LPG 8-K
Dorian Lpg Ltd. (LPG)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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Republic of the | ||
(State or other jurisdiction of incorporation or organization) | (Commission File Number) | (IRS employer identification no.) |
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c/o Dorian LPG (USA) LLC, |
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(Address of principal executive offices) |
| (Zip Code) |
(Registrant’s telephone number, including area code): (
(Former Name or Former Address, if Changed Since Last Report): None
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Introductory Note
The information contained in this Current Report on Form 8-K is hereby incorporated by reference into the registration statement on Form S-3 (File No. 333-26588) of Dorian LPG Ltd. (the “Company”), filed with the Commission on August 5, 2022.
Item 1.01 Entry into a Material Definitive Agreement
The information provided in Item 2.03 below is incorporated herein by reference, as applicable.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
On December 22, 2023, the Company and certain of its wholly-owned subsidiaries entered into an amended and restated debt financing facility (the “2023 A&R Debt Facility”) with Crédit Agricole Corporate and Investment Bank (“Credit Agricole”), ING Bank N.V. (“ING”), Skandinaviska Enskilda Banken AB (publ) (“SEB”), BNP Paribas (“BNP”), and Danish Ship Finance A/S (“DSF”, and together with Credit Agricole, ING, SEB and BNP, the “Lenders”). The 2023 A&R Debt Facility amended and restated the Company’s 2022 debt financing facility with the Lenders and consists of (i) a term loan facility in an aggregate original principal amount of $240.0 million, of which $215,000,000 remains outstanding on the date hereof, (ii) a revolving credit facility in an aggregate principal amount of up to $50.0 million and (iii) an uncommitted accordion term loan facility in an aggregate principal amount of up to $100.0 million. The 2023 A&R Debt Facility matures on August 4, 2029, with drawn amounts thereunder accruing interest at a rate of SOFR plus a margin ranging between 2.05 and 2.15%, plus or minus a sustainability pricing adjustment of 0.05%. The undrawn revolving credit facility accrues interest at a rate equal to 0.40% of the margin.
The 2023 A&R Debt Facility is secured by, among other things, (i) first priority Bahamian mortgages on the vessels financed, (ii) first priority assignments of all of the financed vessels’ mandatory insurances and earnings and management agreements; (iii) first priority pledge in respect of all limited liability company interests of the borrowers and vessel-owning guarantors; (iv) first priority charter assignments of all of the financed vessels’ long-term charters to non-Helios LPG Pool parties with an original tenor greater than 13 months; and (v) a guaranty by the Company guaranteeing the obligations of the borrower and other guarantors under the facility agreement. The 2023 A&R Debt Facility further provides that the facility is to be secured by assignments of the borrower’s rights under any hedging contracts in connection with the facility, but such assignments have not been entered into at this time.
The 2023 A&R Debt Facility also contains customary covenants that require the Company to maintain adequate insurance coverage and to properly maintain the vessels. The loan facility includes customary events of default, including those relating to a failure to pay principal or interest, breaches of covenants, representations and warranties, a cross-default to certain other debt obligations and non-compliance with security documents, and customary restrictions on paying dividends if an event of default has occurred and is continuing, or if an event of default would result therefrom.
The Company is required to comply with the following financial covenants from the 2023 A&R Debt Facility, calculated on a consolidated basis, determined and defined according to the provisions of the loan agreement and its amendments:
| ● | The ratio of current assets and long-term restricted cash divided by current liabilities, excluding current portion of long-term debt, shall always be greater than 1.00; |
| ● | Maintain minimum shareholders’ equity at all times equal to the aggregate of $400 million; |
| ● | The ratio of consolidated net debt to consolidated total capitalization shall not exceed 0.60 to 1.00; |
| ● | Fair market value of the mortgaged ships plus any additional security over the outstanding loan balance shall not be less than 145%; and |
| ● | Minimum liquidity covenant of the greater of (i) $27.5 million and (ii) 5% of consolidated interest-bearing debt. |
Item 9.01.Financial Statements and Exhibits
(d)Exhibits
Exhibit Number |
| Description |
10.1 | ||
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
December 27, 2023 | DORIAN LPG LTD. | |
(registrant) | ||
By: | /s/ Theodore B. Young | |
Theodore B. Young | ||
Exhibit 10.1
Dated as of December 22, 2023
DORIAN LPG FINANCE LLC
as Borrower
and
DORIAN LPG LTD.
and THE COMPANIES
listed in Part C of Schedule 1
as joint and several Guarantors
and
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part D of Schedule 1
as Lenders
and
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part E of Schedule 1
as Swap Banks
and
Crédit Agricole Corporate and Investment Bank
and ing bank n.v., LONDON BRANCH
as Bookrunners and Structurers
and
Crédit Agricole Corporate and Investment Bank,
ing bank n.v., LONDON BRANCH, BNP PARIBAS, DANISH SHIP FINANCE A/S and
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),
and
BNP PARIBAS
as Hedge Coordinator
and
Crédit Agricole Corporate and Investment Bank
as Sustainability Coordinator
and
Crédit Agricole Corporate and Investment Bank
as Agent and as Security Trustee
AMENDED AND RESTATED
LOAN AGREEMENT
relating to
a senior secured term loan and revolving credit facility
Schedules
Execution
Appendices
Appendix A Form of Compliance Certificate
Appendix B Form of Sustainability Certificate
Appendix C Form of Accordion Commitment Agreement
THIS AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is made as of December 22, 2023
| (3) | THE COMPANIES listed in Part C of Schedule 1 as joint and several owner guarantors (collectively, the “Owner Guarantors”, and each separately an “Owner Guarantor”, and, together with the Parent Guarantor, the “Guarantors”, and each separately a “Guarantor” which expressions include their respective successors, transferees and assigns); |
| (4) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Part D of Schedule 1, as lenders (collectively, the “Lenders”, which expression includes their respective successors, transferees and assigns and any bank or financial institution that becomes a Lender hereto); |
| (5) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Part E of Schedule 1, as Swap Banks; |
| (6) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK acting in such capacity through its office at 12, Place des Etats-Unis – CS 70052 – 92547 Montrouge Cedex, France, as agent for the Creditor Parties (in such capacity, the “Agent”, which expression includes its successors, transferees and assigns); and |
| (7) | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, acting in such capacity through its office at 12, Place des Etats-Unis – CS 70052 – 92547 Montrouge Cedex, France, as security trustee for the Creditor Parties (in such capacity, the “Security Trustee”, which expression includes its successors, transferees and assigns). |
| (B) | The parties hereto have agreed to amend and restate the Original Loan Agreement to, among other things, (i) increase the Revolving Credit Facility by $30,000,000 to $50,000,000, and (ii) provide for the Accordion Facility (as defined below) in an aggregate principal amount of up to $100,000,000 for the purpose of financing part of the purchase price of each of the Accordion Vessels (as defined below), in each case on the terms and conditions set forth herein. |
| (C) | The Swap Banks may, at the Borrower’s request, enter into interest swap transactions with the Borrower from time to time to hedge the Borrower’s exposure under this Agreement to interest rate fluctuations. |
| (D) | The Lenders and the Swap Banks have agreed to share the Collateral granted to the Security Trustee pursuant to the terms of this Agreement with the interest of the Swap Banks being secured on a pari passu basis. |
| 1 | Interpretation |
| 1.1 | Definitions |
Subject to Clause 1.5, in this Agreement:
“Approved Broker” means any of the companies listed on Schedule 6 or such other company proposed by the Borrower which the Agent may, with the consent of the Majority Lenders (such consent not to be unreasonably withheld or delayed), approve from time to time for the
purpose of valuing a Vessel, who shall act as an expert and not as arbitrator and whose valuation shall be conclusive and binding on all parties to this Agreement.
“Approved Insurance Broker” means, (a) any of Arthur J. Gallagher & Co., Willis Towers Watson, Seascope Insurance Services (and its Affiliates), Parisco A/S, and any Lloyd’s of London registered broker, and (b) any other insurance broker approved by the Majority Lenders (such approval not to be unreasonably withheld or delayed) in consultation with the Borrower; provided that any Approved Insurance Broker may cease to be an Approved Insurance Broker hereunder upon ten (10) Business Days prior written notice from the Agent (upon the instruction of the Majority Lenders) to the Borrower.
| (b) | in respect of the commercial management of the Vessels, a subsidiary of the Parent Guarantor, Dorian LPG (DK) ApS or any other manager reasonably acceptable to the Majority Lenders; |
| (c) | any other company proposed by the Borrower which the Agent may, with the consent of the Majority Lenders (such consent not to be unreasonably withheld), approve from time to time as the technical and/or commercial manager of a Vessel. |
| (a) | in the case of the Revolving Credit Facility, the period commencing on the Original Closing Date and ending on the date falling ninety (90) calendar days prior to the Maturity Date; and |
| (b) | in respect of the Term Loan Facility, the period commencing on the Original Effective Date and ending on the date falling sixty (60) Business Days after the Original Effective Date; and |
| (c) | in respect of the Accordion Facility, the period commencing on the Effective Date and ending on the second anniversary of the Effective Date; or |
in each case, if earlier, ending on the date on which the relevant Commitments are fully utilized (other than in respect of the Revolving Credit Facility), cancelled or terminated.
| (c) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”. |
| (a) | Daily Simple SOFR; or |
“Bookrunners” means Crédit Agricole Corporate and Investment Bank and ING Bank N.V., London Branch.
| (b) | the climate alignment of that Vessel for such calendar year: |
| (a) | securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof); |
| (b) | time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; |
| (d) | any fund with daily redemptions that complies with the provisions of this definition; and |
| (e) | such other securities or instruments as the Majority Lenders shall agree in writing. |
| (a) | in respect of the Borrower, the Parent Guarantor ceases to own directly 100% of the Equity Interests in and control the Borrower; |
| (b) | in respect of an Owner Guarantor, the Borrower ceases to own directly 100% of the Equity Interests in and control any Owner Guarantor; or |
| (c) | in respect of the Parent Guarantor, |
| (i) | a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than a “person” or “group” over which John Hadjipateras has voting control or any individual director or individual officer who is holder of 5% or more of the Parent Guarantor’s equity interests as of the Original Effective Date, becomes the ultimate “beneficial owner” (as defined in Rule 13(d)-3 under the Exchange Act and including by reason of any change in the ultimate “beneficial ownership” of the Equity Interests of the Parent Guarantor) of more than 33% of the total voting power of the Voting Stock of the Parent Guarantor (calculated on a fully diluted basis); |
| (ii) | individuals who at the beginning of any period of two (2) consecutive calendar years constituted the Board of Directors or equivalent governing body of the Parent Guarantor (together with any new directors (or equivalent) whose election by such Board of Directors or equivalent governing body or whose nomination for election was approved by a vote of at least two-thirds of the members of such Board of Directors or equivalent governing body then still in office who either were members of such Board of Directors or equivalent governing body at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason (other than as a result of compliance with NYSE rules on independent directors) to constitute at least 50% of the members of such Board of Directors or equivalent governing body then in office; or |
| (iii) | Mr. John Hadjipateras ceases to be a director of the Parent Guarantor, except by reason of his voluntary resignation. |
“Code” means the United States Internal Revenue Code of 1986, as amended, and the regulations promulgated and rulings issued thereunder.
“Commitment” means a Term Loan Facility Commitment, a Revolving Credit Commitment or any amount that has become available in respect of the Accordion Facility in accordance with Clause 2.5.
| (a) | any Security Party or its advisers; or |
| (b) | another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly from any Security Party or any of its advisers, |
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes any funding rate or any information that:
| (i) | is or becomes public information other than as a direct or indirect result of any breach by that Creditor Party of Clause 27.13; or |
| (ii) | is identified in writing at the time of delivery as non-confidential by any Security Party or any of its advisers; or |
| (iii) | is known by that Creditor Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Creditor Party after that date, from a source which is, as far as that Creditor Party is aware, unconnected with any Security Party and which, in either case, as far as that Creditor Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality. |
| (a) | all Financial Indebtedness; and |
| (b) | all obligations to pay a specific purchase price for goods or services (other than vessel newbuildings and rights of use liabilities) whether or not delivered or accepted (including take-or-pay and similar obligations) which in accordance with GAAP would be shown on the liability side of a balance sheet; |
provided that balance sheet accruals for future drydock expenses shall not be classified as Consolidated Funded Debt.
| (b) | which has otherwise rescinded or repudiated a Finance Document; or |
| (c) | with respect to which any proceeding shall be instituted by or against such Lender seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, excluding an Undisclosed Administration, |
unless, in the case of paragraph (a) above:
| (i) | its failure to pay is caused by: |
| (A) | an administrative or technical error; or |
| (B) | a Disruption Event; and |
payment is made within 5 Business Days of its due date; or
| (ii) | the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment; |
and provided further that, a Lender’s designation as a Defaulting Lender hereunder shall not prohibit such Lender from retaining its voting rights under this Agreement where (x) its Commitment or the Maturity Date relating to its Contribution is being extended, (y) there is a forgiveness or reduction in outstanding principal of such Lender’s Contribution, and (z) such Lender would otherwise be adversely affected disproportionately to other Lenders.
| (a) | it is entered into by the Borrower pursuant to a Master Agreement with a Swap Bank; |
| (b) | its purpose is the hedging of the Borrower’s exposure under this Agreement to fluctuations in Term SOFR arising from the funding of the Loan (or any part thereof) for a period expiring no later than the Maturity Date; and |
| (c) | it is designated by the Borrower, by delivery by the Borrower to the Agent of a notice of designation in the form set out in Schedule 8, as a Designated Transaction for the purposes of the Finance Documents. |
| (a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, a party to this Agreement (a “Party”); or |
| (b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other, Party: |
| (i) | from performing its payment obligations under the Finance Documents; or |
| (ii) | from communicating with other parties in accordance with the terms of the Finance Documents. |
| (a) | except to the extent that they fall within paragraph (b): |
| (i) | all freight, hire and passage moneys; |
| (ii) | compensation payable to the Owner Guarantor owning that Vessel or the Security Trustee in the event of requisition of that Vessel 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 that Vessel; and |
| (vi) | all moneys which are at any time payable under Insurances in respect of loss of hire; and |
| (b) | if and whenever that Vessel is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion |
| of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Vessel. |
| (a) | any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; |
| (b) | any entity established in an EEA Member Country which is a party of an institution described in paragraph (a) of this definition; |
| (c) | any financial institution established in an EEA Member Country which is a subsidiary of an institution described in paragraphs (a) or (b) of this definition and is subject to consolidated supervision with its parent. |
| (a) | any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or which relates to any Environmental Law; or |
| (b) | any claim by any other person which relates to an Environmental Incident, |
and “claim” means a claim for damages, compensation, indemnification, contribution, 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.
| (a) | any release of Environmentally Sensitive Material from a Vessel; or |
| (b) | any incident in which Environmentally Sensitive Material is released and which involves a collision or allision between a Vessel and another vessel or object, or some other incident of navigation or operation, in any case, in connection with which such Vessel is actually or potentially liable to be arrested, attached, detained or injuncted and/or such Vessel and/or the Borrower and/or the Owner Guarantor owning such Vessel and/or any operator or manager of the Vessel 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 Vessel and in connection with which such Vessel is actually or potentially liable to be arrested and/or where the Borrower and/or the Owner Guarantor owning such Vessel and/or any operator or manager of such Vessel is at fault or allegedly at fault or otherwise liable to any legal or administrative action. |
| (a) | any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and |
| (b) | all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person; |
| (a) | any failure by any Plan to satisfy the minimum funding standards (for purposes of Section 412 of the Code or Section 302 of ERISA), whether or not waived; |
| (b) | the filing pursuant to Section 412 of the Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; |
| (c) | the failure by the Borrower or any Guarantor or any of their respective subsidiaries or any ERISA Affiliate to make any required contribution to a Multiemployer Plan; |
| (d) | a determination that any Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430(i) of the Code); |
| (e) | the incurrence by the Borrower or any Guarantor or any of their respective subsidiaries or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; |
| (f) | a determination that a Multiemployer Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, or in endangered status within the meaning of Section 432 of the Code or Section 305 of ERISA; |
| (g) | any Reportable Event; or |
| (h) | the existence of a non-exempt “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code with respect to any employee benefit plan as defined in Section 3(3) of ERISA (other than a Multiemployer Plan) in respect to which the Borrower or any Guarantor or any of their respective subsidiaries or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA and in respect of which a liability (other than one of an immaterial amount) could reasonably be expected to be incurred by any Security Party. |
| (a) | the imposition of any lien in favor of the PBGC on any Plan or Multiemployer Plan, or on any asset of any Security Party or any ERISA Affiliate in connection with any Plan or Multiemployer Plan; |
| (b) | the receipt by the Borrower or any Guarantor or any of their respective subsidiaries or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Multiemployer Plan or to appoint a trustee to administer any Plan or Multiemployer Plan under Section 4042 of ERISA; |
| (c) | the receipt by the Borrower or any Guarantor or any of their respective subsidiaries or any ERISA Affiliate of any notice that a Multiemployer Plan is in critical status within the meaning of Section 432 of the Code or Section 305 of ERISA; |
| (d) | the filing of a notice of intent to terminate a Plan under Section 4041 of ERISA; |
| (e) | the termination of a Multiemployer Plan (or treatment of a plan amendment as a termination) under Section 4041A of ERISA; or |
| (f) | the occurrence of any other event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan. |
| (a) | as at a date not more than thirty (30) days prior to the date such valuation is delivered to the Agent (or such other time frame the Agent may, with the consent of the Majority Lenders, approve from time to time); |
| (b) | by two or more Approved Brokers selected by the Borrower; |
| (c) | on a “desk top” basis without physical inspection of that Vessel; and |
| (d) | on the basis of a sale for prompt delivery for cash on normal arm’s length commercial terms as between a willing seller and a willing buyer, free of any existing charter or other contract of employment (and with no value to be given to any pooling arrangements); |
provided that (i) if a range of market values is provided in a particular appraisal, then the market value in such appraisal shall be deemed to be the mid-point within such range and (ii) if a third appraisal is obtained as provided in Clause 11.1(h), the market value of such Vessel shall be the average of the three appraisals obtained.
| (a) | Sections 1471 through 1474 of the Code and any regulations thereunder issued by the United States Treasury; or |
| (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 treaty, law or regulation referred to in paragraph (a) above; or |
| (c) | any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US International Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction |
| (a) | this Agreement; |
| (b) | any Note; |
| (c) | any Fee Letter; |
| (d) | any Account Pledges; |
| (e) | any Charter Assignment; |
| (f) | any Earnings Assignments; |
| (g) | any Insurance Assignments; |
| (h) | any Master Agreement; |
| (i) | any Master Agreement Assignment; |
| (j) | any Mortgages; |
| (k) | any Shares Pledge; |
| (l) | any Manager’s Undertaking; |
| (m) | any Subordination Agreement; and |
| (n) | any other document (whether creating a Security Interest or not) which is executed at any time by any 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 Swap Banks under this Agreement or any of the other documents referred to in this definition or which is entered into or to be entered into by any Security Party and is designated as a “Finance Document” by the Agent and the Borrower under and for the purposes of this Agreement. |
| (a) | moneys borrowed (including principal, interest and other sums related to such principal and interest) and debit balances at banks or other financial institutions; |
| (b) | any amount raised by acceptance under any acceptance credit facility or under any acceptance credit or other equivalent facility; |
| (c) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
| (d) | the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease; |
| (e) | receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
| (f) | any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the negative marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account), it being understood and agreed that any positive marked to market value shall reduce the Financial Indebtedness accordingly; |
| (g) | any counter-indemnity obligation in respect of a guaranty, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; |
| (h) | any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply; |
| (i) | any amount raised under any other transaction (including any forward sale or purchase sale and sale back, sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and |
the amount of any liability in respect of any guaranty or indemnity for any of the items referred to in paragraphs (a) to (i) above.
| (a) | all policies and contracts of insurance, including entries of that Vessel in any protection and indemnity or war risks association, effected in respect of that Vessel, the Earnings or otherwise in relation to that Vessel whether before, on or after the Original Effective Date; 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 Original Effective Date. |
| (a) | the Document of Compliance and Safety Management Certificate issued pursuant to the ISM Code in relation to that Vessel within the periods specified by the ISM Code; |
| (b) | all other documents and data which are relevant to the safety management system and its implementation and verification which the Agent may require; and |
| (c) | any other documents which are prepared or which are otherwise relevant to establish and maintain that Vessel’s compliance or the compliance of the Owner Guarantor that owns that Vessel or the relevant Approved Manager with the ISM Code which the Agent may require. |
| (a) | the ISSC; and |
| (b) | all other documents and data which are relevant to the ISPS Code and its implementation and verification which the Agent may require. |
Level | (x) Margin under the Original Loan Agreement immediately prior to Effective Date | (y) Margin commencing on the first day of the first Interest Period after the Effective Date | Leverage Ratio |
|---|---|---|---|
I | 2.15% | 2.05% | Less than 35% |
II | 2.20% | 2.10% | Greater than or equal to 35% and less than 45% |
III | 2.25% | 2.15% | Greater than or equal to 45% |
| (a) | Subject to clauses (b) and (c) below, the adjustment of the Margin (if any) will occur on the next Repayment Date occurring after the Agent’s receipt of a Consolidated Margin Certificate. |
| (c) | The Margin shall be re-calculated upon the drawing of each Advance during each Interest Period, such that if the Leverage Ratio increases, resulting in a different Level indicated above, then the Margin on the Loan would also increase on the relevant Drawdown Date of such Advance. |
| (a) | any tax on the net income of a Creditor Party (but not a tax on gross income or individual items of income), whether collected by deduction or withholding or otherwise, which is levied by a taxing jurisdiction which: |
| (i) | is located in the country under whose laws such entity is formed (or in the case of a natural person is a country of which such person is a citizen); or |
| (ii) | with respect to any Lender, is located in the country of its Lending Office; or |
| (iii) | with respect to any Creditor Party other than a Lender, is located in the country from which such party has originated its participation in this transaction; or |
| (b) | any FATCA Deduction made on account of a payment to a FATCA Non-Exempt Party. |
| (a) | either (i) is not subordinated in right of payment to any other Financial Indebtedness of such person or (ii) is subordinate in right of payment to the same Financial Indebtedness of such person as is the other and is so subordinate to the same extent; and |
| (b) | is not subordinated in right of payment to the other or to any Financial Indebtedness of such person as to which the other is not so subordinate. |
| (a) | Financial Indebtedness in respect of the Existing Facility Agreements, provided that such Financial Indebtedness relating to a Vessel shall be repaid on the Drawdown Date of the Advance under the Term Loan Facility relating to such Vessel; |
| (b) | Financial Indebtedness in respect of the Loan; |
| (c) | subject to Clause 11.1(r), loans made to a Security Party by an Affiliate, parent or subsidiary; or |
| (d) | hedging agreements with third parties in the ordinary course of business for purposes of hedging foreign currency exchange, bunker costs and other risks. |
| (a) | Security Interests created or otherwise permitted in connection with the Existing Facility Agreements, provided that such Security Interests relating to a Vessel or its Owner Guarantor shall be released in full on the Drawdown Date of the Advance under the Term Loan Facility relating to such Vessel, and all such Security Interests shall be released no later than the final Drawdown Date; |
| (b) | Security Interests created or otherwise permitted by the Finance Documents; |
| (c) | Permitted Vessel Liens; and |
| (d) | any Security Interest approved by the Majority Lenders. |
| (a) | any ship repairer’s or outfitter’s possessory lien in respect of such Vessel for an amount not exceeding the Major Casualty amount; |
| (b) | any lien on such Vessel for master’s, officer’s or crew’s wages outstanding in accordance with usual maritime practice; |
| (c) | any lien for master’s disbursements incurred in the ordinary course of trading, provided such liens do not secure amounts more than 30 days overdue (unless the amount is being contested by the Security Parties in good faith by appropriate steps); |
| (d) | any lien on such Vessel for collision or salvage; |
| (e) | liens in the aggregate amount of $1,000,000 or any other greater amount approved by all the Lenders, in favor of suppliers of necessaries or other similar liens arising in the ordinary course of its trading (including, without limitation, any liens incurred in connection with regular dry docking), accrued for not more than ninety (90) days |
| (unless any such lien is being contested in good faith and by appropriate proceedings or other acts and the relevant Owner Guarantor shall have set aside on its books adequate reserves in accordance with GAAP with respect to such lien and so long as such deferment in payment shall not subject its Ship to forfeiture or loss); |
| (f) | liens in the aggregate amount of $1,000,000 or any other amount approved by all the Lenders for loss, damage or expense which are not fully covered by Insurance, subject to applicable deductibles satisfactory to the Agent, or in respect of which a bond or other security has been posted by or on behalf of the relevant Owner Guarantor with the appropriate court or other tribunal to prevent the arrest or secure the release of the Vessel from arrest; |
| (g) | liens for taxes or assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate steps and in respect of which the Owner Guarantor shall have set aside on its books adequate reserves in accordance with GAAP with respect to such lien and so long as such deferment in payment shall not subject its Vessel to forfeiture or loss; |
| (h) | any other lien arising by operation of law or otherwise in the ordinary course of operation, repair or maintenance of a Vessel that does not subject the Vessel to forfeiture or loss; |
| (i) | pledges of certificates of deposit or other cash collateral securing any Security Party’s reimbursement obligations in connection with letters of credit now or hereafter issued for the account of such Security Party in connection with the establishment of the financial responsibility of such Security Party under 33 C.F.R. Part 130 or 46 C.F.R. Part 540, as the case may be, as the same may be amended or replaced; and |
| (j) | Security Interests for loss, damage or expense which are fully covered by insurance, subject to applicable deductibles satisfactory to the Agent. |
| (a) | any Finance Document; |
| (b) | any policy or contract of insurance contemplated by or referred to in Clause 13 or any other provision of this Agreement or another Finance Document; |
| (c) | any other document contemplated by or referred to in any Finance Document; and |
| (d) | any document which has been or is at any time sent by or to a Servicing Bank in contemplation of or in connection with any Finance Document or any policy, contract or document falling within paragraphs (b) or (c). |
| (a) | the jurisdiction under the laws of which the company is incorporated or formed; |
| (b) | a jurisdiction in which the company has the center of its main interests or in which the company’s central management and control is or has recently been exercised; |
| (c) | a jurisdiction in which the overall net income of the company is subject to corporation tax, income tax or any similar tax; |
| (d) | a jurisdiction 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; or |
| (e) | a jurisdiction the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company whether as a 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 (a) or (b) above. |
| (a) | any transaction or matter contemplated by, arising out of, or in connection with a Pertinent Document; or |
| (b) | any statement relating to a Pertinent Document or to a transaction or matter falling within paragraph (a), |
| (a) | listed on any Sanctions List or targeted by Sanctions (whether designated by name or by reason of being included in a class of person); or |
| (b) | located in or incorporated under the laws of any country or territory that is the target of comprehensive, country- or territory-wide Sanctions; or |
| (c) | directly or indirectly owned or controlled by, or acting or purporting to act on behalf, at the direction, or for the benefit, of a person referred to in (a) and/or (to the extent relevant under Sanctions) (b) above; or |
| (d) | otherwise a target of Sanctions; |
| (a) | the lists of Sanctions designations and/or targets maintained by any Sanctions Authority and/or |
| (b) | any other Sanctions designation or target listed and/or adopted by a Sanctions Authority, in all cases, as amended, supplemented or replaced from time to time. |
| (a) | a mortgage, encumbrance, charge (whether fixed or floating) or pledge, any maritime or other lien or privilege or any other security interest of any kind; |
| (b) | the security rights of a plaintiff under an action in rem; and |
| (a) | all amounts which have become due for payment by the Borrower or any other 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; and |
| (c) | neither the Borrower nor any other Security Party has any future or contingent liability under Clause 21, 22 or 23 or any other provision of this Agreement or another Finance Document. |
| (a) | if the Vessels’ average weighted Annual Efficiency Ratio (AER) is below the IMO trajectory target, the Margin shall be reduced by 0.05%; and |
| (b) | if the Vessels’ average weighted Annual Efficiency Ratio (AER) is not below than the IMO trajectory target, or the Borrower does not provide the Sustainability Certificate within the period required under Clause 11.1(g), the Margin shall be increased by 0.05%; |
“Term Loan Facility Commitment” means, in relation to a Lender, the amount set opposite its name under the heading “Term Loan Facility Commitment” in Part II of Schedule 1 (The Parties) in the Original Loan Agreement and the amount of any other Term Loan Facility Commitment transferred to it under this Agreement, and to the extent not cancelled, reduced or transferred by it under this Agreement.
