection
 
with
 
the
 
Finance
 
Documents
 
may
 
be
 
subject
 
to
 
Bail-In
 
Action
 
by
 
the
 
relevant
Resolution Authority and acknowledges and accepts to be bound by the effect of:
(a)
 
any Bail-In Action in relation to any such liability, including (without limitation):
(i)
 
a
 
reduction,
 
in
 
full
 
or
 
in
 
part,
 
in
 
the
 
principal
 
amount,
 
or
 
outstanding
 
amount
 
due
(including any accrued but unpaid interest) in respect of any such liability;
(ii)
 
a
 
conversion
 
of
 
all, or
 
part of,
 
any
 
such
 
liability into
 
shares
 
or
 
other
 
instruments
 
of
ownership that may be issued to, or conferred on, it; and
(iii)
 
a cancellation of any such liability; and
(b)
 
a variation of any term of any Finance Document to the extent
 
necessary to give effect to any
Bail-In Action in relation to any such liability.
32
 
LAW AND JURISDICTION
 
32.1
 
English law
This Agreement and
 
any non-contractual obligations arising
 
out of or
 
in connection
 
with it shall
be governed by, and construed in accordance with, English law.
32.2
 
Exclusive English jurisdiction
Subject to Clause
 
(
Choice of forum for the exclusive benefit of Creditor Parties
), the courts of
England shall have exclusive jurisdiction to settle any Dispute.
32.3
 
Choice of forum for the exclusive benefit of Creditor Parties
Clause
 
(
Exclusive English jurisdiction
) is for the exclusive benefit of the Creditor Parties, each
of which reserves the rights:
(a)
 
to commence
 
proceedings in
 
relation to
 
any Dispute
 
in the courts
 
of any
 
country other
 
than
England and which have
 
or claim jurisdiction to that Dispute; and
(b)
 
to
 
commence such
 
proceedings in
 
the courts
 
of
 
any such
 
country or
 
countries concurrently
with or in addition to proceedings in England or without
 
commencing proceedings in England.
No Borrower
 
shall commence
 
any proceedings
 
in any
 
country other
 
than England in
 
relation
to a Dispute.
32.4
 
Process agent
Each Borrower irrevocably appoints Hill Xxxxxxxxx Services
 
(London) Ltd at its registered office
for
 
the time
 
being
 
at
 
The Broadgate
 
Tower,
 
20
 
Primrose
 
Street,
 
London
 
EC2A
 
2EW,
 
United
Kingdom, to act as its
 
agent to receive and accept on
 
its behalf any process or
 
other document
relating to any proceedings in the English courts which are connected with a Dispute.
32.5
 
Creditor Party rights unaffected
Nothing in
 
this Clause
Law and
 
Jurisdiction
) shall
 
exclude or limit
 
any right
 
which any
 
Creditor
Party
 
may
 
have
 
(whether
 
under
 
the
 
law
 
of
 
any
 
country,
 
an
 
international
 
convention
 
or
otherwise) with regard to
 
the bringing of proceedings, the service of process,
 
the recognition
or enforcement of a judgment or any similar or related matter in any jurisdiction.
32.6
 
Meaning of "proceedings" and "Dispute"
In this Clause
 
(
Law and Jurisdiction
), "
proceedings
" means proceedings
 
of any kind,
 
including
an
 
application
 
for
 
a
 
provisional
 
or
 
protective
 
measure
 
and
 
a
 
"
Dispute
"
 
means
 
any
 
dispute
arising
 
out
 
of
 
or
 
in
 
connection
 
with
 
this
 
Agreement
 
(including
 
a
 
dispute
 
relating
 
to
 
the
existence, validity or termination of this Agreement) or any non-contractual obligation arising
out of or in connection with this Agreement.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1
LENDERS AND COMMITMENTS
 
Lender
Facility Office
Commitment
(US Dollars)
Nordea Bank Abp, filial i Norge
Essendrops
 
gate
 
7,
 
Postboks
1166,
 
Sentrum,
 
0107
 
Oslo
920058817
 
MVA
Norway
$200,000,000
 
SCHEDULE 2
DRAWDOWN NOTICE
To:
 
Nordea Bank Abp, filial i Norge
Xxxxxxxxxx xxxx 0, Postboks
 
1166, Sentrum, 0107 Oslo
 
920058817 MVA,
 
Norway
Attention:
 
[Loans Administration]
 
[●] 2022
DRAWDOWN NOTICE
1
 
We refer
 
to the
 
loan agreement (the
 
"
") dated
 
[●] 2022 and
 
made between
ourselves, as
 
joint and
 
several Borrowers,
 
the Lenders referred
 
to therein,
 
and yourselves
 
as
Agent,
 
as
 
Security
 
Trustee,
 
as
 
Bookrunner
 
[and]
 
as
 
Lead
 
Arranger
 
and
 
as
 
Swap
 
Bank
 
in
connection with a
 
facility of up
 
to US$200,000,000.
 