| (a) | actual, constructive, compromised, agreed or arranged total loss of that Vessel; |
| (a) | in the case of an actual loss of that Vessel, the date on which it occurred or, if that is unknown, the date when that Vessel was last heard of; |
| (b) | in the case of a constructive, compromised, agreed or arranged total loss of that Vessel, the earliest of: |
| (i) | the date on which a notice of abandonment is given to the insurers; |
| (ii) | if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or |
| (iii) | the date of any compromise, arrangement or agreement made by or on behalf of the Owner Guarantor owning that Vessel with the Vessel’s insurers in which the insurers agree to treat the Vessel as a total loss; and |
| (c) | in the case of any expropriation, confiscation, requisition or acquisition of a Vessel ((excluding a requisition for hire for a fixed period not exceeding one (1) year without any right to an extension), the date it happened; and |
| (d) | in the case of arrest, capture, seizure or detention of a Vessel, the date 30 days after date upon which it happened. |
| (a) | with respect to the Term Loan Facility, in respect of each Vessel, the original principal amount of $24,000,000, of the Total Term Loan Facility Commitments; |
| (b) | with respect to the Revolving Credit Facility to be made available to the Borrower, the principal amount of $50,000,000 of the Revolving Credit Commitments; and |
| (c) | with respect to the Accordion Facility, in respect of each Accordion Vessel, the aggregate principal amount of the relevant Accordion Advances. |
| (a) | with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and |
| (b) | with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or a 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. |
| 1.2 | Construction of certain terms |
In this Agreement:
| 1.3 | Meaning of “month” |
A period of one or more “months” ends on the day in the relevant calendar month numerically corresponding to the day of the calendar month on which the period started (“the numerically corresponding day”), but:
| (a) | on the Business Day following the numerically corresponding day if the numerically corresponding day is not a Business Day or, if there is no later Business Day in the same calendar month, on the Business Day preceding the numerically corresponding day; or |
| (b) | on the last Business Day in the relevant calendar month, if the period started on the last Business Day in a calendar month or if the last calendar month of the period has no numerically corresponding day, |
and “month” and “monthly” shall be construed accordingly.
| 1.4 | Meaning of “subsidiary” |
A company (S) is a subsidiary of another company (P) if:
| (a) | a majority of the issued Equity Interests in S (or a majority of the issued Equity Interests 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 Equity Interests of S; or |
| (c) | P has the direct or indirect power to appoint or remove a majority of the directors (or equivalent) 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; provided however that notwithstanding the foregoing, Helios LPG Pool shall not be considered a subsidiary of the Parent Guarantor.
| 1.5 | 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 Original Effective Date or otherwise; |
| (b) | references to, or to a provision of, any law or regulation include any amendment, extension, re-enactment or replacement, whether made before the Original Effective Date or otherwise; |
| (c) | words denoting the singular number shall include the plural and vice versa; and |
| (d) | Clauses 1.1 to 1.5 apply unless the contrary intention appears. |
| 1.6 | 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.
| 1.7 | Accounting terms |
Unless otherwise specified herein, all accounting terms used in this Agreement and in the other Finance Documents shall be interpreted, and all financial statements and certificates and reports as to financial matters required to be delivered to any Creditor Party under this Agreement shall be prepared, in accordance with GAAP as from time to time in effect.
| 1.8 | Inferences regarding materiality |
To the extent that any representation, warranty, covenant or other undertaking of a Security Party in this Agreement or any other Finance Document is qualified by reference to those matters which are not reasonably expected to result in a “material adverse effect” or language of similar import, no inference shall be drawn therefrom that any Creditor Party has knowledge or approves of any noncompliance by such Security Party with any law or regulation.
| 2 | Facility |
| 2.1 | Amount of facility |
| (a) | Subject to the other provisions of the Original Loan Agreement the Lenders severally agreed to make available to the Borrower the Revolving Credit Facility and the Term Loan Facility, together in an aggregate amount not to exceed the lesser of $260,000,000 and 40% of the Fair Market Value of the Vessels, as determined no earlier than thirty (30) days prior to the Original Effective Date (other than in the case of determining the Fair Market Value of the CORVETTE which may be determined earlier) (the “Maximum Available Amount”). |
| (b) | The Term Loan Facility has been fully drawn by the Borrower in the total amount of $240,000,000 of which $215,000,000 remains outstanding as of the Effective Date. The Contributions of each Lender with respect to the Term Loan Facility as of the Effective Date are set forth in Part D of Schedule 1 of this Agreement. |
| (c) | Subject to the other provisions of this Agreement the Lenders severally agree to make available to the Borrower the Revolving Credit Facility in an aggregate amount not to exceed $50,000,000. The Revolving Credit Commitment of each Lender as of the Effective Date is set forth in Part D of Schedule 1 of this Agreement. |
| 2.2 | Lenders’ participations in the Revolving Advances |
Subject to the other provisions of this Agreement, each Lender shall participate in each Revolving Advance in the proportion which, as at the relevant Drawdown Date, its Revolving Credit Commitment bears to the Total Revolving Facility Commitments.
| 2.3 | Purpose of the Revolving Advances and Accordion Advances |
The Borrower undertakes with each Creditor Party to use (a) each Revolving Credit Advance only for general corporate and working capital purposes and (b) each Accordion Advance only for the purpose stated in Clause 4.2(h).
| 2.4 | Cancellation of Commitments |
Any portion of the Revolving Credit Commitments not disbursed to the Borrower shall be cancelled and terminated automatically on the expiration of the relevant Availability Period.
| 2.5 | Accordion Option |
Subject to the conditions set out in Clause 2.6, from time to time during the period between the Effective Date and the end of the Availability Period in respect of the Accordion Facility, the Borrower may, by notice to the Agent, request to increase the Total Commitments by the Accordion Facility (or a part thereof) by either:
| (a) | agreeing with one or more Lenders, in each such Lender's sole discretion, to increase such Lender's Commitment by the amount stated in an Accordion Commitment Agreement executed by such Lender, provided that, no consent of the other Lenders shall be required in the event that a Lender decides to increase its Commitment; or |
| (b) | if the existing Lenders do not provide adequate commitments to make the Accordion Advance fully available, causing one or more banks or financial institutions reasonably acceptable to the Agent to become a Lender hereunder (with all the rights and obligations of a Lender attendant thereto) in respect of the Accordion Facility with respect to such shortfall not provided by the existing Lenders; |
and in each such case, such bank or financial institution or such Lender shall execute and deliver to the Agent an Accordion Commitment Agreement to cause such bank or financial institution to become a Lender hereunder or such Lender's Commitment to be increased.
| 2.6 | Conditions Precedent to Exercise of Accordion Option |
The conditions referred to in Clause 2.5 are that:
| (b) | no Lender's Commitment shall be increased by the Accordion Option without the consent of such Lender; |
| (c) | after giving effect to such Accordion Option, the Borrower shall be in compliance with the Financial Covenants set out in Clause 12; |
| (e) | if the relevant Accordion Vessel is older than 5.0 years of age on the relevant Delivery Date, the amount of the relevant Accordion Advance shall not exceed 45% of the Fair Market Value of the Accordion Vessel (as determined by valuations dated within 30 days of the relevant Drawdown Date); |
| (f) | the conditions precedent stated in Clause 9.1(a)(ii), Clause 9.1(d), Clause 9.1(f), and Clause 9.1(i), shall, in each case, have been satisfied or waived; |
| effectiveness of any Accordion Amendment, this Agreement and the other Finance Documents, as applicable, will be amended to the extent necessary to reflect the existence and terms of the Accordion Facility and Accordion Advance evidenced thereby. This Clause 2.6(h) shall supersede any provisions in Clause 28.1 to the contrary with respect to any Accordion Amendment only. |
| 3 | Position of the Lenders and Swap Banks |
| 3.1 | Interests several |
The rights of the Lenders and of the Swap Banks under this Agreement and under the Master Agreements are several.
| 3.2 | Individual right of action |
Each Lender and each Swap Bank shall be entitled to sue for any amount which has become due and payable by a Security Party to it under this Agreement or under a Master Agreement without joining the Agent, the Security Trustee, or any other Lender or any other Swap Bank as additional parties in the proceedings.
| 3.3 | Proceedings requiring Majority Lender consent |
Except as provided in Clause 3.2, no Lender and no Swap Bank may commence proceedings against any Security Party in connection with a Finance Document without the prior consent of the Majority Lenders.
| 3.4 | Secured Liabilities several |
The obligations of the Lenders under this Agreement and of the Swap Banks under the Master Agreement to which it is a party are several; and a failure of a Lender to perform its obligations under this Agreement or a failure of a Swap Bank to perform its obligations under the Master Agreement to which it is a party shall not result in:
| (a) | the obligations of the other Lenders or Swap Banks being increased; nor |
| (b) | any Security Party, or any other Lender or any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document, |
and in no circumstances shall a Lender or a Swap Bank have any responsibility for a failure of another Lender or another Swap Bank to perform its obligations under this Agreement or a Master Agreement.
| 4 | Drawdown |
| 4.1 | Request for Advance |
Subject to the following conditions, the Borrower may request an Advance to be made by delivering to the Agent a completed Drawdown Notice not later than 4:00 p.m. (Paris time) three (3) Business Days prior to the intended Drawdown Date.
| 4.2 | Availability |
The conditions referred to in Clause 4.1 are that:
| (a) | the Drawdown Date must be a Business Day during the Availability Period; |
| (b) | the Revolving Credit Facility shall be made available to the Borrower in a single Tranche consisting of multiple Advances; |
| (c) | the Term Loan Facility has been made available to the Borrower in ten (10) Tranches, consisting of one (1) Advance per Vessel; |
| (d) | subject to Clause 2.1 (Facility Amount), the aggregate outstanding principal amount of the Revolving Advances shall not exceed the Revolving Credit Commitments, and the aggregate outstanding principal amount of the Term Loan Advances shall not exceed the Term Loan Facility Commitments; |
| (e) | the aggregate outstanding principal amount of the Advances shall not exceed the Total Commitments; |
| (f) | each Advance in respect of the Revolving Credit Facility shall be for an amount not less than $2,000,000; |
| (g) | no more than three (3) Advances in respect of the Revolving Credit Facility may be requested in any fiscal quarter of the Parent Guarantor; |
| (h) | subject to Clause 2.6, the Accordion Facility shall be made available to the Borrower in multiple Accordion Advances for the purpose of financing part of the purchase price of each of the Accordion Vessels; and |
| (i) | the applicable conditions precedent stated in Clause 9 hereof shall have been satisfied or waived as provided therein. |
| 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 Lender’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 an officer or a duly authorized attorney-in-fact of the Borrower and except as provided in Clauses 5.5 and 5.6(f), once served, a Drawdown Notice cannot be revoked or varied without the prior consent of the Agent, acting on the authority of the Majority Lenders (such consent not to be unreasonably withheld).
| 4.5 | Lenders to make available Contributions |
Subject to the provisions of this Agreement, each Lender shall, before 11:00 a.m. (New York City time) on and with value on the relevant Drawdown Date, make available to the Agent for the account of the Borrower the amount due from that Lender under Clause 2.2.
| 4.6 | Disbursement of Advance |
Subject to the provisions of this Agreement, the Agent shall on the relevant Drawdown Date pay to the Borrower the amounts which the Agent receives from the Lenders under Clause 4.5 and that payment to the Borrower shall be made:
| (a) | to the account(s) which the Borrower specifies in the relevant 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 4.6 to the account of a third party designated by the Borrower in a Drawdown Notice shall constitute the making of the Advance and the Borrower shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that Lender’s Contribution.
| 4.8 | Promissory note |
| (a) | The obligation of the Borrower to pay the principal of, and interest on, the portion of each Advance made by each Lender shall be evidenced by one or more Notes in favor of the Agent (unless a Lender requests a Note evidencing its Contribution in which case an individual Note shall be issued to such Lender). |
| (b) | Each Lender (or the Agent, as applicable), shall record on its internal records the amount of its (or each Lender’s) participation in each Advance and its payment in respect thereof, and will, prior to any transfer of a Note, endorse thereon the outstanding principal amount of the Contribution evidenced thereby. |
| (c) | The failure to make any such endorsement shall not affect the obligation of the Borrower in respect of such Advance nor affect the validity of any transfer by the Agent or a Lender of a Note. |
| (d) | On receipt of satisfactory evidence that a Note has been lost, mutilated or destroyed and on surrender of the remnants thereof, if any, the Borrower will promptly replace such Note, without charge to the Creditor Parties, with a similar Note. If such replacement Note replaces a lost Note it shall bear an endorsement to that effect. Any lost Note subsequently found shall be surrendered to the Borrower and cancelled. The Agent or the relevant Lender shall indemnify the Borrower for any losses, claims or damages resulting from the loss of such Note. |
| 5 | Interest and Hedging |
| 5.1 | Normal rate of interest |
Subject to the provisions of this Agreement, the rate of interest on the Loan or any part of each Advance for each Interest Period shall be the aggregate of the Margin, Term SOFR and the Mandatory Costs, if any.
| 5.2 | Payment of normal interest |
Subject to the provisions of this Agreement, interest on the Loan in respect of each Interest Period shall be paid by the Borrower on the last day of that Interest Period.
| 5.3 | Payment of accrued interest |
In the case of an Interest Period longer than three (3) months, accrued interest shall be paid every three (3) months during that Interest Period and on the last day of that Interest Period.
| 5.4 | Notification of Interest Periods and rates of normal interest |
The Agent shall notify the Borrower and each Lender of:
| (a) | each rate of interest; and |
| (b) | the duration of each Interest Period (as determined under Clause 6.2), |
as soon as reasonably practicable after each is determined.
| 5.5 | Inability to Determine Rates |
Subject to Clause 5.6 (Benchmark Replacement Setting), if:
| (a) | the Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on or prior to the first day of any Interest Period; or |
then, in each case, the Agent will promptly so notify the Borrower and each applicable Lender. Upon notice thereof by the Agent to the Borrower, any obligation of the Lenders to make Loans shall be suspended until the Agent (with respect to clause (b), at the instruction of the relevant Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending Drawdown Notice or, failing that, the Borrower will be deemed to have converted any such Drawdown Notice into a request for a Loan bearing interest at the sum of (i) the Federal Funds Rate plus (ii) 0.50% and (iii) the Margin, in the amount specified therein and any outstanding affected Loans will (1) be deemed to have been converted into such a request at the end of the applicable Interest Period or (2) be prepaid in full immediately at the end of the applicable Interest Period; provided that if no election is made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice, the Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Clause 8.18.
| 5.6 | Benchmark Replacement Setting. |
| (a) | Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Finance Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Finance Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Finance Document and (y) if a Benchmark Replacement is determined in accordance with |
| (b) | No Master Agreement shall be deemed to be a “Finance Document” for purposes of this Clause 5.6 (Benchmark Replacement Setting). |
| (f) | Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending Drawdown Notice for an Advance of Loans to be made during any Benchmark Unavailability Period, or, failing that, the Borrower will be deemed to have converted any such Drawdown Notice into a request for a Loan bearing interest at the sum of (i) the Federal Funds Rate plus (ii) 0.50% and (iii) the Margin, in the amount specified therein; and any outstanding affected Loans will be deemed to have been converted into such a request at the end of the applicable Interest Period. |
| 5.7 | Notice of prepayment |
If the Borrower does not agree with an interest rate set by the Agent under Clause 7.3, the Borrower may give the Agent not less than 15 Business Days’ notice of its intention to prepay the Loan (without premium or penalty but subject to any amounts payable under Clause 8.9) at the end of the Interest Period set by the Agent.
| 5.8 | Prepayment; termination of Commitments |
A notice under Clause 5.7 shall be irrevocable; the Agent shall promptly notify the Lenders of the Borrower’s notice of intended prepayment and:
| (a) | on the date on which the Agent serves that notice, the Total Commitments shall be cancelled; and |
| (b) | on the last Business Day of the Interest Period set by the Agent, the Borrower shall prepay (without premium or penalty but subject to any amounts payable under Clause 8.9) the Loan, together with accrued interest thereon at the applicable rate plus the Margin and the Mandatory Costs (if any). |
| 5.9 | Application of prepayment |
The provisions of Clause 8 shall apply in relation to the prepayment.
| 5.10 | Hedging |
| (a) | The Borrower may enter into Master Agreements and shall after the date it has entered into a Master Agreement maintain such Master Agreements in accordance with this Clause 5.10. |
| (b) | Each Master Agreement shall: |
| (i) | be with a Swap Bank; |
| (ii) | have settlement dates coinciding with the last day of each Interest Period; and |
| (iii) | provide the Termination Currency (as defined in the relevant Master Agreement) shall be Dollars. |
| (c) | The rights of the Borrower under the Master Agreement shall be assigned by way of security under a Master Agreement Assignment. |
| (d) | The parties to each Master Agreement must comply with the terms of that Master Agreement. |
| (e) | Neither a Swap Bank nor the Borrower may amend, supplement, extend or waive the terms of any Master Agreement without giving prior written notice to the Security Trustee; |
| (f) | Paragraph (e) above shall not apply to an amendment, supplement or waiver that is administrative and mechanical in nature and does not give rise to a conflict with any provision of this Agreement or any Master Agreement Assignment. |
| (h) | Paragraph (g) above shall not apply to any Transactions in respect of any Master Agreement under which the Borrower has no actual or contingent indebtedness. |
| (i) | The Agent must make a request under paragraph (g) above if so required by a Swap Bank. |
| (j) | (i) If a Swap Bank or the Borrower terminates or closes out a transaction in respect of a Master Agreement (in whole or in part), (ii) in the event of non-payment under a Master Agreement by the Borrower unless the payment is made within three (3) Business Days of its due date; or (iii) if an Event of Default has occurred under Clauses 26.7, 26,8 or 26.9, the Borrower shall promptly notify the Agent of that termination or close out. |
| (k) | If a Swap Bank is entitled to terminate or close out any transaction in respect of any Master Agreement, such Swap Bank shall promptly terminate or close out such transaction following a request to do so by the Security Trustee. |
| (l) | Each Swap Bank consents to, and acknowledges notices of, the charging or assigning by way of security by the Borrower pursuant to the relevant Master Agreement Assignment of its rights under the Master Agreements to which it is party in favour of the Security Trustee. |
| (m) | Any such assigning by way of security is without prejudice to, and after giving effect to, the operation of any payment or close-out netting in respect of any amounts owing under any Master Agreement. |
| (n) | Neither the Borrower nor any Swap Bank shall assign any of its rights or transfer any of its rights or obligations under a Master Agreement without the consent of the Security Trustee. |
| (o) | If a Lender ceases to be a party to this Agreement, such Lender or its Affiliate which is party to a Master Agreement may cease to be a party to such Master Agreement. |
| 6 | Interest Periods |
| 6.1 | Commencement of Interest Periods |
The first Interest Period applicable to an Advance shall commence on the relevant Drawdown Date and each subsequent Interest Period shall commence on the expiry of the preceding Interest Period.
| 6.2 | Duration of normal Interest Periods |
Subject to Clause 6.3, each Interest Period shall be:
| (b) | in the case of the first Interest Period applicable to each Advance of the Term Loan Facility, a period ending on the date of the first Repayment Instalment; |
| (c) | in the case of the first Interest Period applicable to each Advance other than the first Advance, a period ending on the last day of the Interest Period applicable to the prior Advances then outstanding, whereupon all Advances shall be consolidated and treated as a single Advance; |
| (d) | 3 months, if the Borrower fails to notify the Agent by the time specified in paragraph (a); or |
| (e) | such other period as the Agent may, with the authorization of all the Lenders, agree with the Borrower. |
| 6.3 | No Interest Period to extend beyond Maturity Date |
No Interest Period shall end after the Maturity Date and any Interest Period which would otherwise extend beyond the Maturity Date shall instead end on the Maturity Date.
| 7 | Default Interest |
| 7.1 | Payment of default interest on overdue amounts |
A Security Party shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by such Security Party under any Finance Document which the Agent, the Security Trustee or any other designated payee does not receive on or before the relevant date, that is:
| (a) | the date on which the Finance Documents provide that such amount is due for payment; or |
| (b) | if a Finance Document provides that such amount is payable on demand, the date on which the demand is served; or |
| (c) | if such amount has become immediately due and payable under Clause 21.4, the date on which it became immediately due and payable. |
| 7.2 | Default rate of interest |
Interest shall accrue on an overdue amount from (and including) the relevant date until the date of actual payment (as well after as before judgment) at the rate per annum determined by the Agent to be 2.00 percent above:
| (a) | in the case of an overdue amount of principal, the rate set out at Clauses 7.3(a); or |
| (b) | in the case of any other overdue amount, the rate set out at Clause 7.3(b). |
| 7.3 | Calculation of default rate of interest |
The rates referred to in Clause 7.2 are:
| (a) | the rate applicable to the overdue principal amount immediately prior to the relevant date (but only for any unexpired part of any then current Interest Period); and |
| 7.4 | Notification of interest periods and default rates |
The Agent shall promptly notify the Lenders and each relevant Security Party of each interest rate determined by the Agent under Clause 7.3 and of each period selected by the Agent for the purposes of paragraph (b) of that Clause; but this shall not be taken to imply that such Security Party is liable to pay such interest only with effect from the date of the Agent’s notification.
| 7.5 | Payment of accrued default interest |
Subject to the other provisions of this Agreement, any interest due under this Clause: (a) shall be paid on the last day of the period by reference to which it was determined, (b) the payment shall be made to the Agent for the account of the Creditor Party to which the overdue amount is due, and (c) it shall be immediately payable by the Borrower on demand by the Agent.
| 7.6 | Compounding of default interest |
Any such interest which is not paid at the end of the period by reference to which it was determined shall thereupon be compounded.
| 7.7 | Application to Master Agreements |
For the avoidance of doubt, this Clause 7 does not apply to any amount payable under a Master Agreement in respect of any continuing Designated Transaction as to which section 9(h) (Interest and Compensation) of that Master Agreement shall apply.
| 8 | Repayment, Prepayment, Reduction and Cancellation |
| 8.1 | Reduction and Repayment of the Total Commitments |
| (d) | The Borrower shall repay each Accordion Advance in equal quarterly instalments in the amount determined by the Agent (and agreed with the Borrower and notified to the relevant Lenders) based on an age adjusted 20-year to $0 profile for the relevant Accordion Vessel (each, an “Accordion Repayment Instalment”). All remaining amounts of the Accordion Facility shall be repaid in full on the Maturity Date. All repaid amounts in respect of the Accordion Facility shall cause the Total Commitments to be cancelled in the same amount. |
| (e) | The first Accordion Repayment Installment shall be repaid on the first Repayment Date occurring after the Drawdown Date in respect of such Accordion Advance; provided however if the first Repayment Date is less than 75 days after the relevant Drawdown Date, then the first Accordion Repayment Installment shall be repaid on the second Repayment Date occurring after the Drawdown Date in respect of such Accordion Advance. |
| 8.2 | Maturity Date |
On the Maturity Date, the Borrower shall repay all outstanding Advances (if any) and shall additionally pay to the Agent for the account of the Creditor Parties all other sums then accrued or owing under any Finance Document.
| 8.3 | Voluntary prepayment |
Subject to the conditions set forth in Clause 8.4, the Borrower may prepay the whole or any part of the Term Loan Facility, the Revolving Credit Facility or the Accordion Facility without premium or penalty.
| 8.4 | Conditions for voluntary prepayment |
The conditions referred to in Clause 8.3 are that:
| (a) | a partial prepayment shall be not less than $5,000,000 in respect of the Term Loan Facility, $5,000,000 in respect of the Accordion Facility and $1,000,000 in respect of the Revolving Credit Facility, and (unless such partial cancellation is in the outstanding amount of a Tranche) in a multiple of $1,000,000; |
| (b) | the Agent has received from the Borrower at least three (3) Business Days’ prior written notice specifying the amount to be prepaid and the date on which the prepayment is to be made; and |
| satisfied by the Borrower certifying that no consents are required and that no regulations need to be complied with). |
| 8.5 | Effect of notice of prepayment |
A prepayment notice may not be withdrawn or amended without the consent of the Agent, given with the authorization of the Majority Lenders (such consent not to be unreasonably withheld, delayed or conditioned), and the amount specified in the prepayment notice shall become due and payable by the Borrower on the date for prepayment specified in the prepayment notice.
| 8.6 | 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 Borrower under Clause 8.4(c).
| 8.7 | Mandatory reduction and prepayment upon Sale, Refinancing or Total Loss |
If a Vessel is sold or becomes a Total Loss, or the Advance(s) incurred hereunder relating to such Vessel is/are refinanced, such Vessel’s Tranche under the Term Loan Facility or the Accordion Facility (as the case may be) shall be repaid and cancelled in full, and the Revolving Credit Commitments shall be reduced and cancelled by an amount equal to $5,000,000 to give effect to the release of the Security Interests in such Vessel under this Agreement and the Borrower shall additionally prepay any amount required to ensure compliance with the Collateral Maintenance Ratio:
| (a) | in the case of a sale or a refinancing, on or before the date on which the sale is completed by delivery of the Vessel to the buyer or the refinancing is completed; or |
| (c) | in the case of a Total Loss under paragraph (c) or (d) of the definition of the Total Loss Date, on the date on which the Vessel becomes a Total Loss. |
Following the sale of a Vessel and the prepayment of all amounts required pursuant to Clause 8.7 and 8.9, at the cost of the Borrower, the Creditor Parties shall release the relevant Owner Guarantor and Security Interest over the relevant Vessel (and its Earnings, Insurances and Charter) from this Agreement.
| 8.8 | Mandatory prepayment and cancellation upon Change of Control or Delisting Event |
If a Change of Control or Delisting Event occurs, the Borrower shall immediately prepay the total amount of all the outstanding Advances in full, and the Total Commitments shall be automatically cancelled.
| 8.9 | Amounts payable on prepayment |
A prepayment shall be made together with accrued interest (and any other amount payable under Clause 22 or otherwise) in respect of the amount prepaid and, if the prepayment is not made on the last day of an Interest Period together with any sums payable under Clause 8.18 or Clause 22.1(b), but without premium or penalty.
| 8.10 | Reborrowing |
Subject to Clause 8.1 and 8.7, any amount of the Revolving Credit Facility which has been repaid or prepaid may be reborrowed during the Availability Period. No amount of the Term Loan Facility or the Accordion Facility which has been repaid or prepaid may be reborrowed during the Availability Period.
| 8.11 | Voluntary cancellation of Total Commitments |
Subject to the conditions set forth in Clause 8.12, the Borrower may cancel the whole or any part of the Total Commitments without premium or penalty.
| 8.12 | Conditions for voluntary cancellation of Total Commitments |
The conditions referred to in Clause 8.11 are that:
| (a) | a partial cancellation shall be in the amount at least $1,000,000 and a multiple of $1,000,000; and |
| (b) | the Agent has received from the Borrower at least three (3) Business Days’ prior written notice specifying the amount to be cancelled, the date on which the cancellation is to take effect and whether such cancellation applies to the Term Loan Facility, Revolving Credit Facility or the Accordion Facility. |
| 8.13 | Effect of notice of cancellation |
The service of a cancellation notice shall cause the amount of the Total Commitments specified in the notice to be permanently cancelled and any partial cancellation shall be applied against the relevant Commitments of each Lender pro rata. For the avoidance of doubt, amounts of the Total Commitments cancelled pursuant to this Agreement may not be reinstated.
| 8.14 | Notification of notice of cancellation |
The Agent shall notify the Lenders promptly upon receiving a cancellation notice.
| 8.15 | Application of prepayments, Commitment cancellations and reductions |
| (a) | In the case of any voluntary prepayment in part of the Term Loan Facility or the Accordion Facility under Clause 8.3, any partial prepayment shall be applied pro rata across the Repayment Instalments (excluding the Balloon Instalment) of the Term Loan Facility or the Accordion Facility, as applicable. |
| (b) | Except as provided in Clause 8.7, in the case of any mandatory prepayment in part of the Term Loan Facility or the Accordion Facility required under this Agreement (including pursuant to Clause 15 (Collateral Maintenance Ratio)), any such partial prepayment shall be applied pro rata across all the then remaining Repayment Instalments and Balloon Instalment under the Revolving Facility, the Term Loan Facility and the Accordion Facility (pro rata across each Tranche). |
| (c) | In the case of any prepayment under Clause 24 or Clause 25, such prepayment of Term Loan Advances and/or the Accordion Advances shall be applied against such Notifying Lender’s portion of the Repayment Instalments and Balloon Instalment. |
| 8.16 | Unwinding of Designated Transactions |
On or prior to any repayment, prepayment, reduction or cancellation of the Loan (or any part thereof) under this Clause 8 or any other provision of this Agreement, the 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 amortization) exceed the amount of the Loan as reducing from time to time thereafter pursuant to Clause 8.1.
| 8.17 | Right of cancellation in relation to a Defaulting Lender |
| (c) | The Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders. |
| 8.18 | Compensation for Losses |
In the event of (a) the payment of any principal of any Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the failure to borrow or prepay any Loan on the date specified in any notice delivered pursuant hereto, or (c) the assignment of any Loan other than on the last day of the Interest Period applicable thereto, as a result of a request by the Borrower pursuant to Clause 25.5, then, in connection with (a), (b) or (c) above, the Borrower shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees payable. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Clause shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.
| 9 | Conditions Precedent |
| 9.1 | Documents, fees and no default |
Each Lender’s obligation to make its Contribution to an Advance is subject to the following conditions precedent:
| (a) | that, the Agent receives: |
| (i) | on or before the service of the first Drawdown Notice, the documents described in Part A of Schedule 4 in form and substance satisfactory to the Agent and its lawyers; and |
| (ii) | on or before the Original Effective Date (or the relevant Drawdown Date in the case of an Accordion Advance with a new lender), such documentation and other evidence as is reasonably requested by the Agent or a Lender in order for each to carry out and be |
| satisfied with the results of all necessary “know your customer” or other checks which it is required to carry out in relation to the transactions contemplated by this Agreement and the other Finance Documents, including without limitation obtaining, verifying and recording certain information and documentation that will allow the Agent and each of the Lenders to identify each Security Party in accordance with the requirements of the PATRIOT Act; |
| (d) | that the Agent has received or is satisfied that it will receive on or before the making of any Accordion Advance, such documents and evidence described in Part D of Schedule 4 in form and substance satisfactory to the Agent; |
| (e) | that, on or before the service of any Drawdown Notice, the Agent has received (or is satisfied that it will receive on or before the making of such Advance) payment of any commitment fee and any other fee set out in a Fee Letter, each referred to in Clause 21.1, which was due and payable in accordance with the terms of this Agreement and the Fee Letter, and has received (or is satisfied that it will receive) payment of the expenses which are due and payable referred to in Clause 21.2; |
| (f) | that both at the date of each Drawdown Notice and at each Drawdown Date: |
| (i) | no Event of Default or Potential Event of Default has occurred or would result from the borrowing of the Advance; |
| (ii) | the representations and warranties in Clause 10 and those of the Borrower or any other Security Party which are set out in the other Finance Documents (other than those relating to a specific date) would be true and not misleading if repeated on each of those dates with reference to the circumstances then existing; |
| (iii) | none of the circumstances contemplated by Clause 5.5 has occurred and is continuing; and |
| (iv) | to the best knowledge of the Parent Guarantor, there has been no material change in the consolidated financial condition, operations or business of the Borrower and its subsidiaries since the date on which the Borrower provided information concerning those topics to the Agent and/or any Lender; |
| (g) | that, on or before the Original Closing Date, the Agent has received evidence of the Maximum Available Amount; |
| (h) | that, if the requested Advance is a Revolving Advance, if the Collateral Maintenance Ratio were applied immediately following the making of such Advance, the Borrower would not be required to provide additional Collateral or prepay part of the Loan under Clause 15 based on the most recently available appraisals determining the Fair Market Value of the Vessels; and |
| (i) | 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 authorization of the Majority Lenders, request by notice to the Borrower at least three (3) Business Days prior to the relevant Drawdown Date. |
| 9.2 | Waiver of conditions precedent |
| (a) | Except as provided in paragraph (b) below, notwithstanding anything in Clause 9.1 to the contrary, if the Agent, with the consent of all Lenders, permits an Advance to be borrowed before certain of the conditions referred to in Clause 9.1 are satisfied, the Borrower shall ensure that such conditions are satisfied within such reasonable period after the relevant Drawdown Date as the Agent may specify in consultation with the Borrower. |
| (b) | Only if required under the terms of an Accordion Vessel Acquisition Contract, an Accordion Advance may be borrowed before the applicable conditions set forth in Clause 9.1 are satisfied and: |
| (i) | each Lender making such Accordion Advance agrees to fund its Contribution on a day not more than five (5) Business Days prior to the Delivery Date of that Accordion Vessel; and |
provided that if delivery of such Accordion Vessel does not occur within five (5) Business Days after the scheduled Delivery Date, the funds held at the Seller's Bank or the Escrow Agent shall be returned to the Agent for further distribution to the Lenders who made such Accordion Advance.
For the avoidance of doubt, the parties hereto acknowledge and agree that:
| (1) | the date on which the relevant Lenders fund the Accordion Advance constitutes the Drawdown Date in respect of such Accordion Advance and all interest and fees thereon shall accrue from such date; |
| (2) | the Agent and the Lenders suspend fulfillment of those conditions precedent at the discretion of the Agent (with the consent of each of the Lenders making the Accordion |
| Advance) solely for the time period on and between such Drawdown Date and the relevant Delivery Date; |
| 10 | Representations and Warranties |
| 10.1 | General |
The Borrower and each of the Guarantors represents and warrants to each Creditor Party as of the Effective Date, the date of each Drawdown Notice, and on the first day of each Interest Period as follows.
| 10.2 | Status |
The Borrower and each Guarantor is:
| (a) | duly incorporated or formed and validly existing and in good standing under the law of its jurisdiction of incorporation or formation; and |
| (b) | duly qualified and in good standing as a foreign company in each other jurisdiction in which it owns or leases property or in which the conduct of its business requires it to so qualify or be licensed except where, in each case, the failure to so qualify or be licensed and be in good standing could not reasonably be expected to have a material adverse effect on the business, assets or financial condition of the Borrower or a Guarantor or which may affect the legality, validity, binding effect or enforceability of the Finance Documents, |
and there are no proceedings or actions pending or contemplated by any Security Party, or to the knowledge of the Borrower or any Guarantor contemplated by any third party, seeking to adjudicate such Security Party as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property.
| 10.3 | Company power; consents |
Each Security Party has the capacity and has taken all action, and no consent of any person is required, for:
| (a) | it to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted; |
| (b) | it to execute each Finance Document to which it is or is to become a party; |
| (c) | it to comply with its obligations under each Finance Document to which it is or is to become a party; |
| (d) | it to grant the Security Interests granted by it pursuant to the Finance Documents to which it is or is to become a party; |
| (e) | the perfection or maintenance of the Security Interests created by the Finance Documents (including the first priority nature thereof); and |
| (f) | the exercise by any Creditor Party of their rights under any of the Finance Documents or the remedies in respect of the Collateral pursuant to the Finance Documents to which it is a party, |
except, in each case, for consents which have been duly obtained, taken, given or made and are in full force and effect.
| 10.4 | Consents in force |
All the consents referred to in Clause 10.3 remain in force and nothing has occurred which makes any of them liable to revocation.
| 10.5 | Title |
| (a) | Each Security Party owns (i) in the case of owned real property, good and marketable fee title to and (ii) in the case of owned personal property, good and valid title to, or, in the case of leased real or personal property, valid and enforceable leasehold interests (as the case may be) in, all of its properties and assets, tangible and intangible, of any nature whatsoever, free and clear in each case of all Security Interests or claims, except for Permitted Security Interests. |
| (b) | No Security Party has created or is contractually bound to create any Security Interest on or with respect to any of its assets, properties, rights or revenues, except for Permitted Security Interests, and except as provided in this Agreement no Security Party is restricted by contract, applicable law or regulation or otherwise from creating Security Interests on any of its assets, properties, rights or revenues. |
| (c) | Each Owner Guarantor has received all deeds, assignments, waivers, consents, non-disturbance and attornment or similar agreements, bills of sale and other documents, and has duly effected all recordings, filings and other actions necessary to establish, protect and perfect such Owner Guarantor’s right, title and interest in and to the Vessel owned or to be owned by it and other properties and assets (or arrangements for such recordings, filings and other actions acceptable to the Agent shall have been made). |
| 10.6 | Legal validity; effective first priority Security Interests |
Subject to any relevant insolvency laws affecting creditors’ rights generally:
| (a) | the Finance Documents to which each Security Party is a party, constitute or, as the case may be, will constitute upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents), such Security Party’s legal, valid and binding obligations enforceable against it in accordance with their respective terms; and |
| (b) | the Finance Documents to which each Security Party is a party, create or, as the case may be, will create upon execution and delivery (and, where applicable, registration as provided for in the Finance Documents), legal, valid and binding first priority Security Interests enforceable in accordance with their respective terms over all the assets to which they, by their terms, relate; and |
| 10.7 | No third party Security Interests |
Without limiting the generality of Clauses 10.5 and 10.6, at the time of the execution and delivery of each Finance Document:
| (a) | the relevant Security Party 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 Security Interest which that Finance Document purports to create, by its terms, relates. |
| 10.8 | No conflicts |
The execution and delivery of each Finance Document, the borrowing of each Advance, and compliance with each Finance Document, will not involve or lead to a contravention of:
| (a) | any law or regulation applicable to any Security Party; or |
| (b) | the constitutional documents of any Security Party; or |
| (c) | any contractual or other obligation or restriction which is binding on any Security Party or any of its assets. |
| 10.9 | Status of Secured Liabilities |
The Secured Liabilities constitute direct, unconditional and general obligations of each Security Party and rank (a) senior to all subordinated Financial Indebtedness and (b) at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.
| 10.10 | Taxes |
| (b) | Each Security Party has timely filed or has caused to be filed all tax returns and other reports that it is required by law or regulation to file in the United States or any Pertinent Jurisdiction, |
| and has paid or caused to be paid all taxes, assessments and other similar charges that are due and payable in the United States or any Pertinent Jurisdiction, other than taxes and charges: |
| (i) | which (A) are not yet due and payable or (B) are being contested in good faith by appropriate proceedings and for which adequate reserves have been established and as to which such failure to have paid such tax does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Vessel or of criminal liability; or |
| (ii) | the non-payment of which could not reasonably be expected to have a material adverse effect on the financial condition of such Security Party. |
The charges, accruals, and reserves on the books of each Security Party respecting taxes are adequate in accordance with GAAP.
| (c) | No material claim for any tax has been asserted against a Security Party by any Pertinent Jurisdiction or other taxing authority other than claims that are included in the liabilities for taxes in the most recent balance sheet of such person or disclosed in the notes thereto, if any. |
| (d) | The execution, delivery, filing and registration or recording (if applicable) of the Finance Documents and the consummation of the transactions contemplated thereby will not cause any of the Creditor Parties to be required to make any registration with, give any notice to, obtain any license, permit or other authorization from, or file any declaration, return, report or other document with any governmental authority in any Pertinent Jurisdiction. |
| (e) | No taxes are required by any governmental authority in any Pertinent Jurisdiction to be paid with respect to or in connection with the execution, delivery, filing, recording, performance or enforcement of any Finance Document except any applicable stamp, registration or similar taxes in connection with the registration of the Finance Documents in accordance with the laws of any relevant jurisdiction. |
| (f) | The execution, delivery, filing, registration, recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party to be subject to taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Security Party. |
| 10.11 | No default |
No Event of Default or Potential Event of Default has occurred or would result from the borrowing of an Advance.
| 10.12 | Information |
All financial statements, written information and other data furnished by or on behalf of a Security Party to any of the Creditor Parties:
| (a) | Was, to the best of such Security Party’s knowledge, true and accurate at the time it was given or made in all material respects; |
| (b) | such financial statements, if any, have been prepared in accordance with GAAP; |
| (c) | to the best of any Security Party’s knowledge after due inquiry, there are no other facts or matters the omission of which would have made or make any such information false or misleading; |
| (d) | to the best of any Security Party’s knowledge after due inquiry, there has been no material adverse change in the financial condition, operations or business of the Borrower or Guarantors since the date on which such information was provided other than as previously disclosed to the Agent in writing; and |
| (e) | none of the Security Parties has any contingent obligations, liabilities for taxes or other outstanding financial obligations which are material in the aggregate except as disclosed in such statements, information and data. |
| 10.13 | No litigation |
No legal or administrative action involving a Security Party (including any action relating to any alleged or actual breach of the ISM Code, the ISPS Code, any Environmental Law or any Sanctions) has been commenced or taken by any person, or, to the Borrower’s or any Guarantor’s knowledge, is likely to be commenced or taken which, in either case, if adversely determined, would be likely to have a material adverse effect on the business, assets or financial condition of a Security Party or which may affect the legality, validity, binding effect or enforceability of the Finance Documents.
| 10.14 | Intellectual property |
Except for those with respect to which the failure to own or license could not reasonably be expected to have a material adverse effect, each Security Party owns or has the right to use all patents, trademarks, permits, service marks, trade names, copyrights, franchises, formulas, licenses and other rights with respect thereto, and have obtained assignment of all licenses and other rights of whatsoever nature, that are material to its business as currently contemplated without any conflict with the rights of others.
| 10.15 | ISM Code and ISPS Code compliance; Ballast water treatment |
Each Owner Guarantor has obtained or will obtain or will cause to be obtained all necessary ISM Code Documentation and ISPS Code Documentation in connection with the Vessel owned or to be owned by it and its operation and will be or will cause such Vessel and the Approved Manager to be in full compliance with the ISM Code and the ISPS Code. Each Owner Guarantor confirms that installation of a ballast water treatment system for its Vessel is not required under IMO regulations before the third special survey applicable to its Vessel.
| 10.16 | Anti-Bribery and Corruption laws |
| (a) | To the best knowledge of each Security Party, it has conducted and is conducting its businesses in compliance with Anti-Bribery and Corruption Laws. |
| (b) | Each Security Party has instituted and maintained systems, controls, policies and procedures designed: |
| (i) | to prevent and detect incidences of bribery and corruption; and |
| (ii) | to promote and achieve compliance with Anti-Bribery and Corruption Laws including, but not limited to, maintaining thorough and accurate books and records, and utilization of commercially reasonable efforts to ensure that the Security Party shall act in compliance with Anti-Bribery and Corruption Laws. |
| (c) | No Security Party, is (or ought reasonably to be) aware, that any of its directors or officers has: |
| (i) | to its knowledge, directly or indirectly, made, offered to make, promised to make or authorized the offer, payment, or giving of, any value, including a financial or other advantage for an improper purpose within the meaning and in violation of Anti-Bribery and Corruption Laws; |
| (ii) | to its knowledge, directly or indirectly used any corporate funds for any contribution, gift, entertainment or other expense relating to political office or activity in violation of Anti-Bribery and Corruption Laws; |
| (iii) | to its knowledge made any direct or indirect payment or transfer of value to any public official or any company employee from corporate funds in violation of Anti-Bribery and Corruption Laws; |
| (iv) | to its knowledge received directly or indirectly any bribe, rebate, payoff, influence payment, kickback or other payment or transfer of value prohibited under Anti-Bribery and Corruption Laws; or |
| (v) | been or is subject to any litigation, arbitration or administrative, regulatory or criminal proceedings or investigation with regard to any actual or alleged unlawful payment, improper transfer of value or other violation of Anti-Bribery and Corruption Laws. |
| (d) | No Security Party will directly or, to its knowledge, indirectly use the proceeds of a Loan for any purpose which would be in violation of the Anti-Bribery and Corruption Laws. |
| 10.17 | Validity and completeness of Charters. |
| (a) | Each Charter constitutes valid, binding and enforceable obligations of the Owner Guarantor party thereto in accordance with its terms and: |
| (i) | the copy of such Charter delivered to the Agent is a true and complete copy; and |
| (ii) | no amendments or additions to such Charter have been agreed nor has the Owner Guarantor party thereto waived any of its rights under such Charter. |
| 10.18 | Compliance with law; Environmentally Sensitive Material |
Except to the extent the following could not reasonably be expected to have a material adverse effect on the business, assets or financial condition of any Security Party, or affect the legality, validity, binding effect or enforceability of the Finance Documents:
| (a) | the operations and properties of each of the Security Parties comply with all applicable laws and regulations, including without limitation Environmental Laws, all necessary Environmental Permits have been obtained and are in effect for the operations and properties of each of the Security Parties and each of the Security Parties is in compliance in all material respects with all such Environmental Permits; and |
| (b) | none of the Security Parties has received notice via email, or in writing at one of its principal places of business in Connecticut, Greece or Denmark, from any person that it or any of its subsidiaries or Affiliates is potentially liable for the remedial or other costs with respect to |
| treatment, storage, disposal, release, arrangement for disposal or transportation of any Environmentally Sensitive Material, except for costs incurred in the ordinary course of business with respect to treatment, storage, disposal or transportation of such Environmentally Sensitive Material. |
| 10.19 | Ownership structure |
| (a) | All of the Equity Interests of the Borrower have been validly issued and are owned beneficially and of record by the Parent Guarantor. |
| (b) | All of the Equity Interests of each Owner Guarantor have been validly issued and are owned beneficially and of record by the Borrower. |
| (c) | All of the Equity Interests of the Borrower and each Guarantor (other than the Parent Guarantor) are free and clear of all Security Interests, other than Permitted Security Interests. |
| (d) | None of the Equity Interests of the Borrower or any Guarantor (other than the Parent Guarantor) are subject to any existing option, warrant, call, right, commitment or other agreement of any character to which the Borrower or any Guarantor (other than the Parent Guarantor) is a party requiring, and there are no Equity Interests of the Borrower or any Guarantor (other than the Parent Guarantor) outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional Equity Interests of the Borrower or any Guarantor (other than the Parent Guarantor) or other Equity Interests convertible into, exchangeable for or evidencing the right to subscribe for or purchase Equity Interests of the Borrower or any Guarantor (other than the Parent Guarantor). |
| 10.20 | ERISA |
| (b) | The execution and delivery of this Agreement and the consummation of the transactions hereunder will not involve any non-exempt “prohibited transaction” for purposes of Section 406 of ERISA or Section 4975 of the Code, other than as attributable to the status or activities of a Creditor Party. |
| (c) | None of the Security Parties is deemed to hold “plan assets” within the meaning of Section 3(42) of ERISA. |
| (d) | No ERISA Funding Event or ERISA Termination Event exists or has occurred, and no condition exists nor has any event occurred that could reasonably be expected to result in any ERISA Funding Event or ERISA Termination Event, in connection with which obligations and liabilities (contingent or otherwise) have arisen or could reasonably be expected to result in liability, individually or in the aggregate, to the Security Parties and their subsidiaries and ERISA Affiliates in excess of $500,000 following the date of this Agreement. |
| (e) | No Foreign Plan Underfunding or Foreign Plan Termination Event exists or has occurred, and no condition exists nor has any event occurred that could reasonably be expected to result in |
| any Foreign Plan Underfunding or Foreign Plan Termination Event, in connection with which obligations and liabilities (contingent or otherwise) have arisen or could reasonably be expected to result in liability, individually or in the aggregate, to the Security Parties and their subsidiaries in excess of $500,000 following the date of this Agreement. |
| 10.21 | Margin stock |
The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying Margin Stock or for any other purpose in violation of the Margin Regulations and no proceeds of any Advance will be used to buy or carry any Margin Stock or to extend credit to others for the purpose of buying or carrying any Margin Stock.