Terms defined in the
 
Loan Agreement have
their defined meanings when used in this Drawdown Notice.
2
 
We request to borrow Tranche
 
[A]/[B]/[C]/[D]/[E]/[F]/[G]/[H]/[I] as follows:
(a)
 
Amount: US$[●];
(b)
 
Drawdown Date: [●] 2022;
(c)
 
[Duration of the first Interest
 
Period shall be [one][three] Months;] and
(d)
 
Payment instructions:
 
account in our name and numbered [●] with [●] of [●].
3
 
We represent and warrant that:
(a)
 
the representations and warranties in clause 10 (
Representations and Warranties
) of the Loan
Agreement would remain
 
true and not misleading
 
if repeated on
 
the date of
 
this notice with
reference to the circumstances now existing; and
(b)
 
no Event of Default
 
or Potential Event of Default
 
has occurred or
 
will result from
 
the borrowing
of Tranche [A]/[B]/[C]/[D]/[E]/[F]/[G]/[H]/[I].
4
 
This notice cannot be revoked without the prior consent of the Majority Lenders.
[Name of Signatory]
Director
for and on behalf of
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
 
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
 
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
EJITE SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
 
INC.
NAMORIK SHIPPING COMPANY INC.
 
SCHEDULE 3
CONDITION PRECEDENT DOCUMENTS
 
PART A
The following are the documents referred to in Clause
Documents, fees and no default
).
1
 
A duly executed original of:
(a)
 
this Agreement;
(b)
 
the Corporate Guarantee;
(c)
 
the Agency and Trust Deed;
(d)
 
the Master Agreement;
(e)
 
the Shares Pledges;
(f)
 
the Master Agreement Assignment; and
(g)
 
the Accounts Pledges.
2
 
Copies of the certificate of incorporation and constitutional documents of each Borrower, the
Corporate Guarantor and any other Security Party.
3
 
Copies of
 
resolutions of
 
the shareholders
 
and directors
 
of each
 
Borrower and
 
each Security
Party (other
 
than the Corporate
 
Guarantor) authorising the
 
execution of
 
each of the
 
Finance
Documents
 
to
 
which
 
that
 
Borrower
 
or
 
that
 
Security
 
Party
 
is
 
a
 
party
 
and,
 
in
 
the
 
case
 
of
 
a
Borrower,
 
authorising named officers to give the Drawdown Notice.
4
 
Copies of resolutions of the executive
 
committee of the Corporate
 
Guarantor authorising the
execution of each of the Finance Documents to which it is a party.
5
 
The original
 
of any
 
power of
 
attorney under which
 
any Finance
 
Document is
 
executed on behalf
of a Borrower,
 
the Corporate Guarantor or any other Security Party.
6
 
Copies
 
of
 
all
 
consents
 
which
 
any
 
Borrower,
 
the
 
Corporate
 
Guarantor
 
or
 
any
 
Security
 
Party
requires to enter into, or make any
 
payment under, any
 
Finance Document.
7
 
The originals of any mandates or other
 
documents required in connection with the
 
opening or
operation of the Earnings Accounts.
8
 
Such documents as the Agent may require for its "Know your customer"
 
and other customary
money laundering and sanctions and counter-terrorist financing checks.
9
 
Documentary evidence that
 
the agent for service
 
of process named
 
in Clause
 
(
Process Agent)
has accepted its appointment.
10
 
Favourable
 
legal opinions
 
from lawyers
 
appointed by
 
the Agent
 
on such
 
matters
 
concerning
the laws of Xxxxxxxx Islands and such other relevant jurisdictions as the Agent may require.
11
 
If
 
the
 
Agent
 
so
 
requires,
 
in
 
respect
 
of
 
any
 
of
 
the
 
documents
 
referred
 
to
 
above,
 
a
 
certified
English translation prepared by a translator approved by the Agent.
12
 
A copy
 
of the
 
Escrow Agreement
 
together with
 
any amendments,
 
supplements, side
 
letters,
confirmation
 
letters
 
and
 
other
 
ancillaries
 
thereto
 
and,
 
if
 
applicable,
 
a
 
copy
 
of
 
any
 
other
agreement relating to the release of the Balance Funds (as defined in the relevant MOA).
 