| 10.22 | Investment company, public utility, etc. |
The Borrower is not:
| (a) | an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended, or subject to regulation thereunder; or |
| (b) | a “public utility” within the meaning of the United States Federal Power Act of 1920, as amended. |
| 10.23 | Sanctions |
| (a) | No Security Party: |
| (i) | is a Restricted Party; |
| (ii) | is in breach of or has violated Sanctions; |
| (iii) | owns or controls or is an Affiliate of a Restricted Party; or |
| (iv) | has a Restricted Party serving as a director, officer or, to the best of its knowledge, employee; and |
| (b) | no Vessel is a Sanctioned Vessel. |
| 10.24 | No money laundering |
Without prejudice to the generality of Clause 2.3, in relation to the borrowing by the Borrower of an Advance, the performance and discharge of its obligations and liabilities under the Finance Documents, and the transactions and other arrangements affected or contemplated by the Finance Documents to which the Borrower is a party, the Borrower confirms that:
| (a) | it is acting for its own account; |
| (b) | it will use the proceeds of such Advance for its own benefit, under its full responsibility and exclusively for the purposes specified in this Agreement; and |
| (c) | 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 |
| 10.25 | Vessels |
As of the relevant Drawdown Date relating to a Vessel’s Tranche of the Term Loan Facility, each such Vessel is:
| (a) | in the sole and absolute ownership of the Owner Guarantor that owns such Vessel and duly registered in such Owner Guarantor’s name under the law of an Approved Flag, unencumbered save and except for the Mortgage thereon in favor of the Security Trustee recorded against it and Permitted Security Interests; |
| (b) | seaworthy for hull and machinery insurance warranty purposes and in every way fit for its intended service; |
| (c) | insured in accordance with the provisions of this Agreement and the requirements hereof in respect of such insurances will have been complied with; |
| (d) | in class in accordance with the provisions of this Agreement and the requirements hereof in respect of such classification will have been complied with; |
| (e) | managed by an Approved Manager pursuant to an Approved Management Agreement; and |
| (f) | not a vessel which any Security Party or Creditor Party is prohibited or restricted from dealing with under any Sanctions. |
| 10.26 | Place of business |
For purposes of the UCC, each Security Party has only one place of business located at, or, if it has more than one place of business, the chief executive office from which it manages the main part of its business operations and conducts its affairs is located at:
27 Signal Road
Stamford, CT 06902
| 10.27 | Solvency |
In the case of the Parent Guarantor and its subsidiaries:
| (a) | the sum of their assets, at a fair valuation, taken as a whole, do and will exceed their liabilities, including, to the extent they are reportable as such in accordance with GAAP, contingent liabilities; |
| (b) | the present fair market saleable value of their assets, taken as a whole, is not and shall not be less than the amount that will be required to pay their probable liability on their then existing debts, including, to the extent they are reportable as such in accordance with GAAP, contingent liabilities, as they mature; |
| (c) | it does not and will not have unreasonably small working capital with which to continue its business; and |
| (d) | they, on a consolidated basis, have not incurred, do not intend to incur and do not believe they will incur, debts beyond their ability to pay such debts as they mature. |
| 10.28 | Borrower’s business; Guarantors’ business |
| (a) | From the date of its formation until the date hereof, none of the Borrower or the Owner Guarantors has conducted any business other than in connection with, or for the purpose of, directly or indirectly, owning and operating the (i) Vessels, (ii) vessels previously indirectly owned by the Borrower, and (iii) in the case of the Borrower, the Excluded Vessels. |
| (b) | From the date of its formation until the date hereof, the Parent Guarantor has not conducted any business other than in connection with, or for the purpose of, directly or indirectly, owning, operating, managing and making investments in ocean-going vessels. |
| 10.29 | Immunity; enforcement; submission to jurisdiction; choice of law |
| (a) | Each Security Party is subject to civil and commercial law with respect to its obligations under the Finance Documents, and the execution, delivery and performance by each Security Party of the Finance Documents to which it is a party constitute private and commercial acts rather than public or governmental acts. |
| (b) | No Security Party or any of its properties has any immunity from suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment, set-off, execution of a judgment or from any other legal process in relation to any Finance Document. |
| (c) | It is not necessary under the laws of any Security Party’s jurisdiction of incorporation or formation, in order to enable any Creditor Party to enforce its rights under any Finance Document or by reason of the execution of any Finance Document or the performance by any Security Party of its obligations under any Finance Document, that such Creditor Party should be licensed, qualified or otherwise entitled to carry on business in such Security Party’s jurisdiction of incorporation or formation. |
| (d) | Other than the recording of each Mortgage in accordance with the laws of the Approved Flag and such filings as may be required in a Pertinent Jurisdiction in respect of certain of the Finance Documents, and the payment of fees consequent thereto, it is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement or any other Finance Document that any of them or any document relating thereto be registered, filed recorded or enrolled with any court or authority in any Pertinent Jurisdiction. |
| (e) | The execution, delivery, filing, registration, recording, performance and enforcement of the Finance Documents by any of the Creditor Parties will not cause such Creditor Party to be deemed to be resident, domiciled or carrying on business in any Pertinent Jurisdiction of any Security Party or subject to taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Security Party. |
| (f) | Under the law of each Security Party’s jurisdiction of incorporation or formation, the choice of the law of New York to govern this Agreement and the other Finance Documents to which New York law is applicable is valid and binding. |
| (g) | The submission by the Security Parties to the jurisdiction of the New York State courts and the U.S. Federal court sitting in New York County pursuant to Clause 32.2(a) is valid and |
| binding and not subject to revocation, and service of process effected in the manner set forth in Clause 32.2(d) will be effective to confer personal jurisdiction over the Security Parties in such courts. |
| (h) | As of the Effective Date, the information included in the Beneficial Ownership Certification is true and correct in all respects. |
| 10.30 | Repetition |
The representations and warranties set out in this Clause 10 are deemed to be repeated both on the date of the relevant Drawdown Notice and on the first day of each Interest Period.
| 11 | General Affirmative and Negative Covenants |
| 11.1 | Affirmative covenants |
From the first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full the Borrower and each of the Guarantors, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 11.1 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld:
| (a) | Performance of obligations. Each Security Party shall duly observe and perform its obligations under each Finance Document to which it is or is to become a party. |
| (i) | the occurrence of an Event of Default or of any Potential Event of Default or any other event (including any litigation) which is reasonably likely to materially adversely affect any Security Party’s ability to perform its obligations under each Finance Document to which it is or is to become a party; and |
| (ii) | any damage or injury caused by or to a Vessel in excess of $1,000,000. |
| (i) | no Event of Default or Potential Event of Default has occurred; or |
| (ii) | no Event of Default or Potential Event of Default has occurred, except for a specified event or matter, of which all material details are given. |
The Agent may serve requests under this Clause 11.1(c) from time to time but only if asked to do so by a Lender or Lenders having Contributions exceeding 40% of the Loan or (if no Advances have been made) Commitments exceeding 40% of the Total Commitments, and this Clause 11.1(c) does not affect the Borrower’s obligations under Clause 11.1(b).
| (d) | Notification of litigation. The Borrower will provide the Agent with details of any material litigation, arbitration or administrative proceedings involving the Borrower, any other |
| Security Party, an Approved Manager that is an affiliate of the Borrower and managing any Vessel, or any Vessel, the Earnings or the Insurances as soon as such action is instituted or it becomes apparent to the Borrower that it is likely to be instituted, unless it is clear that the litigation, arbitration or administrative proceedings cannot be considered material in the context of any Finance Document. |
| (e) | Provision of further information. The Borrower and each Guarantor will, as soon as practicable after receiving the request, provide the Agent with any additional financial or other information relating to: |
| (i) | the Borrower, the Guarantors or any their respective subsidiaries and Affiliates; |
| (ii) | any assets subject to a Security Interest in favor of the Security Trustee and the compliance of any Security Party with any Finance Document; |
| (iii) | the financial condition, assets and operations of the Security Parties; or |
| (iv) | any other matter relevant to, or to any provision of, a Finance Document, |
which may be reasonably requested by the Agent, the Security Trustee, any Lender or any Swap Bank at any time.
| (f) | Books of record and account; separate accounts. |
| (i) | Each of the Borrower and the Guarantors shall keep separate and proper books of record and account in which full and materially correct entries shall be made of all financial transactions and the assets and business of each of the Borrower and the Guarantors in accordance with GAAP, and the Agent shall have the right to examine the books and records of each of the Borrower and the Guarantors wherever the same may be kept from time to time as it reasonably sees necessary, or to cause an examination to be made by a firm of accountants selected by it, provided that, in each case, any examination shall be done during normal business hours without undue interference with the day to day business operations of the Borrower or the Guarantors, as the case may be and it may not be done more than once per year (unless an Event of Default has occurred and is continuing) and at the Agent’s sole cost and expense (unless a Potential Event of Default has occurred and is continuing, in which case such examination shall be for the Borrower’s account). |
| (ii) | Each of the Borrower and the Guarantors shall keep separate accounts and shall not co-mingle assets with each other or any other person except for funds held in the Earnings Accounts. |
| (g) | Financial reports; Sustainability Certificate. The Borrower or the Parent Guarantor, as applicable, shall prepare and deliver to the Agent: |
| (i) | as soon as reasonably practicable, but not later than 60 days after the end of each of the first three quarters of each Fiscal Year, of the Parent Guarantor, quarterly reports on Form 10-Q (or any successor form) containing the unaudited consolidated financial statements for the Parent Guarantor in respect of each such fiscal quarter, all in reasonable detail and prepared in accordance with GAAP, certified as having been reviewed by its chief financial officer (or equivalent); |
| (ii) | as soon as reasonably practicable, but not later than 120 days after the end of each Fiscal Year of the Parent Guarantor to which they relate, an annual report on Form 10-K (or any successor form) containing the audited consolidated financial statements for the Parent Guarantor in respect of such Fiscal Year, all in reasonable detail and prepared in accordance with GAAP, certified as having been audited by an Acceptable Accounting Firm; |
| (iii) | as soon as reasonably practicable, but in any event prior to the beginning of each Fiscal Year, an annual forecast, consisting of a profit and loss statement, a cash flow statement and a balance sheet for the upcoming Fiscal Year of the Parent Guarantor; |
| (iv) | together with the financial statements that delivered in (i) and (ii) above, a Compliance Certificate and Consolidated Margin Certificate signed by the chief financial officer (or equivalent) of the Parent Guarantor; |
| (v) | within 180 days after the end of each calendar year, a Sustainability Certificate for the prior calendar year; provided that, a failure to deliver such Sustainability Certificate by such date shall not result in an Event of Default but shall result in an upward Sustainability Pricing Adjustment in accordance with the definition of Sustainability Pricing Adjustment; and |
| (vi) | prior to each financial year, a consolidated budget (consisting of a profit and loss statement, a cash flow statement and a balance sheet for the upcoming financial year) with respect to the Parent Guarantor; |
| (vii) | as soon as reasonably practicable, but not later than five (5) Business Days after each June 30 and December 31, the mark-to-market value of the Transactions under the Master Agreements then in effect; and |
| (viii) | such further relevant financial information (including without limitation fleet employment, operating expenses and debt levels per Vessel, subject always to the confidentially restrictions of the charterparty agreements relating to any such Vessel, such confidentiality restrictions being subject always to requirements of United States securities laws for disclosure) as may be reasonably requested by the Agent, each to be in such form as the Agent may reasonably request; |
provided that the Parent Guarantor will be deemed to have furnished to the Agent such reports and information in (i) and (ii) above if the Parent Guarantor has filed such reports and information with the SEC via the EDGAR (or any successor system) and such reports and information are publicly available.
| (i) | at the Borrower’s expense, not later than thirty (30) days after the end of each of the second and fourth fiscal quarters; |
| (ii) | at the Lenders’ expense, at all other times upon the request of the Agent or the Majority Lenders, unless an Event of Default has occurred and is continuing, in which case the Borrower shall procure it at its expense as often as requested; |
provided that if there is a difference of or in excess of 10% between the two valuations obtained, the Borrower shall, at its sole expense, obtain a third valuation from an Approved Broker appointed by the Agent in consultation with the Borrower; and provided further that for Vessels built in the same year and with similar specifications (“Sister Vessels”), valuation certificates issued by two (2) Approved Brokers setting forth the Fair Market Value for one (1) Sister Vessel shall be acceptable for each similar Sister Vessel; and provided further that so long as no Event of Default has occurred and is continuing, no valuation certificates shall be required with respect to any Vessel (including an Accordion Vessel) for which valuation certificates were delivered for such Vessel (or a Sister Vessel) within 75 days of such date.
| (i) | Taxes. Each Security Party shall prepare and timely file all tax returns required to be filed by it and pay and discharge all taxes imposed upon it or in respect of any of its property and assets before the same shall become in default, as well as all lawful claims (including, without limitation, claims for labor, materials and supplies) which, if unpaid, might become a Security Interest upon the Collateral or any part thereof, except in each case, for any such taxes (i) as are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (ii) as to which such failure to have paid does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Vessel or criminal liability, or (iii) the failure of which to pay or discharge would not be likely to have a material adverse effect on the business, assets or financial condition of the Borrower or any other Security Party or to affect the legality, validity, binding effect or enforceability of the Finance Documents. |
| (j) | Consents. Each Security Party shall obtain or cause to be obtained, maintain in full force and effect and comply with the conditions and restrictions (if any) imposed in connection with, every consent and do all other acts and things which may from time to time be necessary or required for the continued due performance of all of its obligations under each Finance Document to which it is or is to become a party, and shall deliver a copy of all such consents to the Agent promptly upon its request. |
| (k) | Compliance with applicable law. Each Security Party shall comply in all material respects with all applicable federal, state, local and foreign laws, ordinances, rules, orders and regulations now in force or hereafter enacted, including, without limitation, all Environmental Laws and regulations relating thereto, the failure to comply with which would be likely to have a material adverse effect on the financial condition of such Security Party or affect the legality, validity, binding effect or enforceability of each Finance Document to which it is or is to become a party. |
| (l) | Existence. Each Security Party shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence in good standing under the laws of its jurisdiction of incorporation or formation, such jurisdiction to be acceptable to the Lenders, provided that Marshall Islands, Liberia and Singapore are deemed acceptable. |
| (m) | Conduct of business. |
| (i) | The Borrower shall conduct business only in connection with, or for the purpose of, directly or indirectly owning and operating the Vessels and the Excluded Vessels and directly or indirectly owning the Equity Interests of each of the Owner Guarantors and Excluded Subsidiaries and such other business ancillary or incidental thereto. |
| (ii) | Each Owner Guarantor shall conduct business only in connection with, or for the purpose of, owning, managing, chartering and operating the Vessel owned by it. |
| (iii) | Each Security Party shall conduct business in its own name and observe all corporate and other formalities required by its constitutional documents and no change will be made to the legal names of the Security Parties. |
| (n) | Properties. |
| (i) | Except to the extent the failure to do so could not reasonably be expected to have a material adverse effect on the business, assets or financial condition of a Security Party or affect the legality, validity, binding effect or enforceability of the Finance Documents, each Security Party shall maintain and preserve all of its properties that are used or useful in the conduct of its business in good working order and condition, ordinary wear and tear excepted. |
| (ii) | Each Security Party shall obtain and maintain good and marketable title or the right to use or occupy all real and personal properties and assets (including intellectual property) reasonably required for the conduct of its business. |
| (iii) | Each Security Party shall maintain and protect its intellectual property and conduct its business and affairs without infringement of or interference with any intellectual property of any other person in any material respect and shall comply in all material respects with the terms of its licenses. |
| (o) | Loan proceeds. The Borrower shall use the proceeds of each Advance solely for the purposes set forth in this Agreement. |
| (p) | Change of place of business. The Borrower shall notify the Agent promptly of any change in the location of the place of business where it or any other Security Party conducts its affairs and keeps its records. |
| (q) | Pollution liability. Each Security Party shall take, or cause to be taken, such actions as may be reasonably required to mitigate potential liability to it arising out of pollution incidents or as may be reasonably required to protect the interests of the Creditor Parties with respect thereto. |
| (s) | Anti-Bribery and Corruption. Each Security Party shall: |
| (i) | conduct its businesses in compliance with Anti-Bribery and Corruption Laws; |
| (ii) | maintain policies and procedures designed to promote and achieve compliance with Anti-Bribery and Corruption Laws in force from time to time; and |
| (iii) | use commercially reasonable efforts to procure that any third party acting on its behalf shall act in such capacity in compliance in all material respects with Anti-Bribery and Corruption Laws. |
| (t) | Sanctions. |
| (i) | No Security Party shall take any action, make any omission or use (directly or indirectly) any proceeds of an Advance, in a manner that: |
| (A) | is a breach of Sanctions; and/or; |
| (B) | causes (or will cause) a breach of Sanctions by any Creditor Party. |
| (ii) | No Security Party shall, directly or indirectly, use the proceeds of the Term Loan Facility or the Revolving Credit Facility, or lend, contribute or otherwise make available such proceeds to any Restricted Party, or (ii) in any other manner that would result in a violation of Sanctions by any person (including any person participating in the Facility, whether as underwriter, advisor, investor, or otherwise). |
| (iii) | No Security Party shall fund any payment under the Loan out of proceeds derived from a Restricted Party. |
| (v) | ERISA. Promptly upon a breach of Clause 10.20 (ERISA) (or an action that would be a breach of such representation when repeated pursuant to Clause 10.30 (Repetition)), the Borrower shall furnish or cause to be furnished to the Agent, with copies for each of the Lenders, written notice thereof and the action, if any, which the relevant Security Party has taken and proposes to take with respect thereto. |
| (w) | Information provided to be accurate. All financial and other information which is provided in writing by or on behalf of any Security Party under or in connection with any Finance Document shall, to the knowledge of such Security Party after due inquiry, be true and not misleading in all material respects and shall not omit any material fact or consideration. |
| (x) | Member and creditor notices. Each of the Borrower and the Guarantors shall send the Agent, at the same time as they are dispatched, copies of all material communications which are dispatched to its (i) members or shareholders (or equivalent) or any class of them or (ii) creditors generally provided that the Parent Guarantor will be deemed to have furnished to the Agent such information if the Parent Guarantor filed such information with the SEC via EDGAR (or any successor system) and such information is publicly available. |
| (y) | Maintenance of Security Interests. Each of the Borrower and the Guarantors shall: |
| (i) | at its own cost, do all that it reasonably can to ensure that any Finance Document validly creates the obligations and the Security Interests which it purports to create; and |
| (ii) | without limiting the generality of paragraph (i), at its own cost, promptly register, file, record or enroll 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 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. |
| (z) | “Know your customer” checks. If: |
| (i) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the Effective Date; |
| (ii) | any change in the status of the Borrower or any other Security Party after the Effective Date; or |
obliges the Agent or any Lender (or, in the case of paragraph (iii), any prospective new Lender) to comply with “know your customer” or similar identification procedures in circumstances where the necessary information is not already available to it, or an existing Lender’s internal procedures require updated “know your customer” checks on a periodic basis, the Borrower shall promptly upon the request of the Agent or the Lender concerned supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or the Lender concerned (for itself or, in the case of the event described in paragraph (iii), on behalf of any prospective new Lender) in order for the Agent, the Lender concerned or, in the case of the event described in paragraph (iii), any prospective new Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
| For the avoidance of doubt, such information shall be confidential under this Agreement, 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. |
| (cc) | Further assurances. From time to time, at its reasonable expense, the Borrower and each of the Guarantors shall duly execute and deliver to the Agent such further documents and assurances as the Majority Lenders, the Swap Banks or the Agent may request to effectuate the purposes of this Agreement, the other Finance Documents or obtain the full benefit of any of the Collateral. |
| 11.2 | Negative covenants |
From the first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full the Borrower and each of the Guarantors, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 11.2 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld:
| (a) | Security Interests. (i) None of the Borrower or the Guarantors (other than the Parent Guarantor) shall create, assume or permit to exist any Security Interest whatsoever upon any of its properties or assets, whether now owned or hereafter acquired, except for Permitted Security Interests, and (ii) the Parent Guarantor shall not create, assume or permit to exist any Security Interest whatsoever upon any Collateral whether now owned or hereafter acquired, except for Permitted Security Interests. |
| (c) | No contracts other than in ordinary course of business. None of the Borrower or the Guarantors (other than Parent Guarantor) shall enter into any transactions or series of related transactions with third parties other than in the ordinary course of its business. |
| (d) | Affiliate transactions. None of the Borrower or the Owner Guarantors shall enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate other than on terms and conditions substantially as favorable to such Borrower or Owner Guarantor as would be obtainable by it at the time in a comparable arm’s-length transaction with a person other than an Affiliate. |
| (e) | Change of business. |
| (i) | No substantial change will be made to the general nature of the business of the Parent Guarantor from that carried on as at the Effective Date. |
| (ii) | The Borrower shall not change the nature of its business or commence any business other than in connection with, or for the purpose of, directly or indirectly owning and operating the Vessels and the Excluded Vessels and directly or indirectly owning the Equity Interests of each of Owner Guarantors and the Excluded Subsidiaries and such other business ancillary or incidental thereto. |
| (iii) | None of the Owner Guarantors shall change the nature of its business or commence any business other than in connection with, or for the purpose of, owning, managing, chartering and operating the Vessel owned by it and such other business ancillary or incidental thereto. |
| (g) | Increases in capital. None of the Security Parties (other than the Parent Guarantor) shall increase its capital by way of the issuance of any class or series of Equity Interests or create any new class of Equity Interests that is not subject to a Security Interest to secure the Secured Liabilities. |
| (h) | Financial Indebtedness; Trade payables. |
| (i) | None of the Borrower or the Owner Guarantors shall incur any Financial Indebtedness other than Permitted Financial Indebtedness. |
| (ii) | None of the Owner Guarantors shall incur unsecured trade credit (excluding trade credit granted by it to its vendors on normal commercial terms in the ordinary course of its trading activities which is not overdue for payment. |
| (i) | Dividends. If: |
| (i) | an Event of Default has occurred and is continuing; |
| (ii) | an Event of Default would result therefrom; |
| (iii) | the Parent Guarantor is not in compliance with any of the covenants in Clause 12 (Financial Covenants); or |
| (iv) | any payment of dividends or any form of distribution or return of capital would result in the Parent Guarantor not being in compliance with any of the covenants in Clause 12 (Financial Covenants), |
neither the Parent Guarantor nor the Borrower nor any Owner Guarantor shall declare or pay any dividends or return any capital to its equity holders or authorize or make any other distribution, payment or delivery of property or cash to its equity holders, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its Equity Interests (or acquire any rights, options or warrants relating thereto but
not including convertible debt) now or hereafter outstanding, or repay any subordinated loans to equity holders or set aside any funds for any of the foregoing purposes.
Except as provided in this Clause 11.2(i) (Dividends), neither the Borrower nor any Owner Guarantor will permit any restriction (1) to declare or pay any dividends or return any capital to the Parent Guarantor or the Borrower, respectively, or authorize or make any other distribution, payment or delivery of property or cash to the Parent Guarantor or the Borrower, respectively, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for value, any interest of any class or series of its Equity Interests (or acquire any rights, options or warrants relating thereto but not including convertible debt) now or hereafter outstanding or to pay any Financial Indebtedness owed to the Parent Guarantor or the Borrower, respectively, or (2) to repay and/or make any subordinated loans to the Parent Guarantor or the Borrower, respectively, or set aside any funds for any of the foregoing purposes, or (3) to transfer any of its assets to the Parent Guarantor or the Borrower, respectively.
| (j) | Loans and investments. None of the Owner Guarantors or the Borrower shall make any loan or advance to, make any investment in, or enter into any working capital maintenance or similar agreement with respect to any person, whether by acquisition of Equity Interests or indebtedness, by loan, guarantee or otherwise provided that (i) the Borrower shall be permitted to make investments, but not make loans or advances (other than to a Security Party subject to Clause 11.1(r)) and (ii) the Borrower shall be permitted to make other investments and enter into working capital maintenance or similar agreements in connection with its indirect ownership in the Excluded Vessels provided that any such investments or expenditure shall not exceed $2,000,000 per Excluded Vessel and $28,000,000 in the aggregate. |
| (m) | Changes to Fiscal Year and accounting policies. (i) Without the permission of the stockholders of the Parent Guarantor and providing at least thirty (30) days’ prior written notice to the Agent, none of the Borrower or the Guarantors shall change its Fiscal Year, and (ii) none of the Borrower or the Guarantors shall make or permit any change in accounting policies affecting (x) the presentation of financial statements or (y) reporting practices, except in the case of this clause (ii) in accordance with GAAP or pursuant to the requirements of applicable laws or regulations. |
| (p) | Change of location. None of the Borrower or the Guarantors shall change the location of its chief executive office or the office where its corporate records are kept or open any new office for the conduct of its business on less than thirty (30) days prior written notice to the Agent. |
| (q) | ERISA. None of the Borrowers or the Guarantors shall act, permit or fail to act in any manner that results in any of the representations set forth in Clause 10.20(b)-(e) becoming untrue on any date during the term of this Agreement, with such representations being deemed repeated on each date during the term of this Agreement for purposes of this Clause 11.2(q). |
| 12 | Financial Covenants |
| 12.1 | General |
From the Effective Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full the Parent Guarantor undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 12 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld.
| 12.2 | Minimum consolidated liquidity |
The Parent Guarantor shall at all times maintain a Consolidated Liquidity of at least equal to the greater of (a) $27,500,000, and (b) 5% of consolidated interest-bearing debt, to be tested on the last day of each fiscal quarter.
| 12.3 | Maximum Leverage Ratio |
The Parent Guarantor shall at all times maintain a ratio of Consolidated Net Debt to Consolidated Total Capitalization of not more than 0.60 to 1.00, to be tested on the last day of each fiscal quarter.
| 12.4 | Minimum Shareholders’ Equity |
The Parent Guarantor shall at all times maintain minimum Shareholders’ Equity equal to $400,000,000, to be tested on the last day of each fiscal quarter.
| 12.5 | Working Capital |
The Borrower shall at all times maintain positive Working Capital, to be tested on the last day of each fiscal quarter.
| 13 | Marine Insurance Covenants |
| 13.1 | General |
From the first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, the Borrower and each of the Guarantors, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 13 except as the Agent and the Security Trustee, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld.
| 13.2 | Maintenance of obligatory insurances |
Each Owner Guarantor shall keep the Vessel owned by it insured at its expense against:
| (a) | fire and usual marine risks (including hull and machinery, hull interest and excess risks); |
| (b) | war risks (including terrorism, piracy and confiscation); and |
| (c) | protection and indemnity risks. |
| 13.3 | Terms of obligatory insurances |
Each Owner Guarantor shall affect such insurances in respect of the Vessel owned by it:
| (a) | in Dollars; |
| (b) | in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of: |
| (i) | when aggregated with the insured values of the other Vessels subject to a Mortgage, 120% of the sum of the available Commitments and Loan outstanding; and |
| (ii) | the Fair Market Value of the Vessel owned by it; |
provided that, not less than 80% of the Fair Market Value shall be on a hull and machinery basis, while the remaining part of the insured value may be taken out by way of hull and/or freight interest insurance cover where the insurances are subject to the American Institute Clauses 1977.