 
PART B
The
 
following
 
are
 
the
 
documents
 
referred
 
to
 
in
 
Clause
 
(
Documents,
 
fees
 
and no
 
default
)required
before the
 
Drawdown Date.
 
In
 
of this
 
(
Condition precedent documents
), the following
 
definitions
have the following meanings:
(a)
 
"
Relevant Borrower
" means the Borrower which is the owner of the Relevant Ship; and
(b)
 
"
Relevant Ship
" means the Ship which is to be financed by using the
 
proceeds of the Tranche
being drawn on the Drawdown Date.
1
 
A duly executed original of the Mortgage and the General Assignment
 
relating to the Relevant
Ship and any Charterparty Assignment.
2
 
Documentary evidence that:
(a)
 
the Relevant
 
Ship has been
 
unconditionally delivered by
 
the relevant
 
Seller to,
 
and accepted
by, Re
 
levant Borrower under the relevant MOA;
(b)
 
the full purchase price
 
payable and all
 
other sums due
 
to the relevant Seller
 
under the
 
relevant
MOA, other
 
than the
 
sums to
 
be financed
 
pursuant to the
 
Advance under
 
the relevant Tranche,
have been
 
paid to the
 
relevant Seller,
 
including without limitation
 
such evidence of
 
payment
of
 
the
 
relevant
 
Share
 
Consideration
 
(as
 
defined
 
in
 
the
 
relevant
 
MOA)
 
as
 
stipulated
 
in
 
the
Master Agreement (as defined in the relevant MOA);
(c)
 
the
 
Relevant
 
Ship
 
is
 
definitively
 
and
 
permanently
 
registered
 
in
 
the
 
name
 
of
 
the
 
Relevant
Borrower under an Approved Flag;
(d)
 
the Relevant
 
Ship is in
 
the absolute and
 
unencumbered ownership of
 
the Relevant
 
Borrower
save as contemplated by the Finance Documents;
(e)
 
the Relevant Ship maintains the class specified in Clause
 
(
Repair and classification
);
(f)
 
the Mortgage
 
relating to
 
the Relevant
 
Ship has been
 
duly registered
 
or recorded
 
against the
Relevant Ship as a valid first priority or, as the case may be, preferred statutory ship mortgage
in accordance with the laws of the applicable Approved Flag State; and
(g)
 
the
 
Relevant
 
Ship
 
is
 
insured
 
in
 
accordance
 
with
 
the
 
provisions
 
of
 
this
 
Agreement
 
and
 
all
requirements therein in respect of insurances have been complied with.
3
 
Documents establishing that the Relevant Ship will, as from the Drawdown Date, be managed
by the Approved Manager on terms acceptable to the Lenders, together with:
(a)
 
a
 
copy
 
of
 
the
 
Management
 
Agreement
 
and
 
the
 
Manager's
 
Undertaking
 
duly
 
signed
 
by
 
the
Approved Manager; and
(b)
 
copies of the Approved Manager's Document of Compliance and of the Relevant Ship's Safety
Management Certificate (together with
 
any other details
 
of the applicable
 
safety management
system which the Agent requires) and ISSC.
3.1
 
Copies
 
of
 
the
 
MOA,
 
the
 
Master
 
Agreement
 
(as
 
defined
 
in
 
the
 
MOA)
 
and
 
of
 
all
 
documents
signed or issued by the Relevant Borrower or the relevant Seller (or both of them) under or in
connection with it.
3.2
 
Such documentary evidence as
 
the Agent and its
 
legal advisers may
 
require in relation
 
to the
due authorisation and execution of the MOA by each of the parties to it.
4
 
Favourable
 
legal opinions
 
from lawyers
 
appointed by
 
the Agent
 
on such
 
matters
 
concerning
the laws of
 
Xxxxxxxx Islands, the Approved
 
Flag State and such
 
other relevant jurisdictions
 
as
the Agent may require.
 