| (c) | in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available in the insurance market for vessels of similar age, size and type as such Vessel under basic protection and indemnity club entry and in the international marine insurance market (in the case of oil pollution liability risks, currently $1,000,000,000); |
| (d) | in relation to protection and indemnity risks in respect of the full tonnage of the Vessel owned by it; |
| (e) | on approved terms; and |
| 13.4 | Further protections for the Creditor Parties |
In addition to the terms set out in Clause 13.3, each Owner Guarantor shall procure that the obligatory insurances affected by it shall:
| (a) | subject always to paragraph (b), name that Owner Guarantor as the sole named assured unless the interest of every other named assured is stated in the cover notes for the insurance policy and 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) to subordinate or assign its interests in the Insurances and that any deductible shall be apportioned between that Owner Guarantor and every other named assured in proportion to the aggregate 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;
| (c) | name the Security Trustee as mortgagee and 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 the 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 Owner Guarantor fails to do so. |
| 13.5 | Renewal of obligatory insurances |
Each Owner Guarantor shall:
| (b) | at least seven (7) days before the expiry of any obligatory insurance, renew that obligatory insurance; and |
| 13.6 | Copies of policies; letters of undertaking |
Each Owner Guarantor shall ensure that all brokers provide the Security Trustee with pro forma copies of all policies relating to the obligatory insurances which they are to affect or renew and of a letter or letters or undertaking in a form required by the Majority Lenders and including undertakings by the brokers that:
| (a) | they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment in accordance with the requirements of the Insurance Assignment for that Owner Guarantor’s Vessel; |
| (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 or if they cease to act as brokers; |
| (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 Owner Guarantor 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 Vessel owned by that Owner Guarantor under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Vessel 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 Vessel forthwith upon being so requested by the Security Trustee. |
| 13.7 | Copies of certificates of entry |
Each Owner Guarantor shall ensure that any protection and indemnity and/or war risks associations in which the Vessel owned by it is entered provides the Security Trustee with:
| (a) | a certified copy of the certificate of entry for that Vessel; |
| (b) | a letter or letters of undertaking in such form as may be required by the Majority Lenders; 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 Vessel. |
| 13.8 | Deposit of original policies |
Each Owner Guarantor shall ensure that all policies relating to obligatory insurances are deposited with the brokers through which the insurances are effected or renewed.
| 13.9 | Payment of premiums |
Each Owner Guarantor shall punctually pay all premiums or other sums payable in respect of the obligatory insurances and produce all relevant receipts when so required by the Security Trustee.
| 13.10 | Guarantees |
Each Owner Guarantor 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 | Compliance with terms of insurances |
No Owner Guarantor 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 Owner Guarantor shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in Clause 13.6(c)) 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 Owner Guarantor shall make any changes relating to the classification or classification society or manager or operator of the Vessel owned by it unless approved by the underwriters of the obligatory insurances; and |
| (c) | no Owner Guarantor shall employ the Vessel 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. |
| 13.12 | Alteration to terms of insurances |
No Owner Guarantor shall either make or agree to any alteration to the terms of any obligatory insurance nor waive any right relating to any obligatory insurance.
| 13.13 | Settlement of claims |
No Owner Guarantor shall settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty without the consent of the Security Trustee, and if so requested by the Security Trustee, 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.
| 13.14 | Provision of copies of communications |
Each Owner Guarantor shall provide the Security Trustee, at the time of each such communication, copies of all written communications between that Owner Guarantor and:
| (a) | the brokers; |
| (b) | the protection and indemnity and/or war risks associations; and |
| (c) | the insurance companies and/or underwriters, which relate directly or indirectly to: |
| (i) | that Owner Guarantor’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 Owner Guarantor and any of the persons referred to in paragraphs (a) or (b) relating wholly or partly to the effecting or maintenance of the obligatory insurances. |
| 13.15 | Provision of information |
In addition, each Owner Guarantor 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:
| (b) | effecting, maintaining or renewing any such insurances as are referred to in Clause 13.16 or dealing with or considering any matters relating to any such insurances; |
and that Owner Guarantor shall, forthwith upon demand, indemnify the Security Trustee in respect of all reasonable and documented fees and other expenses incurred by or for the account of the Security Trustee in connection with any such report as is referred to in paragraph (a), provided that the Security Trustee shall provide the Borrower with a “not to exceed” budget for such services for approval by the Borrower prior to the commencement of any such services, such approval not to be unreasonably withheld.
| 13.16 | Mortgagee’s interest, additional perils and political risk insurances |
The Security Trustee shall be entitled from time to time to effect, maintain and renew (i) mortgagee’s interest marine insurance, and/or (ii) mortgagee’s interest additional perils insurance 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 the Borrower and the Owner Guarantors, jointly and severally, shall upon demand fully indemnify the Security Trustee in respect of all premiums and other reasonable and documented 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.
| 13.17 | Review of insurance requirements |
The Security Trustee may and, on instruction of the Majority Lenders, shall review, at the reasonable expense of the Borrower, the requirements of this Clause 13 from time to time in order to take account of any changes in circumstances after the Effective Date which are, in the reasonable opinion of the Agent or the Majority Lenders significant and capable of affecting the relevant Security Party or a Vessel and its insurance (including, without limitation, changes in the availability or the cost of insurance coverage or the risks to which the relevant Security Party may be subject.)
| 13.18 | Modification of insurance requirements |
The Security Trustee shall notify the Borrower and the Owner Guarantors of any proposed modification under Clause 13.17 to the requirements of this Clause 13 which the Security Trustee may or, on instruction
of the Majority Lenders, shall reasonably consider appropriate in the circumstances and such modification shall take effect on and from the date it is notified in writing to the Borrower and the Owner Guarantors as an amendment to this Clause 13 and shall bind the Borrower and the Owner Guarantors accordingly.
| 13.19 | Compliance with instructions |
The Security Trustee 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 Vessel to remain at any safe port or to proceed to and remain at any safe port designated by the Security Trustee until the relevant Security Party implements any amendments to the terms of the obligatory insurances and any operational changes required as a result of a notice served under Clause 13.18.
| 14 | Vessel Covenants |
| 14.1 | General |
From the first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, the Borrower and each of the Guarantors, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 14 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld.
| 14.2 | Vessel’s name and registration; Mortgage |
Each Owner Guarantor shall:
| (a) | keep the Vessel owned by it registered in its name under the law of an Approved Flag; |
| (b) | not do, omit to do or allow to be done anything as a result of which such registration might be cancelled or imperiled; and |
| (c) | do (or fail to do) or cause or permit another person to do (or omit to do) anything which is likely to make it unlawful or contrary to Sanctions for a Security Party to perform any of its obligations under the Finance Documents; and |
| (d) | without prior notification to the Agent and without taking all such actions reasonably required by the Agent to ensure the Security Interest in the applicable Vessel and related assets under the Finance Documents remain in full force and effect (together with any applicable corporate authorizations and legal opinions), not change the name or port of registry on which such Vessel was registered when it became subject to a Mortgage; and |
| (e) | ensure the Mortgage on its Vessel remains permanently registered until released in accordance with this Agreement. |
| 14.3 | Repair and classification |
Each Owner Guarantor shall keep the Vessel 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 a class notation of 1A (or equivalent) for that Vessel with the Classification Society, free of material overdue recommendations and adverse notations; and |
| (c) | so as to comply with all laws and regulations applicable to vessels registered under the law of the Approved Flag on which that Vessel is registered or to vessels trading to any jurisdiction to which that Vessel may trade from time to time, including but not limited to the ISM Code and the ISPS Code. |
| 14.4 | Classification Society instructions and undertaking |
Each Owner Guarantor shall instruct the Classification Society referred to in Clause 14.3(b) (and use commercially reasonable efforts to procure that the Classification Society undertakes with the Security Trustee) as follows, or provide another instruction to the Classification Society on such Classification Society’s standard form and in a form acceptable to the Agent:
| (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 that Owner Guarantor’s Vessel; |
| (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 that Owner Guarantor and the Vessel owned by it either (i) electronically (through the Classification Society directly or by way of indirect access via the Borrower’s account manager and designating the Security Trustee as a user or administrator of the system under its account) or (ii) in person at the offices of the Classification Society, and to take copies of them electronically or otherwise; |
| (c) | to notify the Security Trustee immediately in writing if the Classification Society: |
| (i) | receives notification from that Owner Guarantor or any other person that that Vessel’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 condition of class or a recommendation, or a change, suspension, discontinuance, withdrawal or expiry of that Vessel’s class under the rules or terms and conditions of that Owner Guarantor’s or that Vessel’s membership of the Classification Society; |
| (d) | following receipt of a written request from the Security Trustee: |
| (i) | to confirm that that Owner Guarantor 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 that Owner Guarantor 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 Owner Guarantor shall make any modification or repairs to, or replacement of, the Vessel owned by it or equipment installed on that Vessel which would materially alter the structure, type or performance characteristics of that Vessel or in a manner which materially reduces its value or negatively impacts its operations.
| 14.6 | Removal of parts |
No Owner Guarantor shall remove any material part of the Vessel owned by it, or any item of equipment installed on, that Vessel 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 favor of any person other than the Security Trustee and becomes on installation on that Vessel, the property of that Owner Guarantor and subject to the security constituted by the Mortgage, provided that an Owner Guarantor may install and remove equipment owned by a third party if the equipment can be removed without any risk of damage to the Vessel owned by it.
| 14.7 | Surveys |
Each Owner Guarantor, at its sole expense, shall submit the Vessel owned by it regularly to all periodical or other surveys which are required for classification purposes and, if so required by the Majority Lenders, provide the Security Trustee, at that Owner Guarantor’s sole expense, with a copy of any survey reports.
| 14.8 | Inspection |
Each Owner Guarantor shall permit the Security Trustee (by surveyors or other persons appointed by it for that purpose at the cost of the Borrower and that Owner Guarantor) to board the Vessel owned by it at all reasonable times (provided that unless an Event of Default has occurred and is continuing, there shall be no more than two (2) such persons permitted aboard the relevant Vessel at any time and any such person shall be appropriately insured against any personal injury sustained or death occurring abord a Vessel) but not more than one time per year with fifteen (15) Business Days prior written notice to the relevant Owner Guarantor to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections. The Security Trustee shall ensure that the operation and commercial employment of that Vessel is not unreasonably interfered with, including requiring a deviation or causing a breach of any charterparty.
| 14.9 | Prevention of and release from arrest |
Each Owner Guarantor shall promptly discharge (but no sooner than the payment terms required in each case):
| (a) | all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Vessel owned by it, the Earnings or the Insurances; |
| (b) | all taxes, dues and other amounts charged in respect of the Vessel owned by it, the Earnings or the Insurances; and |
| (c) | all other accounts payable whatsoever in respect of the Vessel owned by it, the Earnings or the Insurances, |
and, forthwith upon receiving notice of the arrest of the Vessel owned by it, or of its detention in exercise or purported exercise of any lien or claim, that Owner Guarantor shall procure its release by providing bail or otherwise as the circumstances may require (except to the extent such arrest or detention results from illegal sovereign action).
| 14.10 | Compliance with laws etc. |
The Borrower and each Guarantor shall:
| (a) | comply, or procure material compliance with, all laws or regulations: |
| (i) | relating to its business generally; or |
| (ii) | in the case of each Owner Guarantor, relating to the ownership, employment, operation and management of the Vessel owned by it, |
including but not limited to the ISM Code, the ISPS Code, the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the IMO, all Environmental Laws and all Sanctions;
| (c) | in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Vessel owned by it to enter or trade to any zone which is declared a war zone by any government or by that Vessel’s war risks insurers unless the prior written consent of the Majority Lenders has been given and that Owner Guarantor has (at its expense) effected any special, additional or modified insurance cover which the Majority Lenders may require; and |
| (d) | prevent the Vessel from being used, directly or, to the best of its knowledge, indirectly |
| (i) | by, or for the benefit of, any Restricted Party in breach of Sanctions; and/or |
| (ii) | in any trade which would reasonably be expected to expose the Vessel, any Creditor Party, any manager of the Vessel, the ship’s crew or the Vessel’s insurers to enforcement proceedings or any other negative consequences whatsoever arising from Sanctions; |
| (e) | not cause or permit a Vessel to be registered in a Sanctioned Country; |
| (f) | not cause or permit a Vessel to be used in or otherwise to go to, stop in or call at, a Sanctioned Country; and |
| (g) | ensure that each Charter in respect of a Vessel contains contractual language which has the effect of prohibiting the use of the Vessel in violation of any Sanctions. |
| 14.11 | Provision of information |
Each Owner Guarantor shall promptly provide the Security Trustee with any information which the Majority Lenders reasonably request regarding the Vessel owned by it, its employment, position, use or operation, including details of towages and salvages.
| 14.12 | Notification of certain events |
Each Owner Guarantor shall immediately notify the Security Trustee by Email, 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 Vessel owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss; |
| (c) | any requirement or condition made by any insurer or classification society or by any competent authority which is not promptly complied with; |
| (d) | any arrest or detention of the Vessel owned by it, any exercise or purported exercise of any Security Interest on that Vessel or the Earnings or any requisition of that Vessel for hire; |
| (e) | any confirmed dry docking of the Vessel owned by it; |
| (f) | any Environmental Claim made against that Owner Guarantor or in connection with the Vessel owned by it, or any Environmental Incident; |
| (g) | any legal or administrative action taken by any Sanctions Authority against or affecting any Security Party or any Vessel; |
| (h) | any claim for breach of the ISM Code or the ISPS Code being made against that Owner Guarantor, the Approved Manager or otherwise in connection with the Vessel owned by it; or |
| (i) | any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with; |
and that Owner Guarantor shall keep the Security Trustee advised in writing on a regular basis and in such detail as the Security Trustee shall require of that Owner Guarantor’s, an 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 Owner Guarantor shall:
| (a) | let the Vessel owned by it on demise or bareboat charter for any period; |
| (b) | charter the Vessel owned by it otherwise than on bona fide arm’s length terms at the time when that Vessel is fixed (it being understood and agreed that a charter entered into with Helios LPG Pool shall not be automatically deemed to not be on arm’s length terms by virtue of such charter being entered into with Helios LPG Pool); |
| (c) | appoint a manager of the Vessel owned by it other than an Approved Manager or agree to any material alteration to the terms or termination of any Approved Management Agreement; |
| (d) | de-activate or lay up the Vessel owned by it; or |
| (e) | change the classification society of the Vessel owned by it other than to another Classification Society; or |
| (f) | charter in any vessel from a third party; or |
| (g) | change the flag of the Vessel other than to another Approved Flag and provided the Owner Guarantor has taken all such actions reasonably required by the Agent to ensure the Security Interest in the applicable Vessel and related assets under the Finance Documents remain in full force and effect following such change (together with any applicable corporate authorizations and legal opinions); |
and in the case of paragraphs (d) or (f) above, without the consent of the Lenders, not to be unreasonably withheld.
| 14.14 | Copies of Charters; Charter Assignment |
Provided that all approvals necessary under Clause 14.13 have been previously obtained, each Owner Guarantor shall:
| (a) | furnish promptly to the Agent a true and complete copy of any Charter, for the Vessel owned by it, all other documents related thereto and a true and complete copy of each material amendment or other modification thereof; and |
| (b) | in respect of any such Charter, execute and deliver to the Agent a Charter Assignment and execute and deliver to the charterer the relevant notice required to be delivered thereunder. |
| 14.15 | Notice of Mortgage |
Each Owner Guarantor shall keep the Mortgage registered against the Vessel owned by it as a valid first preferred or first priority mortgage, as the case may be, carry on board that Vessel a certified copy of the Mortgage and place and maintain in a conspicuous place in the navigation room of that Vessel a laminated printed notice stating that such Vessel is mortgaged by that Owner Guarantor to the Security Trustee.
| 14.16 | Sharing of Earnings |
No Owner Guarantor shall enter into any agreement or arrangement for the sharing of any Earnings (other than a pooling arrangement approved pursuant to the terms of this agreement) with anyone else other than the other Owner Guarantors.
| 14.17 | ISPS Code |
Each Owner Guarantor shall comply with the ISPS Code and in particular, without limitation, shall:
| (a) | procure that the Vessel owned by it and the company responsible for that Vessel’s compliance with the ISPS Code comply with the ISPS Code; and |
| (b) | maintain for that Vessel an ISSC; and |
| (c) | notify the Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC. |
| 14.18 | Green Passport |
Each Owner Guarantor will procure that the Vessel owned by it maintains and carries on board a Green Passport, or equivalent document acceptable to the Agent.
| 15 | Collateral Maintenance Ratio |
| 15.1 | General |
From the first Drawdown Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, the Borrower undertakes with each Creditor Party to comply with the following provisions of this Clause 15 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld.
| 15.2 | Collateral Maintenance Ratio |
If, at any time, the Agent notifies the Borrower that:
| (a) | the aggregate Fair Market Value of the Vessels subject to a Mortgage and not the subject of a Total Loss; plus |
| (b) | the net realizable value of any additional Collateral previously provided under this Clause 15, |
is below 145% of the Loans outstanding (such ratio being the “Collateral Maintenance Ratio”), the Agent (acting upon the instruction of the Majority Lenders) shall have the right to require the Borrower to comply with the requirements of Clause 15.3.
| 15.3 | Provision of additional Collateral; prepayment |
If the Agent serves a notice on the Borrower under Clause 15.2, the Borrower shall prepay such part (at least) of the Term Loan Facility, the Accordion Facility or the Revolving Facility (in its discretion) as will eliminate the shortfall on or before the date falling fourteen (14) days after the date on which the Agent’s notice is served under Clause 15.2 (the “Prepayment Date”) unless on or prior to the Prepayment Date it has provided, or ensured that a third party has provided, additional cash or security over other assets which, in the opinion of the Majority Lenders, has a net realizable value at least equal to the shortfall and which has been documented in such terms as the Agent may, with the authorization of the Majority Lenders, approve or require.
| 15.4 | Value of additional vessel Collateral |
The net realizable value of any additional cash or other assets which is provided under Clause 15.3 and which consists of a Security Interest over a vessel shall be that shown by a valuation complying with the definition of Fair Market Value.
| 15.5 | Valuations binding |
Any valuation under Clause 15.3 or 15.4 shall be binding and conclusive as regards the Borrower and the Guarantors, as shall be any valuation which the Majority Lenders make of any additional cash or other assets which does not consist of or include a Security Interest.
| 15.6 | Provision of information |
The Borrower shall promptly provide the Agent and any Approved Broker acting under Clause 15.4 with any information which the Agent or the Approved Broker may request for the purposes of the valuation; and, if the Borrower fails 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 considers prudent.
| 15.7 | Payment of valuation expenses |
Without prejudice to the generality of the Borrower’s obligations under Clauses 21.2, 21.3 and 22.3, the Borrower shall, on demand, pay the Agent the amount of the fees and expenses of any Approved Broker or other expert instructed by the Agent under this Clause 15 and all legal and other expenses incurred by any Creditor Party in connection with any matter arising out of this Clause 15, provided that, for the avoidance of doubt, for so long as no Event of Default has occurred and is continuing, the Borrower shall be required to deliver and be responsible for the costs of valuations of the Vessels only on a semi-annual basis in accordance with the terms of this Agreement.
| 15.8 | Release of additional Collateral |
Any additional Collateral provided pursuant to Clause 15.3 above shall be released within five (5) Business Days of the Borrower’s request provided the Collateral Maintenance Ratio has been met without such additional Collateral on the next testing date for which valuations are provided under Clause 11.1(h)(i).
| 15.9 | Application of prepayment |
Clause 8 shall apply in relation to any prepayment pursuant to Clause 15.3.
| 16 | Guarantee |
| 16.1 | Guarantee and indemnity |
In order to induce the Lenders to make the Loan to the Borrower and to induce the Swap Banks to enter into the Designated Transactions with the Borrower, each Guarantor irrevocably and unconditionally, jointly and severally:
| (b) | undertakes with each Creditor Party that whenever the Borrower does not pay any Guaranteed Secured Liabilities when due, such Guarantor shall immediately on demand pay that Guaranteed Secured Liability as if it were the primary obligor; and |
| (c) | indemnifies each Creditor Party immediately on demand against any cost, loss or liability suffered or incurred by that Creditor Party (i) if any Guaranteed Secured Liability is or becomes unenforceable, invalid or illegal or (ii) by operation of law as a consequence of the transactions contemplated by the Finance Documents. The amount of the cost, loss or liability shall be equal to the amount which that Creditor Party would otherwise have been entitled to recover. |
| 16.2 | Continuing guarantee |
This guarantee:
| (a) | is a continuing guarantee; |
| (b) | constitutes a guarantee of punctual performance and payment and not merely of collection; |
| (c) | is joint and several with any other guarantee given in respect of the Guaranteed Secured Liabilities and shall not in any way be prejudiced by any other guarantee or security now or subsequently held by any Creditor Party in respect of the Guaranteed Secured Liabilities; |
| (d) | shall remain in full force and effect until the later of the termination of the Total Commitments and the payment and performance in full of the Guaranteed Secured Liabilities and all other |
| amounts payable hereunder regardless of any intermediate payment or discharge in whole or in part; and |
| (e) | shall be binding upon each Guarantor, its successors and permitted assigns. |
| 16.3 | Performance of Guaranteed Secured Liabilities; obligations pari passu |
| (a) | Each Guarantor agrees that the Guaranteed Secured Liabilities will be performed and paid strictly in accordance with the terms of the relevant Finance Document regardless of any law or regulation or order of any court: |
| (i) | affecting (A) any term of such Finance Document or the rights of any of the Creditor Parties with respect thereto or (B) the Borrower’s ability or obligation to make or render, or right of any Creditor Party to receive, any payments or performance due thereunder; or |
| (ii) | which might otherwise constitute a defense to, or a legal or equitable discharge of, the Borrower. |
| (b) | The obligations of each Guarantor under this guarantee shall rank pari passu with all other unsecured obligations of such Guarantor. |
| 16.4 | Reinstatement |
If any payment of any of the Guaranteed Secured Liabilities is rescinded, discharged, avoided or reduced or must otherwise be returned by a Creditor Party or any other person upon the insolvency, bankruptcy or reorganization of the Borrower or any other Security Party or otherwise:
| (a) | this guarantee shall continue to be effective or be reinstated, and the liability of each Guarantor hereunder shall continue or be reinstated, as the case may be, as if the payment, discharge, avoidance or reduction had not occurred; and |
| (b) | each Creditor Party shall be entitled to recover the value or amount of that payment from each Guarantor, as if the payment, discharge, avoidance or reduction had not occurred. |
| 16.5 | Liability absolute and unconditional |
The obligations of each Guarantor under this Clause 16 shall be irrevocable, absolute and unconditional and shall not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 16, and each Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
| (a) | any time, waiver or consent granted to, or composition with, any Security Party or other person; |
| (b) | the release of any other Security Party or any other person under the terms of any composition or arrangement with any creditor of any Security Party; |
| (c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Security Party or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the corporate or company structure or status of a Security Party or any other person (including without limitation any change in the holding of such Security Party’s or other person’s Equity Interests); |
| (e) | any amendment to or replacement of a Finance Document or any other document or security; |
| (f) | any unenforceability, illegality or invalidity of any obligation of any Security Party or any other person under any Finance Document or any other document or security; |
| (g) | any bankruptcy, insolvency or similar proceedings; or |
| (h) | any other circumstance whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any Security Party. |
| 16.6 | Waiver of promptness, etc. |
Each of the Guarantors hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of non-performance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Secured Liabilities and this guarantee and any requirement that a Creditor Party protect, secure, perfect or insure any Security Interest or any property subject thereto or exhaust any right or take any action against any Security Party or any other person or entity or any Collateral.
| 16.7 | Waiver of revocation, etc. |
Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this guarantee.
| 16.8 | Waiver of certain defenses |
Each Guarantor hereby unconditionally and irrevocably waives:
| (a) | any defense arising by reason of any claim or defense based upon an election of remedies by a Creditor Party that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against the Borrower, any of the other Security Parties, any other guarantor or any other person or entity or any Collateral; and |
| (b) | any defense based on any right of set-off or counterclaim against or in respect of the obligations of such Guarantor hereunder. |
| 16.9 | Waiver of disclosure, etc. |
Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any Creditor Party to disclose to the Guarantors any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Borrower, any other Security Party or any of their respective subsidiaries now or hereafter known by any Creditor Party.
| 16.10 | Immediate recourse |
Each Guarantor waives any right it may have of first requiring any Creditor Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from the that Guarantor under this Clause 16.
| 16.11 | Acknowledgment of benefits |
Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Finance Documents and that the waivers set forth in this Clause 16 are knowingly made in contemplation of such benefits.
| 16.12 | Independent obligations |
The obligations of each Guarantor under or in respect of this guarantee are independent of the Guaranteed Secured Liabilities or any other obligations of the Borrower or any other Security Party under or in respect of the Finance Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce this guarantee irrespective of whether any action is brought against the Borrower or any other Security Party or whether the Borrower or any other Security Party is joined in any such action or actions.
| 16.13 | Deferral of Guarantors’ rights |
Until the Guaranteed Secured Liabilities have been irrevocably paid and performed in full and unless the Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents:
| (a) | to be indemnified by another Security Party; |
| (b) | to claim any contribution from any other guarantor of any Security Party’s obligations under the Finance Documents; and/or |
| (c) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Creditor Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Creditor Party. |
| 16.14 | Limitation of liability |
Each of the Guarantors and the Creditor Parties hereby confirms that it is its intention that the Guaranteed Secured Liabilities not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar law. To effectuate the foregoing intention, each of the Guarantors and the Creditor Parties hereby irrevocably agrees that the Guaranteed Secured Liabilities guaranteed by each Guarantor shall be limited to such amount as will, after giving effect to such maximum amount and all other (contingent or otherwise) liabilities of such Guarantor that are relevant under such laws and after giving effect to any rights to contribution pursuant to any agreement providing for an equitable contribution among such Guarantor and the other Guarantors, result in the Guaranteed Secured Liabilities of such Guarantor in respect of such maximum amount not constituting a fraudulent transfer or conveyance.
| 16.15 | Reliance of Creditor Parties |
Each of the Creditor Parties has entered into this Agreement in reliance upon, among other things, this guarantee.
| 16.16 | Release of an Owner Guarantor and of Owner Guarantors’ right of contribution |
Upon the sale of its Vessel or if its Vessel is a Total Loss, an Owner Guarantor may request to be released as an Owner Guarantor hereunder and in respect of its obligations under the other Finance Documents to which it is a party. Provided that no Event of Default has occurred and is continuing, or would result therefrom, and that no payment is then due from that Owner Guarantor under any of the Finance Documents to which it is a party, upon the written approval of the Agent (acting with the consent of the Majority Lenders, such consent not to be unreasonably withheld), such Owner Guarantor shall be deemed a retiring guarantor (in such capacity, a “Retiring Guarantor”) and shall cease to be an Owner Guarantor hereunder and released from its obligations hereunder and under the other Finance Documents, and on the date such Retiring Guarantor ceases to be an Owner Guarantor:
| 16.17 | Keepwell |
Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Security Party to honor all of its obligations under this guarantee in respect of Swap Obligations (provided that each Qualified ECP Guarantor shall be liable under this Clause 16.17 only for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Clause 16.17, or otherwise under this guarantee, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Clause 16.17 shall remain in full force and effect until such Qualified ECP Guarantor is released pursuant to Clause 16.16. Each Qualified ECP Guarantor intends that this Clause 16.17 constitute, and this Clause 16.17 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Guarantor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
| 17 | Payments and Calculations |
| 17.1 | Currency and method of payments |
All payments to be made by the Lenders or by the Security Parties (upon receipt of an invoice not less than 5 Business Days before the due date) under a Finance Document (other than under a Master Agreement) 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 4:00 p.m. (Paris time) on the due date; |
| (c) | in the case of an amount payable by a Lender to the Agent or by the Borrower or a Guarantor to the Agent or any Lender, to the account of the Agent, with the following account details: |
BANK NAME: JPMORGAN CHASE BANK, N.A.