5
 
At the cost
 
of the Borrowers
 
a favourable
 
opinion from an independent insurance
 
consultant
acceptable to
 
the Agent on
 
such matters
 
relating to
 
the insurances
 
for the
 
Ship as the
 
Agent
may require.
6
 
Two valuations
 
of each Ship addressed to the Agent and
 
dated not earlier than 40 days before
the
 
Drawdown
 
Date
 
and
 
prepared
 
in
 
accordance
 
with Clause
 
(
Valuation
 
of
 
ships
)
 
by
 
two
Approved
 
Brokers
 
(each
 
selected
 
by
 
the
 
Borrowers
 
and
 
approved
 
by
 
the
 
Agent)
 
which
evidences compliance with Clause
 
(
Minimum required security cover
) immediately after the
Drawdown Date.
7
 
If
 
the
 
Agent
 
so
 
requires,
 
in
 
respect
 
of
 
any
 
of
 
the
 
documents
 
referred
 
to
 
above,
 
a
 
certified
English translation prepared by a translator approved by the Agent.
Each
 
of
 
the
 
documents
 
specified
 
in
 
paragraphs
 
2,
 
3,
 
5
 
and
 
9
 
of
 
and
 
every
 
other
 
copy
 
document
delivered
 
under
 
this
 
Schedule
 
shall
 
be
 
certified
 
as
 
a
 
true
 
and
 
up
 
to
 
date
 
copy
 
by
 
a
 
director
 
or
 
the
secretary (or equivalent officer) of each Borrower or a qualified lawyer.
 
SCHEDULE 4
TRANSFER CERTIFICATE
 
The Transferor
 
and the
 
Transferee
 
accept exclusive
 
responsibility for
 
ensuring that
 
this Certificate
and the transaction to which it relates comply with all legal and regulatory requirements applicable
to them respectively.
To:
 
Nordea Bank Abp, filial i Norge for itself and for and on behalf of the Borrower, [each Security
Party],
 
the
 
Security
 
Trustee,
 
each
 
Lender
 
and
 
the
 
Swap
 
Bank,
 
as
 
defined
 
in
 
the
 
Loan
 
Agreement
referred to below.
[●]
1
 
This
 
Certificate
 
relates
 
to
 
a
 
Loan
 
Agreement
 
(the
 
"
Agreement
")
 
dated
 
[●]
 
2022
 
and
 
made
between (1)
 
Manra
 
Shipping Company
 
Inc., Jabwot
 
Shipping Company
 
Inc., Arorae
 
Shipping
Company Inc., Tamana
 
Shipping Company Inc.,
 
Beru Shipping Company
 
Inc., Bonriki Shipping
Company
 
Inc.,
 
Ejite
 
Shipping
 
Company
 
Inc.,
 
Taongi
 
Shipping
 
Company
 
Inc.
 
and
 
Namorik
Shipping Company
 
Inc. as
 
joint and
 
several
 
borrowers
 
(the
 
"
Borrowers
"),
 
(2) the
 
banks
 
and
financial institutions
 
named therein, (3)
 
Nordea Bank
 
Abp, filial i
 
Norge as
 
Agent, (4)
 
Nordea
Bank Abp, filial i
 
Norge as Security Trustee, (5) Nordea
 
Bank Abp, filial i
 
Norge as Lead Arranger
[and] (6) Nordea Bank
 
Abp, filial I
 
Norge as Bookrunner and
 
(7) Nordea Bank Abp
 
as Swap Bank
for a loan facility of up to US$200,000,000.
2
 
In this Certificate,
 
terms defined in
 
the Agreement shall,
 
unless the contrary
 
intention appears,
have the same meanings when used in this Certificate and:
"
Relevant Parties
" means the
 
Agent, the Borrower, [each Security Party], the
 
Security Trustee,
each Lender and the Swap Bank;
"
Transferor
" means [full name] of [facility office]; and
"
Transferee
" means [full name] of [facility office].
3
 
The effective
 
date of
 
this Certificate
 
is [●],
Provided that
 
this Certificate
 
shall not
 
come into
effect unless it is signed by the Agent on or before that date.
4
 
[The Transferor
 
assigns to the Transferee absolutely all rights and interests (present, future or
contingent) which the Transferor has as Lender under
 
or by virtue of
 
the Agreement and every
other
 
Finance
 
Document
 
in
 
relation
 
to
 
[●]
 
per
 
cent.
 
of
 
its
 
Contribution,
 
which
 
percentage
represents $[●].]
5
 
[By virtue of this Transfer Certificate and Clause
 
(
Transfers and changes in Facility Offices
) of
the
 
Loan
 
Agreement,
 
the
 
Transferor
 
is
 
discharged
 
[entirely
 
from
 
its
 
Commitment
 
which
amounts to $[●]
 
[from [●] per
 
cent. of its
 
Commitment, which
 
percentage represents $[●]] and
the Transferee
 
acquires a Commitment of $[●].]
6
 
The
 
Transferee
 
undertakes
 
with
 
the
 
Transferor
 
and
 
each
 
of
 
the
 
Relevant
 
Parties
 
that
 
the
Transferee
 
will observe
 
and perform
 
all the obligations
 
under the
 
Finance Documents which
Clause
 
(
Transfers
 
and
 
Changes
 
in
 
Facility
 
Offices
)
 
of
 
the
 
Loan
 
Agreement
 
provides
 
will
become binding on it upon this Certificate taking effect.
7
 
The Agent,
 
at the
 
request of
 
the Transferee
 
(which request
 
is hereby
 
made) accepts,
 
for the
Agent itself and for
 
and on behalf of every
 
other Relevant Party,
 
this Certificate as a
 
Transfer
Certificate taking effect in accordance with Clause
 
(
Transfers and changes in Facility Offices
)
of the Agreement.
8
 
The Transferor:
(a)
 
warrants to the Transferee
 
and each Relevant Party that:
(i)
 
the
 
Transferor
 
has
 
full
 
capacity
 
to
 
enter
 
into
 
this
 
transaction
 
and
 
has
 
taken
 
all
corporate action and obtained all consents which are required in connection with this
transaction; and
(ii)
 
this Certificate is valid and binding as regards the Transferor;
(b)
 
warrants to the Transferee that the Transferor
 
is absolutely entitled, free of
 
encumbrances, to
all the rights and interests covered by the assignment in paragraph 4; and
(c)
 
undertakes
 
with
 
the
 
Transferee
 
that
 
the
 
Transferor
 
will,
 
at
 
its
 
own
 
expense,
 
execute
 
any
documents which
 
the Transferee reasonably requests
 
for perfecting in
 
any relevant jurisdiction
the Transferee
 
's title under this Certificate or for a similar purpose.
9
 
The Transferee:
(a)
 
confirms
 
that
 
it
 
has
 
received
 
a
 
copy
 
of
 
the
 
Agreement
 
and
 
each
 
of
 
the
 
other
 
Finance
Documents;
(b)
 
agrees that it will
 
have no rights of
 
recourse on any
 
ground against either the
 
Transferor,
 
the
Agent, the Security Trustee, any Lender or the Swap Bank in the event that:
(i)
 
any of the Finance Documents prove to be invalid or ineffective;
(ii)
 
any
 
Borrower
 
or any
 
Security Party
 
fails
 
to observe
 
or perform
 
its obligations,
 
or to
discharge its liabilities, under any of the Finance Documents; and
(iii)
 
it proves
 
impossible to
 
realise
 
any
 
asset covered
 
by a
 
Security Interest
 
created
 
by a
Finance
 
Document,
 
or
 
the
 
proceeds
 
of
 
such
 
assets
 
are
 
insufficient
 
to
 
discharge
 
the
liabilities of the Borrowers or any Security Party under any of the Finance Documents;
 
(c)
 
agrees
 
that it
 
will have
 
no rights
 
of recourse
 
on any
 
ground
 
against
 
the Agent,
 
the Security
Trustee,
 
any Lender or the Swap Bank in the event
 
that this Certificate proves to be
 
invalid or
ineffective;
 
(d)
 
warrants to the Tra
 
nsferor and each Relevant Party that:
(i)
 
it has full capacity to enter into this transaction and
 
has taken all corporate action and
obtained
 
all
 
consents
 
which
 
it
 
needs
 
to
 
take
 
or
 
obtain
 
in
 
connection
 
with
 
this
transaction; and
(ii)
 
this Certificate is valid and binding as regards the Transferee;
 
and
(e)
 
confirms the accuracy of the administrative details set out below regarding the Transferee.
10
 