ABA NO.: 021-000021
ACCOUNT NO.: 786419036
SWIFT CODE: CHASUS33XXX
BENEFICIARY: CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK
SWIFT CODE: BSUIFRPPXXX
FOR FURTHER CREDIT TO
ACCOUNT NAME: INSTANCE MIDDLE OFFICE
ACCOUNT NUMBER: 00 117 313 255
IBAN: FR7631489000100011731325547
REFERENCE: ATTN: DORIAN LPG LOAN FACILITY
or to such other account with such other bank as the Agent may from time to time notify to the Borrower, the other Security Parties 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 Borrower and the other Creditor Parties. |
| 17.2 | Payment on non-Business Day |
If any payment by a Security Party under a Finance Document (other than under a Master Agreement) would otherwise fall due on a day which is not a Business Day:
| (a) | the due date shall be extended to the next succeeding Business Day; or |
| (b) | if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day; |
and interest shall be payable during any extension under paragraph (a) at the rate payable on the original due date.
| 17.3 | Basis for calculation of periodic payments |
All interest and commitment fee and any other payments under any Finance Document (other than under a Master Agreement) 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.
| 17.4 | Distribution of payments to Creditor Parties |
Subject to Clauses 17.5, 17.6 and 17.7:
| (a) | any amount received by the Agent under a Finance Document for distribution or remittance to a Lender or the Security Trustee shall be made available by the Agent to that Lender 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 or the Security Trustee may have notified to the Agent not less than five (5) Business Days previously; and |
| (b) | amounts to be applied in satisfying amounts of a particular category which are due to the Lenders generally shall be distributed by the Agent to each Lender pro rata to the amount in that category which is due to it. |
| 17.5 | 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, deduct and withhold from that amount any sum which is then due and payable to the Agent from that Lender under any Finance Document or any sum which the Agent is then entitled under any Finance Document to require that Lender to pay on demand.
| 17.6 | 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 the Borrower or any Lender any sum which the Agent is expecting to receive for remittance or distribution to the Borrower or that Lender until the Agent has satisfied itself that it has received that sum.
| 17.7 | Refund to Agent of monies not received |
If and to the extent that the Agent makes available a sum to the Borrower or a Lender, without first having received that sum, the Borrower or (as the case may be) the Lender 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. |
| 17.8 | Agent may assume receipt |
Clause 17.7 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.
| 17.9 | Creditor Party accounts |
Each Creditor Party shall maintain accounts showing the amounts owing to it by the Borrower and each other Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any other Security Party.
| 17.10 | 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 Borrower and each other Security Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any other Security Party.
| 17.11 | Accounts prima facie evidence |
If any accounts maintained under Clauses 17.9 and 17.10 show an amount to be owing by the Borrower or any other Security Party to a Creditor Party, those accounts shall be prima facie evidence that that amount is owing to that Creditor Party.
| 18 | Application of Receipts |
| 18.1 | 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: |
| (b) | SECOND: any surplus shall be paid to the Borrower or to any other person appearing to be entitled to it. |
Notwithstanding the foregoing, no amount received from any Guarantor in respect of its Guaranteed Secured Liabilities shall be applied to any Excluded Swap Secured Liabilities.
| 18.2 | Variation of order of application |
The Agent may, with the authorization of the Lenders and the Swap Banks, by notice to the Borrower, the other Security Parties and the other Creditor Parties provide for a different manner of application from that set out in Clause 18.1 either as regards a specified sum or sums or as regards sums in a specified category or categories.
| 18.3 | Notice of variation of order of application |
The Agent may give notices under Clause 18.2 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.
| 18.4 | Appropriation rights overridden |
This Clause 18 and any notice which the Agent gives under Clause 18.2 shall override any right of appropriation possessed, and any appropriation made, by the Borrower or any other Security Party.
| 18.5 | Payments in excess of Contribution |
| (c) | Notwithstanding paragraphs (a) and (b) of this Clause 18.5, any Lender which shall have commenced or joined (as a plaintiff) in an action or proceeding in any court to recover sums due to it under any Finance Document and pursuant to a judgment obtained therein or a settlement or compromise of that action or proceeding shall have received any amount, such Lender shall not be required to share any proportion of that amount with a Lender which has the legal right to, but does not, join such action or proceeding or commence and diligently prosecute a separate action or proceeding to enforce its rights in the same or another court. |
| (d) | Each Lender exercising or contemplating exercising any rights giving rise to a receipt or receiving any payment of the type referred to in this Clause 18.5 or instituting legal proceedings to recover sums owing to it under this Agreement shall, as soon as reasonably practicable thereafter, give notice thereof to the Agent who shall give notice to the other Lenders. |
| 19 | Application of Earnings; Accounts |
| 19.1 | General |
From the Effective Date until the Total Commitments have terminated and all amounts payable hereunder have been paid in full, the Borrower and each of the Guarantors, as the case may be, undertakes with each Creditor Party to comply or cause compliance with the following provisions of this Clause 19 except as the Agent, with the consent of the Majority Lenders, may approve from time to time in writing, such approval not to be unreasonably withheld.
| 19.2 | Earnings Accounts |
| (a) | The Borrower shall be the holder of an account with the Account Bank which is designated as an Earnings Account for the purposes of the Finance Documents. |
| (b) | Each Owner Guarantor may, if required, open at any time, an account with the Account Bank which shall be designated as an Earnings Account for the purposes of the Finance Documents. |
| (d) | None of the Security Parties shall withdraw amounts standing to the credit of an Earnings Account except as permitted by paragraph (d) below. |
| 19.3 | Location of accounts |
The Borrower and each of the Guarantors, as the case may be, shall promptly:
| (a) | comply with any reasonable requirement of the Agent as to the location or re-location of the Earnings Accounts; and |
| (b) | execute any documents which the Agent specifies to create or maintain in favor of the Security Trustee a Security Interest over (and/or rights of set-off, consolidation or other rights in relation to) the Earnings Accounts. |
| 19.4 | Debits for expenses etc. |
The Agent shall be entitled (but not obliged) from time to time to debit the Earnings Accounts with prior notice in order to discharge any amount due and payable under Clause 21 or 22 to a Creditor Party or payment of which any Creditor Party has become entitled to demand under Clause 21 or 22.
| 19.5 | Borrower’s obligations unaffected |
The provisions of this Clause 19 do not affect:
| (a) | the liability of the Borrower to make payments of principal and interest on the due dates; or |
| (b) | any other liability or obligation of the Borrower or any other Security Party under any Finance Document. |
| 19.6 | Restrictions on accounts |
None of the Borrower or any of the Owner Guarantors shall maintain any accounts with any bank or financial institution other than with the Account Bank or the Agent provided that any such account held by the Borrower or any of the Owner Guarantors is subject to an Account Pledge.
| 20 | Events of Default |
| 20.1 | Events of Default |
An Event of Default occurs if:
| (b) | any breach occurs of any of Clauses 9.2, 11.1(b), 11.1(s), 12, 13 or 15.3; or |
| (f) | an event of default, or an event or circumstance which, with the giving of any notice, the lapse of time or both would constitute an event of default, has occurred on the part of a Borrower or Guarantor under any contract or agreement (other than the Finance Documents) to which such Security Party is a party and the value of which exceeds (i) in the case of the Parent Guarantor, $10,000,000, and (ii) in the case of the Borrower or an Owner Guarantor, $1,000,000, and such event of default has not been cured within any applicable grace period; |
| (g) | any Financial Indebtedness of the Parent Guarantor in excess of $10,000,000, or of an Owner Guarantor or the Borrower in excess of $1,000,000 is not paid when due (or if there is a grace period, within such grace period) or, only in the case of sums payable on demand, when first demanded, except for any such Financial Indebtedness which is being contested by such Security Party in good faith and through appropriate proceedings and in a manner that does not involve any risk of sale, forfeiture, loss, confiscation or seizure of any Vessel; or |
| (i) | such proceeding shall remain undismissed or unstayed for a period of 60 days; or |
| (ii) | any of the actions sought in such involuntary proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or |
| (j) | all or a material part of the undertakings, assets, rights or revenues of, or shares or other ownership interest in, any Security Party are seized, nationalized, expropriated or compulsorily acquired by or under authority of any government; or |
| (k) | a creditor attaches or takes possession of, or a distress, execution, sequestration or process (each an “action”) is levied or enforced upon or sued out against, a material part of the undertakings, assets, rights or revenues (the “assets”) of any Security Party in relation to a claim by such creditor which, in the reasonable opinion of the Majority Lenders, is likely to materially and adversely affect the ability of such Security Party to perform all or any of its obligations under or otherwise to comply with the terms of any Finance Document to which it is a party and such Security Party does not procure that such action is lifted, released or expunged within twenty (20) Business Days of such action being (i) instituted and (ii) notified to such Security Party; or |
| (l) | any judgment or order for the payment of money individually or in the aggregate in excess of $1,000,000, in respect of the Borrower or an Owner Guarantor, or $10,000,000 in respect of the Parent Guarantor, (exclusive of any amounts fully covered by insurance (less any applicable deductible) and as to which the insurer has acknowledged its responsibility to cover such judgment or order) shall be rendered against such Security Party and such judgment shall not have been vacated or discharged or stayed or bonded pending appeal within 30 days after the entry thereof or enforcement proceedings shall have been commenced by any creditor upon such judgment or order; or |
| (m) | any Security Party ceases or suspends or threatens to cease or suspend the carrying on of its business, or a part of its business which, in the opinion of the Majority Lenders, is material in the context of this Agreement, except in the case of a sale or a proposed sale of the Vessel by the Owner Guarantor owning that Vessel or the Borrower; or |
| (o) | it becomes unlawful or impossible: |
| (i) | for any Security Party to discharge any liability under a Finance Document or to comply with any other obligation which the Majority Lenders reasonably consider material under a Finance Document; |
| (ii) | for the Agent or the Security Trustee to exercise or enforce any right under, or to enforce any Security Interest created by, a Finance Document; or |
| (p) | any consent necessary to enable an Owner Guarantor to own, operate or charter the Vessel owned by it or to enable the Borrower or any other 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 and such expiration or revocation remains unremedied for seven (7) Business Days; or |
| (q) | a Finance Document or any material provision thereof 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 |
| (r) | the security constituted by a Finance Document is in any way imperiled or in jeopardy; or |
| (s) | an Event of Default (as defined in section 14 of a Master Agreement) has occurred and is continuing; |
| (t) | there occurs or develops a change in the financial position, state of affairs of the Borrower or a Guarantor which, in the reasonable opinion of the Majority Lenders, has a material adverse effect on such Security Party’s ability to discharge its liabilities under the Finance Documents as they fall due; |
| (u) | any litigation, alternative dispute resolution, arbitration or administrative proceeding is taking place, or, to the best of the Parent Guarantor’s knowledge, likely to be commenced or taken against the Borrower or any Guarantor (including, without limitation, investigative proceedings) or any of its assets, rights or revenues which, if adversely determined, is reasonably likely to result in a material adverse effect on the business, assets or financial condition of the Borrower or a Guarantor; or |
| (v) | there occurs a breach by the Borrower or any Guarantor of any applicable laws, rules or regulations that would result in a material adverse effect on the business, assets or financial condition of the Borrower or a Guarantor. |
| 20.2 | 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 Borrower a notice stating that the Commitments and all other obligations of each Lender to the Borrower under this Agreement are cancelled; and/or |
| (ii) | serve on the Borrower a notice stating that 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, provided that in the case of an Event of Default under either of Clauses 20.1(h) or (i), the Loan and all accrued interest and other amounts accrued or owing under this Agreement and the other Finance Documents shall be deemed immediately due and shall automatically become payable without notice or demand therefor; and/or |
| (b) | the Security Trustee may, and if so instructed by the Agent, acting with the authorization of the Majority Lenders, the Security Trustee shall, take any action which, as a result of the Event of Default or any notice served under paragraph (a)(i) or (ii), the Security Trustee, the Agent and/or the Lenders are entitled to take under any Finance Document or any applicable law to enforce the Security Interests created by this Agreement and any other Finance Document in any manner available to it and in such sequence as the Security Trustee may, in its absolute discretion, determine. |
| 20.3 | Termination of Commitments |
On the service of a notice under Clause 20.2(a)(i), the Commitments and all other obligations of each Lender to the Borrower under this Agreement shall be cancelled; provided, that in the case of an Event of Default under either of Clauses 20.1(h) or (i), the Total Commitments shall be automatically cancelled.
| 20.4 | Acceleration of Loan |
On the service of a notice under Clause 20.2(a)(iii) or upon an Event of Default under either of Clauses 20.1(h) or (i), all or, as the case may be, the part of the Loan specified in the notice (if any), together with accrued interest and all other amounts accrued or owing from the Borrower or any other 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.
| 20.5 | Multiple notices; action without notice |
The Agent may serve notices under Clauses 20.2(a)(i) and (ii) simultaneously or on different dates and it and/or the Security Trustee may take any action referred to in Clause 20.2 if no such notice is served or simultaneously with or at any time after the service of both or either of such notices.
| 20.6 | Notification of Creditor Parties and Security Parties |
The Agent shall send to each Lender, the Security Trustee and each Security Party a copy of the text of any notice which the Agent serves on the Borrower under Clause 20.2. Such notice shall become effective when it is served on the Borrower, 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 the Borrower or any Security Party with any form of claim or defense.
| 20.7 | Creditor Party rights unimpaired |
Nothing in this Clause shall be taken to impair or restrict the exercise of any right given to individual Lenders or Swap Counterparties under a Finance Document or the general law; and, in particular, this Clause is without prejudice to Clause 3.1.
| 20.8 | Exclusion of Creditor Party liability |
No Creditor Party, and no receiver or manager appointed by the Security Trustee, shall have any liability to any 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 realized from any asset comprised in such a Security Interest or for any reduction (however caused) in the value of such an asset, |
provided that nothing in this Clause 20.8 shall exempt a Creditor Party or a receiver or manager from liability for losses shown to have been directly and mainly caused by the gross negligence or the willful 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.
| 21 | Fees and Expenses |
| 21.1 | Fees |
The Borrower shall pay:
| (b) | such other fees in the amounts and at the times specified in each Fee Letter, to the person specified therein. |
| 21.2 | Costs of negotiation, preparation etc. |
The Borrower shall pay to the Agent within five (5) Business Days after the Agent’s demand therefor the amount of all reasonable and documented expenses incurred by the Agent 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, including, without limitation, the reasonable fees and disbursements of Seward & Kissel LLP as legal counsel to the Agent and any local counsel retained by them with the prior written approval of the Borrower (and whose fee estimate has been provided to the Borrower before such local counsel commences work).
| 21.3 | Costs of variations, amendments, enforcement etc. |
The Borrower shall pay to the Agent, within five (5) Business Days after the Agent’s demand, for the account of the Agent or the Security Trustee, as applicable, the amount of all documented and (in the case of (a), (b) and (c) below) reasonable expenses incurred by the Agent or the Security Trustee in connection with:
| (a) | any amendment or supplement to a Finance Document, or any proposal for such an amendment to be made, in each case requested by the Security Parties; |
| (b) | any amendment to the Finance Documents in connection with the implementation of a Benchmark Replacement or Conforming Changes pursuant to Clause 5.6 (Benchmark Replacement Setting), provided such expenses shall be limited to the reasonable costs of outside counsel for the Agent; |
| (c) | any consent or waiver by a Creditor Party under or in connection with a Finance Document, or any request for such a consent or waiver by the Security Parties; |
| (d) | the valuation of any Collateral provided or offered under Clause 15 or any other matter relating to such Collateral; or |
| 21.4 | Documentary taxes |
The Borrower shall promptly pay any documentary 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 Borrower to pay such a tax.
| 21.5 | Certification of amounts |
A notice which is signed by an officer of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 21 and which indicates in reasonable detail 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.
| 22 | Indemnities |
| 22.1 | Indemnities regarding borrowing and repayment of Loan |
The Borrower shall fully indemnify the Agent and each Lender within five (5) Business Days of the Agent’s demand and the Security Trustee within five (5) Business Days of 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) | an Advance not being borrowed on the date specified in the relevant 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 Borrower or any other Security Party 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 Borrower on the amount concerned under Clause 7); |
| (d) | any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions relating to the Vessels or the Security Parties; |
| (e) | in connection with any Environmental Claim; or |
| (f) | the occurrence of an Event of Default or a Potential Event of Default and/or the acceleration of repayment of the Loan under Clause 20. |
It is understood that the indemnities provided in this Clause 22.1 shall not apply to any claim cost or expense which is a tax levied by a taxing authority on the indemnified party (which taxes are subject to indemnity solely as provided in Clause 23 below) but shall apply to any other costs associated with any tax which is not a Non-indemnified Tax.
| 22.2 | Breakage costs |
Without limiting its generality, Clause 22.1 covers any claim, expense, liability or loss, including a loss of a prospective profit, incurred by a Lender:
| (a) | in liquidating or employing deposits from third parties acquired or arranged to fund or maintain all or any part of its Contribution and/or any overdue amount (or an aggregate amount which includes its Contribution or any overdue amount); and |
| (b) | in terminating, or otherwise in connection with, any interest and/or currency swap or any other transaction entered into (whether with another legal entity or with another office or department of the Lender concerned) to hedge any exposure arising under this Agreement or that part which the Lender concerned determines is fairly attributable to this Agreement of the amount of the liabilities, expenses or losses (including losses of prospective profits) incurred by it in terminating, or otherwise in connection with, a number of transactions of which this Agreement is one. |
| 22.3 | Miscellaneous indemnities |
The Borrower shall fully indemnify each Creditor Party severally within five (5) Business Days 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 other Pertinent Matter, |
other than claims, expenses, liabilities and losses which are shown to have been directly and mainly caused by the dishonesty or willful misconduct or gross negligence of the officers or employees of the Creditor Party concerned.
Without prejudice to its generality, this Clause 22.3 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, any Environmental Law or any Sanctions.
| 22.4 | Currency indemnity |
If any sum due from the Borrower or any other 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 the Borrower or any other 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 Borrower 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 22.4, the “available rate of exchange” means the rate at which the Creditor Party concerned is able at the opening of business (New York time) on the Business Day after it receives the sum concerned to purchase the Contractual Currency with the Payment Currency.
This Clause 22.4 creates a separate liability of the Borrower which is distinct from its other liabilities under the Finance Documents and which shall not be merged in any judgment or order relating to those other liabilities.
| 22.5 | Application to Master Agreements |
For the avoidance of doubt, Clause 22.4 does not apply in respect of sums due from the Borrower to a Swap Bank under or in connection with a Master Agreement as to which sums the provisions of section 8 (Contractual Currency) of that Master Agreement shall apply.
| 22.6 | Certification of amounts |
A notice which is signed by an officer of a Creditor Party, which states that a specified amount, or aggregate amount, is due to that Creditor Party under this Clause 22 and which indicates in reasonable detail 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.
| 22.7 | Sums deemed due to a Lender |
For the purposes of this Clause 22, a sum payable by the Borrower to the Agent or the Security Trustee for distribution to a Lender shall be treated as a sum due to that Lender.
| 23 | No Set-Off or Tax deduction; Tax Indemnity; FATCA |
| 23.1 | No deductions |
All amounts due from a Security Party 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 such Security Party is required by law to make. |
| 23.2 | Grossing-up for taxes |
If a Security Party is required by law to make a tax deduction from any payment:
| (a) | such Security Party shall notify the Agent as soon as it becomes aware of the requirement; |
| (b) | such Security Party shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and |
| (c) | except if the deduction is for collection or payment of a Non-indemnified Tax of a Creditor Party or taxes imposed due to a Lender’s noncompliance with Clause 23.7, 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. |
| 23.3 | Evidence of payment of taxes |
Within one (1) month after making any tax deduction, the relevant Security Party shall deliver to the Agent documentary evidence reasonably satisfactory to the Agent that the tax had been paid to the appropriate taxation authority, it being understood that a payment advice from the relevant Security Party’s bank clearly identifying the recipient, amount, and date of payment, and date of receipt of funds, shall be deemed satisfactory for purposes of this Clause 23.3.
| 23.4 | Tax credits |
A Creditor Party which receives for its own account a repayment or credit in respect of tax on account of which the Borrower has made an increased payment under Clause 23.2 shall pay to the Borrower a sum equal to the proportion of the repayment or credit which that Creditor Party allocates to the amount due from the Borrower in respect of which the Borrower made the increased payment, provided that:
| (a) | the Creditor Party shall not be obliged to allocate to this transaction any part of a tax repayment or credit which is referable to a class or number of transactions; |
| (b) | nothing in this Clause 23.4 shall oblige a Creditor Party to arrange its tax affairs in any particular manner, to claim any type of relief, credit, allowance or deduction instead of, or in priority to, another or to make any such claim within any particular time; |
| (c) | nothing in this Clause 23.4 shall oblige a Creditor Party to make a payment which would leave it in a worse position than it would have been in if the Borrower had not been required to make a tax deduction from a payment; and |
| (d) | any allocation or determination made by a Creditor Party under or in connection with this Clause 23.4 shall be conclusive and binding on the Borrower and the other Creditor Parties. |
| 23.5 | Indemnity for taxes |
The Borrower and each of the Guarantors hereby indemnifies and agrees to hold each Creditor Party harmless from and against all taxes other than Non-indemnified Taxes or taxes imposed due to a Lender’s noncompliance with Clause 23.7 levied on such Creditor Party (including, without limitation, taxes imposed on any amounts payable under this Clause 23.5) paid or payable by such person, whether or not such taxes or other taxes were correctly or legally asserted. Such indemnification shall be paid within 10 days from the date on which such Creditor Party makes written demand therefore specifying in reasonable detail the nature and amount of such taxes or other taxes.
| 23.6 | Exclusion from indemnity and gross-up for taxes |
The Borrower and the Guarantors shall not be required to indemnify any Creditor Party for a tax pursuant to Clause 23.5, or to pay any additional amounts to any Creditor Party pursuant to Clause 23.2, to the extent that the tax is collected by withholding on payments (a “Withholding”) and is levied by a Pertinent Jurisdiction of the payer and:
| (a) | the person claiming such indemnity or additional amounts was not an original party to this agreement and under applicable law (after taking into account relevant treaties and assuming that such person has provided all forms it may legally and truthfully provided) on the date such person became a party to this Agreement a Withholding would have been required on such payment, provided that this exclusion shall not apply to the extent such Withholding does not exceed the Withholding that would have been applicable if such payment had been made to the person from whom such person acquired its rights under the Agreement and this exclusion shall not apply to the extent that such Withholding exceeds the amount of Withholding that would have been required under the law in effect on the date such person became a party to this Agreement; or |
| (b) | the person claiming such indemnity or additional amounts is a Lender who has changed its Lending Office and under applicable law (after taking into account relevant treaties and assuming that such Lender has provided all forms it may legally and truthfully provide) on the date such Lender changed its Lending Office, Withholding would have been required on such payment, provided that this exclusion shall not apply to the extent such Withholding does not exceed the Withholding that would have been applicable to such payment if such Lender had not changed its Lending Office and this exclusion shall not apply to the extent that the Withholding exceeds the amount of Withholding that would have been required under the law in effect immediately after such Lender changed its Lending Office. |
| 23.7 | FATCA information |
| (a) | Subject to paragraph (c) below, each FATCA Relevant Party confirms to each other FATCA Relevant Party that it is a FATCA Exempt Party on the date hereof (or in the case of a Transferee Lender, on the date of its Transfer Certificate, except as otherwise described therein) and thereafter within ten (10) Business Days of a reasonable request by another FATCA Relevant Party shall: |
| (i) | confirm to that other party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and |
| relating to its status under FATCA as the requesting party reasonably requests for the purpose of determining whether any payment to such party may be subject to any FATCA Deduction. |
| (d) | If a FATCA Relevant Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with the provisions of this Agreement or the provided information is insufficient under FATCA, then such party shall be treated as if it were a FATCA Non-Exempt Party until such time as the party in question provides sufficient confirmation, forms, documentation or other information to establish the relevant facts. |
| (e) | Upon the reasonable written request of the Borrower, each Lender or transferee that is organized under the laws of a jurisdiction outside the United States (a “Non-U.S. Lender”) shall, if not delivered pursuant to paragraph (a) above, deliver to the Agent and the Borrower a properly completed and duly executed copy of (as applicable) IRS Form W-8BEN-E, W-8ECI or W-8IMY or, upon written request of the Borrower or the Agent, any subsequent versions thereof or successors thereto, in each case claiming such reduced rate (which may be zero) of U.S. Federal withholding tax under Sections 1441 and 1442 of the Code with respect to payments of interest hereunder as such Non-U.S. Lender may properly claim. In addition, in the case of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code, such Non-U.S. Lender shall, when so requested in writing by the Borrower provide to the Agent and the Borrower in addition to the IRS Form W-8BEN-E required above a certificate representing that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code), and such Non-U.S. Lender agrees that it shall promptly notify the Agent in the event any representation in such certificate is no longer accurate. In the event that Withholding taxes may be imposed under the laws of any Pertinent Jurisdiction (other than the United States or any political subdivision or taxing jurisdiction thereof or therein) in respect of payments on the Loan or other amounts due under this Agreement and if certain documentation provided by a Lender could reduce or eliminate such Withholding taxes under the laws of such Pertinent Jurisdiction or any treaty to which the Pertinent Jurisdiction is a party, then, upon written request by a Security Party, a Lender that is entitled to an exemption from, or reduction in the amount of, such Withholding tax shall deliver to such Security Party (with a copy to the Agent), at the time or times prescribed by applicable law or promptly after receipt of the Security |
| Party’s request, whichever is later, such properly completed and executed documentation requested by the Security Party, if any, as will permit such payments to be made without withholding or at a reduced rate of withholding; provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s reasonable judgment such completion, execution or delivery would not materially prejudice the legal or commercial position of such Lender. Each Lender shall deliver such forms as required in this paragraph (e) within twenty (20) days after receipt of a written request therefor from the Agent or the Security Party. Notwithstanding any other provision of this paragraph (e), a Lender shall not be required to deliver any form pursuant to this paragraph (e) that such Lender is not legally entitled to deliver. |
| 23.8 | FATCA withholding |
| (a) | A FATCA Relevant Party making a payment to any FATCA Non-Exempt Party shall make such FATCA Deduction as it determines is required by law and shall render payment to the IRS within the time allowed and in the amount required by FATCA. |
| (b) | If a FATCA Deduction is required to be made by any FATCA Relevant Party to a FATCA Non-Exempt Party, the amount of the payment due from such FATCA Relevant Party under this Agreement shall be reduced by the amount of the FATCA Deduction reasonably determined to be required by such FATCA Relevant Party. |
| (c) | Each FATCA Relevant Party shall promptly upon becoming aware that a FATCA Deduction is required with respect to any payment owed to it (or that there is any change in the rate or basis of a FATCA Deduction) notify each other FATCA Relevant Party accordingly. |
| (d) | Within thirty days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the party making such FATCA Deduction shall deliver to the Agent for delivery to the party on account of whom the FATCA Deduction was made evidence reasonably satisfactory to that party that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the IRS. |
| (e) | A FATCA Relevant Party who becomes aware that it must make a FATCA Deduction in respect of a payment to another FATCA Relevant Party (or that there is any change in the rate or basis of such FATCA Deduction) shall notify that party and the Agent. |
| (f) | The Agent shall promptly upon becoming aware that it must make a FATCA Deduction in respect of a payment to a Lender which relates to a payment by the Borrower (or that there is any change in the rate or the basis of such a FATCA Deduction) notify the Borrower and the relevant Lender. |
| (g) | If a FATCA Deduction is made as a result of any Creditor Party failing to be a FATCA Exempt Party, such party shall indemnify each other Creditor Party against any loss, cost or expense to it resulting from such FATCA Deduction. |
| 23.9 | FATCA mitigation |
| (a) | Notwithstanding any other provision of this Agreement, if a FATCA Deduction is or will be required to be made by any party under Clause 23.8 in respect of a payment to any FATCA Non-Exempt Lender, the FATCA Non-Exempt Lender may either: |
| (i) | transfer its entire interest in the Loan to a U.S. branch or Affiliate, or |
| (ii) | nominate one or more transferee lenders who upon becoming a Lender would be a FATCA Exempt Party, by notice in writing to the Agent and the Borrower specifying the terms of the proposed transfer, and cause such transferee lender(s) to purchase all of the FATCA Non-Exempt Lender’s interest in the Loan. |
| 23.10 | Application to a Master Agreement |
For the avoidance of doubt, Clause 23 does not apply in respect of sums due from the Borrower to a Swap Bank under or in connection with a Master Agreement as to which sums the provisions of section 2(d) (Deduction or Withholding for Tax) of that Master Agreement shall apply.
| 24 | Illegality, etc. |
| 24.1 | Illegality |
If it becomes unlawful or contrary to any Sanctions in any applicable jurisdiction for a Lender (for purposes of this Clause 24.1, the “Notifying Lender”) to perform any of its obligations as contemplated by this Agreement, or to fund or maintain its participation in any Advance, or it becomes unlawful or contrary to any Sanctions for any Affiliate of a Lender for that Lender to do so:
| (a) | the Notifying Lender shall promptly notify the Agent upon becoming aware of that event; |
| 24.2 | Mitigation |
If circumstances arise which would result in a notification under Clause 24.1 then, without in any way limiting the obligations of the Borrower under Clause 24.1, the Notifying Lender shall use reasonable commercial efforts 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 a material 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. |
| 25 | Increased Costs |
| 25.1 | Increased costs |
This Clause 25 applies if a Lender (for purposes of this Clause 25.1, the “Notifying Lender”) notifies the Agent that the Notifying Lender considers that as a result of:
| (a) | the introduction or alteration after the Effective Date of a law or an alteration after the Effective Date 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 Non-indemnified Tax); 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 Effective Date; or |
| (c) | the introduction, implementation, application, administration or compliance with Basel III, Basel IV, CRD IV or CRR or any law or regulation which implements or applies Basel III, Basel IV, CRD IV or CRR (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), |
the Notifying Lender (or a parent company of it) has incurred or will incur an “increased cost”.
Notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act, Basel III and BASEL IV, and all requests, rules, guidelines and directives promulgated thereunder, are deemed to have been introduced or adopted after the date hereof, regardless of the date enacted or adopted.
| 25.2 | Meaning of “increased costs” |
In this Clause 25, “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 having taken an assignment of rights under this Agreement, 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; |
| (e) | 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 covered by the indemnity for tax in Clause 23 or a FATCA Deduction (whether such implementation, application or compliance is by a government, regulator, Creditor Party or any of its Affiliates). |
For the purposes of this Clause 25.2 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.
| 25.3 | Notification to Borrower of claim for increased costs |
The Agent shall promptly notify the Borrower and the other Security Parties of the notice (and shall provide a copy of such notice) which the Agent received from the Notifying Lender under Clause 25.1.
| 25.4 | Payment of increased costs |
The Borrower shall pay to the Agent, within five (5) Business Days of the Agent’s demand, for the account of the Notifying Lender the amounts which the Agent from time to time notifies the Borrower that the Notifying Lender has specified to be necessary to compensate the Notifying Lender for the increased cost.
| 25.5 | Notice of prepayment |
If the Borrower is not willing to continue to compensate the Notifying Lender for the increased cost under Clause 25.4, the Borrower may give the Agent not less than 14 days’ notice of its intention to prepay the Notifying Lender’s Contribution at the end of an Interest Period.
| 25.6 | Prepayment; termination of Commitment |
A notice under Clause 25.5 shall be irrevocable; the Agent shall promptly notify the Notifying Lender of the Borrower’s 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 Borrower shall prepay (without premium or penalty but subject to any amounts payable under Clause 8.9) the Notifying Lender’s Contribution. |
| 25.7 | Application of prepayment |
The provisions of Clause 8 shall apply in relation to the prepayment.
| 26 | Set-Off |
| 26.1 | Application of credit balances |
Upon the occurrence and during the continuance of an Event of Default, 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 the Borrower or any of the Guarantors at any office in any country of that Creditor Party in or towards satisfaction of any sum then due from the Borrower or any of the Guarantors 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 the Borrower or any Guarantor; |
| (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. |
| 26.2 | Existing rights unaffected |
No Creditor Party shall be obliged to exercise any of its rights under Clause 26.1; 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).
| 26.3 | Sums deemed due to a Lender |
For the purposes of this Clause 26, a sum payable by the Borrower or any of the Guarantors 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.
| 26.4 | No Security Interest |
This Clause 26 gives the Creditor Parties a contractual right of set-off only, and does not create any Security Interest over any credit balance of the Borrower or any of the Guarantors.
| 27 | Transfers and Changes in Lending Offices |
| 27.1 | Transfer by Borrower or Guarantors |
Neither the Borrower nor any of the Guarantors 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.
| 27.2 | Transfer by a Lender |
Subject to Clause 27.4, a Lender (the “Transferor Lender”) may at any time, without additional costs to, but with the prior written consent of the Borrower and the Agent (such consent not to be unreasonably withheld or delayed and to be deemed granted within five (5) Business Days from the day it has been sought unless it has been expressly refused within that period), 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, any insurer, reinsurer, trust, fund or other entity (a “Transferee Lender”) which is (i) regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other
financial assets and (ii) not an Affiliate of the Borrower by delivering to the Agent a completed certificate in the form set out in Schedule 5 with any modifications approved or required by the Agent (a “Transfer Certificate”) executed by the Transferor Lender and the Transferee Lender; provided that (1) no consent of the Borrower or the Agent shall be required if the transfer is to another Lender, an Affiliate of a Lender or an Approved Fund, (2) no consent of the Borrower is required if the transfer is after an Event of Default has occurred and is continuing, and (3) no consent of the Borrower is required for an assignment or transfer of any rights of such Lender to any refinancing entity including without limitation any insurer, reinsurer, securitization special purpose entity, trust or fund, for the purpose of that Lender refinancing or hedging its loan exposure, provided no such assignment or transfer shall either (a) release the Lender from any of its obligations under the Finance Documents or (b) require any payments to be made by a Security Party other than, or in excess of, or grant to any person any more extensive rights than, those required to be made or those granted to the relevant Lender under the Finance Documents, and provided further that, notwithstanding the foregoing, unless an Event of Default has occurred and is continuing, the consent of the Borrower shall be required for any assignment or transfer under this sub-clause (3) that is proposed to be made to an entity that is, or is controlled by, an Excluded Fund.
Notwithstanding the foregoing, any rights and obligations of the Transferor Lender in its capacity as Agent or Security Trustee shall be determined in accordance with Clause 31.
Notwithstanding the foregoing, any transfer by the Lender of its Contribution or its obligations in respect of all or part of its Commitment shall be made pro rata within the Term Loan Facility and Revolving Facility.
| 27.3 | 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 Borrower, the other Security Parties, the Security Trustee and each of the other Lenders and each Swap Bank; |
| (b) | on behalf of the Transferee Lender, send to the Borrower and each other Security Party letters or Emails notifying them of the Transfer Certificate and attaching a copy of it; |
| (c) | send to the Transferee Lender copies of the letters or Emails sent under paragraph (b), |
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 to the transfer to that Transferee Lender.
| 27.4 | 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 27.3 on or before that date.
| 27.5 | No transfer without Transfer Certificate |
Except as provided in Clause 27.16, no assignment or transfer of any right or obligation of a Lender under any Finance Document is binding on, or effective in relation to, the Borrower, any other Security Party, the Agent or the Security Trustee unless it is effected, evidenced or perfected by a Transfer Certificate.
| 27.6 | Lender re-organization; waiver of Transfer Certificate |
If a Lender enters into any merger, de-merger or other reorganization as a result of which all its rights or obligations vest in a successor, the Agent may, if it sees fit, by notice to the successor and the Borrower
and the Security Trustee waive the need for the execution and delivery of a Transfer Certificate and, upon service of the Agent’s notice, the successor shall become a Lender with the same Commitment and Contribution as were held by the predecessor Lender.
| 27.7 | Effect of Transfer Certificate |
The effect of a Transfer Certificate is 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 the Borrower or any other 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 the Borrower or any other Security Party against the Transferor Lender had not existed; |
| (f) | the Transferee Lender becomes entitled to all the rights under the Finance Documents which are applicable to the Lenders generally, including but not limited to those relating to the Majority Lenders and those under Clause 5.5 and Clause 21, and to the extent that the Transferee Lender becomes entitled to such rights, the Transferor Lender ceases to be entitled to them; and |
| (g) | in respect of any breach of a warranty, undertaking, condition or other provision of a Finance Document or any misrepresentation made in or in connection with a Finance Document, the Transferee Lender shall be entitled to recover damages by reference to the loss incurred by it as a result of the breach or misrepresentation, irrespective of whether the original Lender would have incurred a loss of that kind or amount. |
| 27.8 | Maintenance of register of Lenders |
During the Security Period the Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain a register in which it shall record the name, Commitment, Contribution and administrative details (including the lending office) from time to time of each Lender holding a Transfer Certificate and the effective date (in accordance with Clause 27.4) of the Transfer Certificate; and
the Agent shall make the register available for inspection (including by Email) by any Lender, the Security Trustee and the Borrower during normal banking hours, subject to receiving at least three (3) Business Days’ prior notice.
| 27.9 | 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.
| 27.10 | Authorization of Agent to sign Transfer Certificates |
The Security Trustee, each Lender and each Swap Bank (and, if the Borrower’s consent is deemed given pursuant to this Clause 27, the Borrower) irrevocably authorizes the Agent to sign Transfer Certificates on its behalf.
| 27.11 | Registration fee |
In respect of any Transfer Certificate, the Agent shall be entitled to recover a registration fee of $7,500 from the Transferor Lender or (at the Agent’s option) the Transferee Lender.
| 27.12 | Reserved |
| 27.13 | Confidential information |
| (a) | Each Creditor Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by paragraph (b) below, and to ensure that all Confidential Information is protected with the security measures and a degree of care that would apply to its own confidential information. |
| (b) | Any Creditor Party may disclose: |
| (ii) | to any person: |
| (F) | to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes; |
| (G) | which is a 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; |
| (H) | who is a party hereto, a subsidiary of the Parent Guarantor or any related entity of a Security Party; |
| (I) | as a result of the registration of any Finance Document as contemplated by any Finance Document or any legal opinion obtained in connection with any Finance Document; |
| (J) | to whom or for whose benefit that Creditor Party charges, assigns or otherwise creates a Security Interest (or may do so) pursuant to Clause 27.16 (Security over Lenders’ rights), provided such recipient is informed of the confidential nature of such Confidential Information and that some or all of such Confidential Information may be price-sensitive except that there shall be no requirement to so inform if, in the opinion of that Creditor Party, it is not practicable to do so in the circumstances; or |
| (K) | with the consent of the Borrower; |
in each case, such Confidential Information as that Creditor Party shall consider appropriate if:
| (1) | in relation to paragraphs (A), (B) and (C) of sub-paragraph (ii) above, the person to whom the Confidential Information is to be given has |
| entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information; |
| (2) | in relation to paragraph (D) of sub-paragraph (ii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information; |
| (3) | in relation to paragraphs (E) and (F) of sub-paragraph (ii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Creditor Party, it is not practicable so to do in the circumstances; |
| (iv) | to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Security Parties, provided such rating agency is informed of the confidential nature of such Confidential Information and that some or all of such Confidential Information may be price-sensitive. |
| 27.14 | Change of lending office |
A Lender may change its lending 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. |
| 27.15 | Notification |
On receiving such a notice, the Agent shall notify the Borrower 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 lending office of which the Agent last had notice.
| 27.16 | Security over Lenders’ rights |
In addition to the other rights provided to Lenders under this Clause 27, each Lender may without consulting with or obtaining consent from the Borrower or any other 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 the Borrower or any other 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. |
| 27.17 | Replacement of a Defaulting Lender |
| (ii) | in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrower and which does not exceed the amount described in paragraph (i) above. |
| (b) | Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 27.17 shall be subject to the following conditions: |
| (i) | the Borrower shall have no right to replace the Agent or Security Trustee; |
| (ii) | neither the Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender; |
| (iii) | the transfer must take place no later than 3 Business Days after the notice referred to in paragraph (a) above; |
| (iv) | in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and |
| 27.18 | Excluded Commitments |
If any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within 3 Business Days of that request being made (unless the Borrower and the Agent agree to a longer time period in relation to any request):
| (b) | 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. |
| 27.19 | Disenfranchisement of Defaulting Lenders |
| (a) | For so long as a Defaulting Lender has any undrawn Commitment, in ascertaining: |
| (i) | the Majority Lenders; or |
| (ii) | whether: |
| (A) | any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Loan; or |
| (B) | the agreement of any specified group of Lenders, |
has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance documents,
that Defaulting Lender’s Commitment under the Loan will be reduced by the amount of its undrawn Commitment under the Loan and, to the extent that that reduction results in that Defaulting Lender’s
Commitment being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of paragraphs (i) and (ii) above.
| (b) | For the purposes of this Clause 27.19 the Agent may assume that the following Lenders are Defaulting Lenders: |
| (i) | any Lender which has notified the Agent that it has become a Defaulting Lender; |
| (ii) | any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a) or (b) of the definition of “Defaulting Lender” has occurred, |
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
| 28 | Variations and Waivers |
| 28.1 | Variations, waivers etc. by Majority Lenders |
Subject to Clause 5.6 and Clauses 28.2 and 28.3, 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 Email, by the Borrower, by the Agent on behalf and with the approval 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.
| 28.2 | Variations, waivers etc. requiring agreement of all Lenders |
As regards the following, Clause 28.1 applies as if the words “by the Agent on behalf and with the approval of the Majority Lenders” were replaced by the words “by or on behalf and with the approval of every Lender and every Swap Bank”:
| (a) | a reduction in the Margin which is not otherwise contemplated in the definition of “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 or the Note; |
| (c) | an increase in any Lender’s Commitment (other than under the Accordion Facility); |
| (d) | a change to the definition of “Change of Control”; |
| (e) | a change to the definition of “Majority Lenders”; |
| (f) | a change to Clause 15 (Collateral Maintenance Ratio) |
| (g) | a change to Clause 28, Clause 31.10 or Clause 32; |
| (h) | any change to Clauses 10.23, 11.1(t), 20.1(n) or the definition of Sanctions, Sanctions Authority, Sanctions List or Restricted Party; |
| (i) | except in connection with the full repayment of an Advance in respect of a Vessel pursuant to Clause 8.7 (Mandatory reduction and prepayment upon Sale, Refinancing or Total Loss), any |
| release of, or material variation to, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document; |
| (j) | an Event of Default caused due to a breach of Clause 11.1(z); and |
| (k) | any other change or matter as regards which this Agreement or another Finance Document expressly provides that each Lender’s consent is required. |
| 28.3 | Variations, waivers etc. relating to the Specific Creditor Parties |
An amendment or waiver that relates to the rights or obligations of the Agent or the Security Trustee under Clause 31 may not be effected without the consent of the Agent or the Security Trustee.
| 28.4 | Exclusion of other or implied variations |
Except for a document which satisfies the requirements of Clauses 28.1, 28.2 or 28.3, 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 the Borrower or another 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.
| 28.5 | EU Blocking Regulation Carveout |
Each Security Party and the Agent agree and confirm that the representations in Clause 10.23 and the undertakings in Clause 11.1(t) shall only be given by the Security Parties, and the Lenders shall only have the benefit of such provisions, to the extent permissible pursuant to Council Regulation (EC) 2271/96 and/or any associated and applicable national law, instrument or regulation related thereto.
| 29 | Notices |
| 29.1 | General |
Unless otherwise specifically provided, any notice under or in connection with any Finance Document shall be given by letter, electronic mail (“Email”) and references in the Finance Documents to written notices, notices in writing and notices signed by particular persons shall be construed accordingly.
| 29.2 | Addresses for communications |
The addresses and Email (if applicable) and the department (or officer, if any, for whose attention the communication is to be made) of each party for any communication or document to be made or delivered under or in connection with the Finance Documents are:
| (a) | in the case of the Borrower, that specified in Schedule 1, Part A; |
| (b) | in the case of the Parent Guarantor, that specified in Schedule 1, 0; |
| (c) | in the case of the Owner Guarantors, that specified in Schedule 1, Part C; |
| (d) | in the case of each Lender, that specified in Schedule 1, Part D; |
| (e) | in the case of Swap Bank, that specified in Schedule 1, Part E; and |
| (f) | in the case of the Agent, the Security Trustee and each other Creditor Party, that specified in Schedule 1, Part F, |
or to such other address as a party may notify to the Agent (or the Agent may notify to the other parties, if a change is made by the Agent) by not less than five Business Days’ notice.
| 29.3 | Effective date of notices |
Subject to Clauses 29.4 and 29.5:
| (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 Email shall be deemed to be served, and shall take effect, at the time when it is actually received in readable form. |
| 29.4 | Service outside business hours |
However, if under Clause 29.3 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 5:00 p.m. local time, |
the notice shall (subject to Clause 29.5) be deemed to be served, and shall take effect, at 9:00 a.m. on the next day which is such a business day.
| 29.5 | Illegible notices |
Clauses 29.3 and 29.4 do not apply if the recipient of a notice notifies the sender within one (1) Business Day 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.
| 29.6 | 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. |
| 29.7 | Electronic communication between the Agent and a Lender |
Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by Email or other electronic means, if the Agent and the relevant Lender:
| (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 Email 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 Email addresses or any other such information supplied to them. |
Any electronic communication made between the Agent and a Lender will be effective only when actually received in readable form and, in the case of any electronic communication made by a Lender to the Agent, only if it is addressed in such a manner as the Agent shall specify for this purpose.
| 29.8 | English language |
Any notice under or in connection with a Finance Document shall be in English.
| 29.9 | Meaning of “notice” |
In this Clause 29, “notice” includes any demand, consent, authorization, approval, instruction, waiver or other communication.
| 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 | Binding Effect |
This Agreement shall become effective on the Effective Date and thereafter shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.
| 30.5 | Acknowledgment and Consent to Bail-In of Affected Financial Institutions |
Notwithstanding anything to the contrary in any Finance Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Finance Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agree:
| (a) | the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and |
| (b) | the effects of any Bail-In Action on any such liability, including, if applicable: |
| (i) | a reduction, in full or in part or cancellation of any such liability; |
| (ii) | a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Finance Documents; or |
| (iii) | the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority. |
| 30.6 | Acknowledgment Regarding Any Supported QFCs. |
To the extent that the Finance Documents provide support, through a guarantee or otherwise, for Master Agreements or any other agreement or instrument that is a QFC (such support, for purposes of this Clause, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, for purposes of this Clause 30.6, the “U.S. Special Resolution
Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Finance Documents and any Supported QFC may in fact be stated to be governed by the Laws of the State of New York and/or of the United States or any other state of the United States):
| (a) | in the event a Covered Entity that is party to a Supported QFC (each, for purposes of this Clause, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Finance Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Finance Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support; and |
| (b) | in addition to the specifically defined terms referenced in this Clause 30.6 that apply solely to this Clause 30.6, the following capitalized terms used in this Clause have the following meanings: |
| (i) | “BHC Act Affiliate” of a party means an “Affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. |
| (ii) | “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). |
| (iii) | “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. |
| (iv) | “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). |
| 31 | The Servicing Banks |
| 31.1 | Appointment and Granting |
| (a) | The Agent. Each of the Creditor Parties appoints and authorizes (with a right of revocation) the Agent to act as its agent hereunder and under any of the other Finance Documents with such powers as are specifically delegated to the Agent by the terms of this Agreement and of |
| any of the other Finance Documents, together with such other powers as are reasonably incidental thereto. |
| (b) | The Security Trustee. |
| (i) | Authorization of Security Trustee. Each of the Creditor Parties appoints and authorizes (with a right of revocation) the Security Trustee to act as security trustee hereunder and under the other Finance Documents (other than the Notes) with such powers as are specifically delegated to the Security Trustee by the terms of this Agreement and such other Finance Documents, together with such other powers as are reasonably incidental thereto. |
| (iii) | Acceptance of Trusts. The Security Trustee hereby accepts the trusts imposed upon it as Security Trustee by this Agreement, and the Security Trustee covenants and agrees to perform the same as herein expressed and agrees to receive and disburse all monies constituting part of the Estate in accordance with the terms hereof. |
| 31.2 | Scope of Duties |
Neither the Agent nor the Security Trustee (which terms as used in this sentence and in Clause 31.5 hereof shall include reference to their respective Affiliates and their own respective and their respective Affiliates’ officers, directors, employees, agents and attorneys-in-fact):
| (a) | shall have any duties or responsibilities except those expressly set forth in this Agreement and in any of the Finance Documents, and shall not by reason of this Agreement or any of the Finance Documents be (except, with respect to the Security Trustee, as specifically stated to the contrary in this Agreement) a trustee for a Creditor Party; |
| (b) | shall be responsible to the Creditor Parties for any recitals, statements, representations or warranties contained in this Agreement or in any of the Finance Documents, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or any of the other Finance Documents, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any of the other Finance Documents or any other document referred to or provided for herein or therein or for any failure by a Security Party or any other person to perform any of its obligations hereunder or thereunder or for the location, condition or value of any property covered by any Security Interest under any of the Finance Documents or for the creation, perfection or priority of any such Security Interest; |
| (c) | shall be required to initiate or conduct any litigation or collection proceedings hereunder or under any of the Finance Documents unless expressly instructed to do so in writing by the Majority Lenders; or |
| (d) | shall be responsible for any action taken or omitted to be taken by it hereunder or under any of the Finance Documents or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith, except for its own gross negligence or willful misconduct. Each of the Security Trustee and the Agent may employ agents and attorneys-in-fact and neither the Security Trustee nor the Agent shall be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. Each of the Security Trustee and the Agent may deem and treat the payee of a Note as the holder thereof for all purposes hereof unless and until a written notice of the assignment or transfer thereof shall have been filed with the Agent. |
| 31.3 | Reliance |
Each of the Security Trustee and the Agent shall be entitled to rely upon any certification, notice or other communication (including any thereof by email) believed by it to be genuine and correct and to have been signed or sent by or on behalf of the proper person or persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by the Security Trustee or the Agent, as the case may be. As to any matters not expressly provided for by this Agreement or any of the other Finance Documents, each of the Security Trustee and the Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder or thereunder in accordance with instructions signed by the Majority Lenders, and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders.