The Transferor
 
and the
 
Transferee
 
each undertake
 
with the
 
Agent
 
and the
 
Security Trustee
severally,
 
on demand,
 
fully to
 
indemnify the Agent
 
and/or the
 
Security Trustee
 
in respect
 
of
any claim, proceeding, liability
 
or expense (including all
 
legal expenses) which they or
 
either of
them may incur in connection with this Certificate
 
or any matter arising out of
 
it, except such
as are shown to have been mainly and directly caused by the
 
gross and culpable negligence or
dishonesty of the Agent's or the Security Trustee's own officers or employees.
11
 
The
 
Transferee
 
shall
 
repay
 
to
 
the
 
Transferor
 
on
 
demand
 
so
 
much
 
of
 
any
 
sum
 
paid
 
by
 
the
Transferor
 
under paragraph
 
9 as exceeds
 
one-half of the
 
amount demanded by
 
the Agent
 
or
the
 
Security
 
Trustee
 
in
 
respect
 
of
 
a
 
claim,
 
proceeding,
 
liability
 
or
 
expense
 
which
 
was
 
not
reasonably foreseeable at the date
 
of this Certificate; but
 
nothing in this paragraph
 
shall affect
the liability of each of
 
the Transferor
 
and the Transferee
 
to the Agent or
 
the Security Trustee
for the full amount demanded by it.
[Name of Transferor]
 
[Name of Transferee]
By:
 
By:
Date:
 
Date:
Agent
Signed for itself and for and on behalf of itself
as Agent and for every other Relevant Party
[Name of Agent]
By:
Date:
 
Administrative Details of Transferee
Name of Transferee:
 
Facility Office:
 
Contact Person
(Loan Administration Department):
 
Telephone:
 
Fax:
 
Contact Person
(Credit Administration Department):
 
Telephone:
 
Fax:
 
Account for payments:
 
Note
:
 
This Transfer
 
Certificate alone may
 
not be sufficient
 
to transfer
 
a proportionate
 
share of
 
the
Transferor
 
's
 
interest
 
in
 
the
 
security
 
constituted
 
by
 
the
 
Finance
 
Documents
 
in
 
the
 
Transferor
 
's
 
or
Transferee
 
's
 
jurisdiction.
 
It
 
is
 
the
 
responsibility
 
of
 
each
 
Lender
 
to
 
ascertain
 
whether
 
any
 
other
documents are required for this purpose.
 
SCHEDULE 5
DESIGNATION NOTICE
Nordea Bank Abp, filial i Norge
Xxxxxxxxxx xxxx 0, Postboks
 
1166, Sentrum, 0107 Oslo
920058817 MVA,
 
Norway
 
[●]
Dear Sirs
Loan Agreement dated
 
[●] 2022 made
 
between (i) Manra
 
Shipping Company Inc.,
 
Jabwot Shipping
Company
 
Inc.,
 
Arorae
 
Shipping
 
Company
 
Inc.,
 
Tamana
 
Shipping
 
Company
 
Inc.,
 
Beru
 
Shipping
Company
 
Inc.,
 
Bonriki
 
Shipping
 
Company
 
Inc.,
 
Ejite
 
Shipping
 
Company
 
Inc.,
 
Taongi
 
Shipping
Company Inc. and
 
Namorik Shipping Company Inc.
 
as joint and
 
several Borrowers,
 
(ii) the Lenders,
(iii) yourselves as Agent, Security Trustee,
 
Bookrunner and Lead Arranger and (iv) Nordea Bank Abp
as Swap Bank (the "Loan Agreement").
We refer to:
1
 
the Loan Agreement;
 
2
 
the Master Agreement dated [●] 2022 made between ourselves and the Swap Bank; and
3
 
a Confirmation delivered pursuant to
 
the said Master Agreement dated
 
[●] and addressed by
[●] to us.
In
 
accordance
 
with
 
the
 
terms
 
of
 
the
 
Loan
 
Agreement,
 
we
 
hereby
 
give
 
you
 
notice
 
of
 
the
 
said
Confirmation
 
and
 
hereby
 
confirm
 
that
 
the
 
Transaction
 
evidenced
 
by
 
it
 
will
 
be
 
designated
 
as
 
a
"Designated Transaction"
 
for the purposes of the Loan Agreement and the Finance Documents.
Yours
 
faithfully,
.................................................
for and on behalf of
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
 
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
 
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
EJITE SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
 
INC.
NAMORIK SHIPPING COMPANY INC.
 
SCHEDULE 6
SELECTION NOTICE
From:
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
 
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
 
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
EJITE SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
 
INC.
NAMORIK SHIPPING COMPANY INC.
To:
Nordea Bank Abp, filial i Norge
Xxxxxxxxxx xxxx 0, Postboks
 
1166, Sentrum, 0107 Oslo
 
920058817 MVA,
 
Norway
Dated: [
●
]
Loan Agreement dated
 
[●] 2022 made
 
between (i) Manra
 
Shipping Company Inc.,
 
Jabwot Shipping
Company
 
Inc.,
 
Arorae
 
Shipping
 
Company
 
Inc.,
 
Tamana
 
Shipping
 
Company
 
Inc.,
 
Beru
 
Shipping
Company
 
Inc.,
 
Bonriki
 
Shipping
 
Company
 
Inc.,
 
Ejite
 
Shipping
 
Company
 
Inc.,
 
Taongi
 
Shipping
Company Inc. and
 
Namorik Shipping Company Inc.
 
as joint and
 
several Borrowers,
 
(ii) the Lenders,
(iii) yourselves as Agent, Security Trustee,
 
Bookrunner and Lead Arranger and (iv) Nordea Bank Abp
as Swap Bank (the "Loan Agreement").
1
 
We
 
refer
 
to
 
the
 
Loan
 
Agreement.
 
This
 
is
 
a
 
Selection
 
Notice.
 
Terms
 
defined
 
in
 
the
 
Loan
Agreement have
 
the same meaning
 
in this Selection
 
Notice unless given
 
a different
 
meaning
in this Selection Notice.
2
 
We request [that the next Interest Period
 
for the Loan be [
●
]]OR[ an Interest Period for a part
of the Loan in an amount equal to [
●
] (which is the amount of the Repayment Instalment next
due) ending on [
●
] (which is the Repayment
 
Date relating to that
 
Repayment Instalment) and
that the Interest Period for the remaining part of the Loan shall be [
●
]].
3
 
This Selection Notice is irrevocable.
Yours
 
faithfully
____________________
[
●
]
authorised signatory for
MANRA SHIPPING COMPANY INC.
JABWOT SHIPPING COMPANY
 
INC.
ARORAE SHIPPING COMPANY INC.
TAMANA SHIPPING COMPANY
 
INC.
BERU SHIPPING COMPANY INC.
BONRIKI SHIPPING COMPANY INC.
EJITE SHIPPING COMPANY INC.
TAONGI SHIPPING COMPANY
 
INC.
NAMORIK SHIPPING COMPANY INC.
EXECUTION PAGES
THE BORROWERS
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
MANRA SHIPPING COMPANY INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
JABWOT SHIPPING COMPANY
 
INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
ARORAE SHIPPING COMPANY INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
TAMANA SHIPPING COMPANY
 
INC.
 
)
in the presence of:
 
)
 
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
BERU SHIPPING COMPANY INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
BONRIKI SHIPPING COMPANY INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
EJITE SHIPPING COMPANY INC.
 
)
in the presence of:
 
)
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
TAONGI SHIPPING COMPANY
 
INC.
 
)
in the presence of:
 
)
 
SIGNED
 
by
 
)
 
)
attorney-in-fact
 
)
for and on behalf of
 
)
NAMORIK SHIPPING COMPANY
 
INC.
 
)
in the presence of:
 
)
THE LENDERS
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP,
 
FILIAL I NORGE
 
)
in the presence of:
 
)
THE SWAP BANK
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP
 
 
)
in the presence of:
 
)
THE AGENT
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP,
 
FILIAL I NORGE
 
)
in the presence of:
 
)
THE SECURITY TRUSTEE
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP,
 
FILIAL I NORGE
 
)
in the presence of:
 
)
THE LEAD ARRANGER
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP,
 
FILIAL I NORGE
 
)
in the presence of:
 
)
THE BOOKRUNNER
SIGNED
 
by
 
)
)
attorney-in-fact
 
)
for and on behalf of
 
)
NORDEA BANK ABP,
 
FILIAL I NORGE
 
)
in the presence of:
 
)
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Filed: March 27th, 2023
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