| 31.4 | Knowledge |
Neither the Security Trustee nor the Agent shall be deemed to have knowledge or notice of the occurrence of a Potential Event of Default or Event of Default (other than, in the case of the Agent, the non-payment of principal of or interest on the Loan or actual knowledge thereof) unless each of the Security Trustee and the Agent has received notice from a Lender or the Borrower specifying such Potential Event of Default or Event of Default and stating that such notice is a “Notice of Default”. If the Agent receives such a notice of the occurrence of such Potential Event of Default or Event of Default, the Agent shall give prompt notice thereof to the Creditor Parties (and shall give each Lender prompt notice of each such non-payment). Subject to Clause 31.8 hereof, the Security Trustee and the Agent shall take such action with respect to such Potential Event of Default or Event of Default or other event as shall be directed by the Majority Lenders, except that, unless and until the Security Trustee and the Agent shall have received
such directions, each of the Security Trustee and the Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Potential Event of Default or Event of Default or other event as it shall deem advisable in the best interest of the Creditor Parties.
| 31.5 | Security Trustee and Agent as Lenders |
Each of the Security Trustee and the Agent (and any successor acting as Security Trustee or Agent, as the case may be) in its individual capacity as a Lender hereunder shall have the same rights and powers hereunder as any other Lender and may exercise the same as though it were not acting as the Security Trustee or the Agent, as the case may be, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, include each of the Security Trustee and the Agent in their respective individual capacities. Each of the Security Trustee and the Agent (and any successor acting as Security Trustee and Agent, as the case may be) and their respective affiliates may (without having to account therefor to a Lender) accept deposits from, lend money to and generally engage in any kind of banking, trust or other business with the Borrower and any of its subsidiaries or affiliates as if it were not acting as the Security Trustee or the Agent, as the case may be, and each of the Security Trustee and the Agent and their respective affiliates may accept fees and other consideration from the Borrower for services in connection with this Agreement or otherwise without having to account for the same to the Lenders.
| 31.6 | Indemnification of Security Trustee and Agent |
The Lenders severally agree, ratably in accordance with the aggregate principal amount of each Lender’s Contribution in the Loan, to indemnify each of the Agent and the Security Trustee (to the extent not reimbursed under other provisions of this Agreement, but without limiting the obligations of the Borrower under said other provisions) for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted against the Security Trustee or the Agent in any way relating to or arising out of this Agreement or any of the other Finance Documents or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby (including, without limitation, the costs and expenses which the Borrower is to pay hereunder, but excluding, unless an Event of Default has occurred and is continuing, normal administrative costs and expenses incident to the performance of their respective agency duties hereunder) or the enforcement of any of the terms hereof or thereof or of any such other documents, except that no Lender shall be liable for any of the foregoing to the extent they arise from the gross negligence or willful misconduct of the party to be indemnified.
| 31.7 | Reliance on Security Trustee or Agent |
Each Creditor Party agrees that it has, independently and without reliance on the Security Trustee, the Agent or any other Creditor Party, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrower and decision to enter into this Agreement and that it will, independently and without reliance upon the Security Trustee, the Agent or any other Creditor Party, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under this Agreement or any of the Finance Documents. None of the Security Trustee or the Agent shall be required to keep itself informed as to the performance or observance by the Borrower or the Guarantors of this Agreement or any of the Finance Documents or any other document referred to or provided for herein or therein or to inspect the properties or books of the Borrower or any Guarantor. Except for notices, reports and other documents and information expressly required to be furnished to the Creditor Parties by the Security Trustee or the Agent hereunder, neither the Security Trustee nor the Agent shall have any duty or responsibility to provide a Creditor Party with any credit or other information concerning the affairs, financial condition or business of the Borrower, any Guarantor or any subsidiaries or affiliates thereof which may come into the possession of the Security Trustee, the Agent or any of their respective affiliates.
| 31.8 | Actions by Security Trustee and Agent |
Except for action expressly required of the Security Trustee or the Agent hereunder and under the other Finance Documents, each of the Security Trustee and the Agent shall in all cases be fully justified in failing or refusing to act hereunder and thereunder unless it shall receive further assurances to its satisfaction from the
Lenders of their indemnification obligations under Clause 31.6 against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action.
| 31.9 | Resignation and Removal |
Subject to the appointment and acceptance of a successor Security Trustee or Agent (as the case may be) as provided below, each of the Security Trustee and the Agent may resign at its own expense at any time by giving twenty (20) Business Days prior notice thereof to the Creditor Parties and the Borrower, and may be removed at any time with or without cause by the Majority Lenders by giving notice thereof to the Creditor Parties and the Borrower. Upon any such resignation or removal, the Majority Lenders shall have the right to appoint, in consultation with the Borrower, a successor Security Trustee or Agent, as the case may be. If no successor Security Trustee or Agent, as the case may be, shall have been so appointed by the Lenders or, if appointed, shall not have accepted such appointment within 30 days after the retiring Security Trustee’s or Agent’s, as the case may be, giving of notice of resignation or the Majority Lenders’ removal of the retiring Security Trustee or Agent, as the case may be, then the retiring Security Trustee or Agent, as the case may be, may, on behalf of the Lenders, appoint a successor Security Trustee or Agent in consultation with the Borrower. Upon the acceptance of any appointment as Security Trustee or Agent hereunder by a successor Security Trustee or Agent, such successor Security Trustee or Agent, as the case may be, shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Security Trustee or Agent, as the case may be, and the retiring Security Trustee or Agent shall be discharged from its duties and obligations hereunder. After any retiring Security Trustee or Agent’s resignation or removal hereunder as Security Trustee or Agent, as the case may be, the provisions of this Clause 31 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Security Trustee or the Agent, as the case may be.
| 31.10 | Release of Collateral |
Without the prior written consent of the Majority Lenders and the Swap Banks, neither the Security Trustee nor the Agent will consent to any modification, supplement or waiver under any of the Finance Documents nor without the prior written consent of all of the Lenders and the Swap Banks release any Collateral or otherwise terminate any Security Interest under the Finance Documents, except that no such consent is required, and each of the Security Trustee and the Agent is authorized, to release any Security Interest covering property if the Secured Liabilities have been paid and performed in full or which is the subject of a disposition of property or refinancing permitted hereunder or to which the Lenders have consented.
| 31.11 | Role of the Mandated Lead Arrangers, Bookrunners, Structurers and Hedging Coordinator |
Except as provided in the Finance Documents, none of the Mandated Lead Arrangers, Bookrunners, Structurers or Hedge Coordinator has any obligation of any kind to any other party to this Agreement under or in connection with any Finance Document.
| 31.12 | Erroneous Payments |
| (d) | The parties hereto agree that payment of a Rescindable Amount shall not pay, prepay, repay, discharge or otherwise satisfy any Secured Liabilities owed by the Borrower or any other Security Party, except, in each case, to the extent such Rescindable Amount is, and solely with respect to the amount of such Rescindable Amount that is, comprised of funds received by the Agent from the Borrower or any other Security Party for the purpose of making such Rescindable Amount. For the avoidance of doubt, no provision in this Clause 31.12 shall be interpreted to increase (or accelerate the due date for) or have the effect of increasing (or accelerating the due date for), the Secured Liabilities of the Borrower or any other Security Party relative to the amount (and/or timing for payment) of the Secured Liabilities that would have been payable had the erroneous Rescindable Amount not been paid by the Agent. |
| 32 | Law and Jurisdiction |
| 32.1 | Governing Law |
THIS AGREEMENT AND THE OTHER FINANCE DOCUMENTS (EXCEPT AS OTHERWISE PROVIDED IN A FINANCE DOCUMENT) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES.
| 32.2 | Consent to Jurisdiction. |
| (b) | Nothing in this Clause 32.2 shall affect the right of a Creditor Party to bring any action or proceeding against a Security Party or its property in the courts of any other jurisdictions where such action or proceeding may be heard. |
| (c) | Each of the Borrower and the Guarantors hereby irrevocably and unconditionally waives to the fullest extent it may legally and effectively do so: |
| (i) | any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Finance Document to which it is a party in any New York State or Federal court and the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court; and |
| (ii) | any immunity from suit, the jurisdiction of any court in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Finance Document or from any legal process with respect to itself or its property (including without limitation attachment prior to judgment, attachment in aid of execution of judgment, set-off, execution of a judgment or any other legal process), and to the extent that in any such jurisdiction there may be attributed to such person such an immunity (whether or not claimed), such person hereby irrevocably agrees not to claim such immunity. |
| 32.3 | Creditor Party rights unaffected |
Nothing in this Clause 32 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.
| 32.4 | Meaning of “proceedings” |
In this Clause 32, “proceedings” means proceedings of any kind, including an application for a provisional or protective measure.
| 33 | Waiver of Jury Trial |
| 33.1 | WAIVER |
EACH OF THE BORROWER, THE GUARANTORS AND THE CREDITOR PARTIES MUTUALLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
| 34 | PATRIOT Act Notice |
Each of the Agent and the Lenders hereby notifies the Borrower and the Guarantors that pursuant to the requirements of the Patriot Act and the policies and practices of the Agent and each Lender, the Agent and each of the Lenders is required to obtain, verify and record certain information and documentation that identifies each Security Party, which information includes the name and address of each Security Party and such other information that will allow the Agent and each of the Lenders to identify each Security Party in accordance with the PATRIOT Act.
| 35 | Amendment and Restatement |
| 35.1 | Amendment and Restatement |
| (a) | On the Effective Date, the Original Loan Agreement shall be amended and restated in its entirety by this Agreement, and the Original Loan Agreement shall thereafter be of no further force and effect, except to evidence (i) the incurrence by the Security Parties of the indebtedness, liabilities and obligations under the Original Loan Agreement (whether or not such indebtedness, liabilities and obligations are contingent as of the Effective Date), (ii) the representations and warranties made by the Security Parties as the Effective Date and (iii) any action or omission performed or required to be performed pursuant to such Original Loan Agreement prior to the Effective Date (including any failure, prior to the Effective Date, to comply with the covenants contained in such Original Loan Agreement). The amendments and restatements set forth herein shall not cure any breach thereof or any “Potential Event of Default” or “Event of Default” under and as defined in the Original Loan Agreement existing prior to the Effective Date, provided that the Creditor Parties acknowledge and agree that no such Potential Event of Default or Event of Default exists as of the Effective Date. This Agreement is not in any way intended to evidence payment, extinguishment or novation of all or any portion of the obligations and liabilities existing under the Original Loan Agreement. |
| (b) | The terms and conditions of this Agreement and the Creditor Parties’ rights and remedies under this Agreement and the other Finance Documents shall apply to (i) all of the indebtedness, liabilities and obligations incurred hereunder and the other Finance Documents and (ii) all of the indebtedness, liabilities and obligations of the Security Parties incurred under the Original Loan Agreement and the other “Finance Documents” (as defined in the Original Loan Agreement) (the “Original Finance Documents”). |
| (c) | Each Security Party hereby acknowledges and confirms the security interests, liens and collateral granted pursuant to the Original Finance Documents (to which it is a party) to the |
| Security Trustee for the benefit of the Creditor Parties (as defined in the Original Loan Agreement), which security interests, liens and interests in collateral shall continue in full force and effect during the term of this Agreement and any renewals thereof and shall continue to secure the indebtedness, liabilities and obligations of the Security Parties incurred under the Original Loan Agreement and secure the indebtedness, liabilities and obligation of the Security Parties incurred under this Agreement. Each of the Security Parties hereby consents to the execution, delivery and performance of this Agreement and all of the other Finance Documents executed in connection therewith. |
| (d) | On and after the Effective Date, (i) all references to the Original Loan Agreement (including any references to the “Loan Agreement”) in the Finance Documents (other than this Agreement) shall be deemed to refer to this Agreement, (ii) all references to the Notes in the Finance Documents shall be deemed to include any amended and restated Notes executed and delivered by the Borrower pursuant to this Agreement, (iii) all references to any Article, Section or sub-clause of the Original Loan Agreement in any Finance Document (other than this Agreement) shall be deemed to be references to the corresponding provisions of this Agreement. |
| (e) | This amendment and restatement is limited as written and is not a consent to any other amendment, restatement or waiver, whether or not similar and, except as expressly provided herein or in any other Finance Document, all terms and conditions of the Original Finance Documents remain in full force and effect unless otherwise specifically amended hereby or amended by any other Finance Document. |
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
WHEREFORE, the parties hereto have caused this Loan Agreement to be executed as of the date first above written.
DORIAN LPG FINANCE LLC, as Borrower By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | DORIAN LPG LTD., as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: Treasurer & CFO |
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COMET LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | CONCORDE LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President |
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DORIAN HOUSTON LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | DORIAN SAO PAULO LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President |
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DORIAN ULSAN LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | DORIAN AMSTERDAM LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President |
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DORIAN MONACO LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | DORIAN BARCELONA LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President |
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CORVETTE LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President | DORIAN EXPLORER LPG TRANSPORT LLC, as Guarantor By: /s/ Theodore B. Young Name: Theodore B. Young Title: President |
| |
[Signature Page to Amended and Restated Loan Agreement]
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Agent and Security Trustee By: /s/ Kelly Garretson Name: Kelly Garretson Title: Attorney-In-Fact | CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Lender and Swap Bank By: /s/ Kelly Garretson Name: Kelly Garretson Title: Attorney-In-Fact |
| |
| |
[Signature Page to Amended and Restated Loan Agreement]
ING BANK N.V., LONDON BRANCH as Lender By: /s/ Wei Long Liang Name: Wei Long Liang Title: Authorized Signatory By: /s/ Robartus Krol Name: Robartus Krol Title: Director ING CAPITAL MARKETS LLC, as Swap Bank By: /s/ Juan Carlos Vallarino Name: Juan Carlos Vallarino Title: Director By: /s/ Filipe Barreto Name: Filipe Barreto Title: Director |
[Signature Page to Amended and Restated Loan Agreement]
BNP PARIBAS, as Lender and Swap Bank By: /s/ Eric Dulcire Name: Eric Dulcire Title: Managing Director By: /s/ Mathieu Vidal Name: Mathieu Vidal Title: |
[Signature Page to Amended and Restated Loan Agreement]
DANISH SHIP FINANCE A/S, as Lender and Swap Bank By: /s/ Erik I. Lassen Name: Erik I. Lassen Title: CEO By: /s/ Ole Staergaard Name: Ole Staergaard Title: Senior Client Executive |
[Signature Page to Amended and Restated Loan Agreement]
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL), as Lender and Swap Bank By: /s/ Per Olav Bucher-Johannessen Name: Per Olav Bucher-Johannessen Title: By: /s/ Hans Christian Kjelsrud Name: Hans Christian Kjelsrud Title: |
[Signature Page to Amended and Restated Loan Agreement]
Exhibit 10.1
Name: | Dorian LPG Finance LLC |
Jurisdiction of Formation: | Marshall Islands |
963243 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian LPG Ltd. |
Jurisdiction of Formation: | Marshall Islands |
62405 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC Attention: Mr. Ted Young, CFO 27 Signal Road Stamford, CT 06902 |
Name: | Comet LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962663 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Concorde LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962864 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Houston LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
Registration number (or equivalent, if any) | 962641 |
Registered address | Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 |
Address for service of process and notices | c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Sao Paulo LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962649 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Ulsan LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
144
962664 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Amsterdam LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962642 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Monaco LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
Registration number (or equivalent, if any) | 962645 |
Registered address | Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 |
Address for service of process and notices | c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Barcelona LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962643 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
145
Name: | Corvette LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962466 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
Name: | Dorian Explorer LPG Transport LLC |
Jurisdiction of Formation: | Marshall Islands |
962682 | |
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
c/o Dorian LPG (USA) LLC 27 Signal Road Stamford, CT 06902 |
146
Lender | Revolving Credit Commitment | Term Loan Facility Contribution | Total |
Crédit Agricole Corporate and Investment Bank 1301 Avenue of the Americas New York, New York 10019 United States Attn: Yannick Le Gourieres / Alex Foley Tel: +1 212 261 4039 / +1 212 261 3869 / +1 212 261 7458 Email: [email protected] [email protected] [email protected] | $12,019,230.78 | $51,682,692.34 | $63,701,923.11 |
ING Bank N.V., London Branch 8-10 Moorgate London, EC2R 6DA Attention: Weilong Liang / S. (Saad) Malik Tel: +44 (0)7805 756 852 / +44 7917 958 527 Email: [email protected] / [email protected] | $12,019,230.78 | $51,682,692.34 | $63,701,923.11 |
BNP Paribas 9 Rue du Débarcadère 93500 PANTIN (France) (ACI : CPE02A1 – Immeuble Océanie) Attention: Julie Bernard / Vanima Calinghee Tel: +33 1 87 74 60 39 / +33 1 58 16 62 27 Email: [email protected] / | $8,653,846.15 | $37,211,538.44 | $45,865,384.59 |
Danish Ship Finance A/S Sankt Annae Plads 3 1250 Copenhagen K, Denmark Attention: Ole Stærgaard Tel: +45 33 74 10 27 Email: [email protected] | $8,653,846.15 | $37,211,538.44 | $45,865,384.59 |
Skandinaviska Enskilda Banken AB (publ) Filipstad Brygge 1 P.O. Box 1843 Vika NO-0123 Oslo, Norway Attention: Gjert Moberg/ Kari Norheim Kvistad Tel: +47 99490831/ +4799439989 Email: [email protected] [email protected] with copies to: SEB Structured Credit Operations: [email protected] | $8,653,846.15 | $37,211,538.44 | $45,865,384.59 |
Total | $50,000,000 | $215,000,000 | $265,000,000 |
147
Swap Bank | Booking Office |
Crédit Agricole Corporate and Investment Bank | 1301 Avenue of the Americas New York, New York 10019 United States Attn: Yannick Le Gourieres / Alex Foley Tel: +1 212 261 4039 / +1 212 261 3869 / +1 212 261 7458 Email: [email protected] / |
ING Capital Markets LLC | 1133 Avenue of the Americas New York, New York 10036 Attention: Juan Carlos Vallarino Email: [email protected] Telephone: +1 646 424 6606 |
BNP Paribas | 9 Rue du Débarcadère 93500 PANTIN (France) (ACI : CPE02A1 – Immeuble Océanie) Attention: Julie BERNARD / Vanima CALINGHEE Email: [email protected] / Telephone: +33 1 87 74 60 39 / +33 1 58 16 62 27 |
Danish Ship Finance A/S | Sankt Annae Plads 3 1250 Copenhagen K, Denmark Attention: Ole Stærgaard Email: [email protected] Telephone: +45 33 74 10 27 |
Skandinaviska Enskilda Banken AB (publ) | Filipstad Brygge 1 P.O. Box 1843 Vika NO-0123 Oslo, Norway Attention: Gjert Moberg/Kari Norheim Kvistad Email: [email protected] with copies to SEB Structured Credit Operations: Telephone: +47 99490831/+47 99439989 |
148
Agent | Crédit Agricole Corporate and Investment Bank Asset Finance Groups – Ship Finance 12 Place des Etats-Unis CS 70052 92547 Montrouge Cedex, France Attn: Agency and Middle-Office for Shipping Telephone: +33 1 41 89 98 05 / +33 1 41898696 Email: [email protected] [email protected] [email protected] Crédit Agricole Corporate and Investment Bank 1301 Avenue of the Americas New York, New York 10019 United States Attn: Yannick Le Gourieres / Alex Foley Telephone: +1 212 261 4039 / +1 212 261 3869 / +1 212 261 7458 Email [email protected] |
Security Trustee | Crédit Agricole Corporate and Investment Bank Asset Finance Groups – Ship Finance 12 Place des Etats-Unis CS 70052 92547 Montrouge Cedex, France Attn: Agency and Middle-Office for Shipping Telephone: +33 1 41 89 98 05 / +33 1 41898696 Email: [email protected] [email protected] [email protected] Crédit Agricole Corporate and Investment Bank 1301 Avenue of the Americas New York, New York 10019 United States Attn: Yannick Le Gourieres / Alex Foley Telephone: +1 212 261 4039 / +1 212 261 7458 Email: [email protected] [email protected] [email protected] |
149
ORIGINAL VESSELS
Vessel 1
Vessel Name | COMET |
Owner | Comet LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000664 |
Gross Tonnage | 48,060 |
Net Tonnage | 18,641 |
Shipyard | Hyundai HI |
Build Year | 2014 |
Vessel 2
Vessel Name | CONCORDE |
Owner | Concorde LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000781 |
Gross Tonnage | 48,060 |
Net Tonnage | 18,641 |
Shipyard | Hyundai HI |
Build Year | 2015 |
Vessel 3
Vessel Name | COBRA |
Owner | Dorian Houston LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000750 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 4
Vessel Name | CONTINENTAL |
Owner | Dorian Sao Paulo LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000751 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
150
Vessel 5
Vessel Name | CONSTITUTION |
Owner | Dorian Ulsan LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000782 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 6
Vessel Name | COMMODORE |
Owner | Dorian Amsterdam LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000780 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 7
Vessel Name | CHEYENNE |
Owner | Dorian Monaco LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000790 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 8
Vessel Name | CLERMONT |
Owner | Dorian Barcelona LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000794 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 9
151
Vessel Name | CORVETTE |
Owner | Corvette LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000668 |
Gross Tonnage | 48060 |
Net Tonnage | 18641 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
Vessel 10
Vessel Name | CHALLENGER |
Owner | Dorian Explorer LPG Transport LLC |
Flag | Bahamas |
Official Number | 7000796 |
Gross Tonnage | 47379 |
Net Tonnage | 18644 |
Shipyard | Hyundai SHI |
Build Year | 2015 |
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To:[AGENT], as Agent
[Address]
[Date]
DRAWDOWN NOTICE
| 2 | We request to borrow an Advance as follows: |
| (a) | Amount: US$[–]; |
| (b) | Drawdown Date: [–]; |
| (c) | Type of Advance: [Term Loan Advance][Revolving Advance][Accordion Advance] |
| (d) | [Duration of the first Interest Period shall be [–] months;] and |
| (e) | Payment instructions: |
[–]
| 3 | We represent and warrant that: |
| (a) | no Event of Default or Potential Event of Default has occurred or would result from the borrowing of the Advance; |
| (b) | the representations and warranties in Clause 10 and those of the Borrower or any other Security Party which are set out in the other Finance Documents are true and not misleading as of the date of this Drawdown Notice and will be true and not misleading as of the Drawdown Date, in each case with reference to the circumstances then existing; |
| (c) | there has been no material change in the consolidated financial condition, operations or business of the Borrower or of the Guarantors since the date on which the Borrower provided information concerning those topics to the Agent and/or any Lender[; and] |
| (d) | [if the Collateral Maintenance Ratio were applied immediately following the making of an Advance, the Borrower would not be required to provide additional Collateral or prepay part of the Loan under Clause 15; and |
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| (e) | if the Leverage Ratio were applied immediately following the making of the Revolving Advance, the Margin would not change from its current Level as in effect immediately prior to such Revolving Advance.] |
| 4 | This notice cannot be revoked without the prior consent of the Majority Lenders. |
| 5 | [We authorize you to deduct the outstanding fees and expenses referred to in Clause 21 from the amount of the Advance.] |
_________________________________
Name:
Title:
for and on behalf of
DORIAN LPG FINANCE LLC
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The following are the documents referred to in Clause 9.1(a)(i):
| 1 | A duly executed original of this Agreement and any Master Agreement (if applicable). |
| 3 | Copies of the constitutional documents and each amendment thereto of each of the Security Parties, certified as of a date reasonably near the date of the first Drawdown Notice by an authorized person of such party as being a true and correct copy thereof. |
| 4 | Copies of the resolutions of the directors (or equivalent governing body) and, where applicable, the shareholders (or equivalent equity holders), of each of the Security Parties authorizing the execution of each of the Finance Documents and, in the case of the Borrower, authorizing an authorized person of the Borrower to give the first Drawdown Notice and other notices required under the Finance Documents, in each case certified as of a date reasonably near the date of the first Drawdown Notice by an authorized person of such party as being a true and correct copy thereof. |
| 5 | An incumbency certificate in respect of the officers and directors (or equivalent) of each of the Security Parties and signature samples of any signatories to any Finance Document. |
| 6 | The original or a certified copy of any power of attorney under which any Finance Document is executed on behalf of a Security Party. |
| 7 | Copies of all consents which a Security Party requires to enter into, or make any payment under, any Finance Document, each certified as of a date reasonably near the date of the first Drawdown Notice by an authorized person of such party as being a true and correct copy thereof, or certification by such authorized person that no such consents are required. |
| 9 | On or before the Original Effective Date, a Beneficial Ownership Certification in relation to any Security Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. |
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The following are the documents referred to in Clause 9.1(b), with each reference to a “Vessel” below being deemed to refer to the Vessel for which an Advance is requested:
| 1 | A duly executed original of each Finance Document (and of each document required to be delivered by each Finance Document) other than those referred to in Part A(1). |
| 2 | Documentary evidence that: |
| (a) | each Vessel is definitively and permanently registered in the name of the relevant Owner Guarantor under an Approved Flag; |
| (b) | the Mortgage has been duly recorded against each Vessel as a valid first preferred or priority ship mortgage in accordance with the laws of the Approved Flag on which such Vessel is registered; |
| (c) | the Security Interests intended to be created by each of the Finance Documents have been duly perfected under applicable law; |
| (d) | each Vessel is in the absolute and unencumbered ownership of the relevant Owner Guarantor save as contemplated by the Finance Documents; |
| (e) | each Vessel is insured in accordance with the provisions of Clause 13 of this Agreement and all requirements therein in respect of insurances have been complied with; and |
| 3 | Evidence satisfactory to the Agent that if the Collateral Maintenance Ratio were applied immediately following the making of such Advance, the Borrower would not be required to provide additional Collateral or prepay part of the Loan under Clause 15 based on the most recently available appraisals determining the Fair Market Value of the Vessels. |
| 5 | The following documents establishing that each Vessel will, as from the Drawdown Date in respect of such Vessel, be managed by an Approved Manager on terms acceptable to the Agent: |
| (a) | a copy of each relevant Approved Management Agreement, certified as of the Drawdown Date in respect of such Vessel by an authorized person of the relevant Owner Guarantor as being a true and correct copy thereof; |
| (b) | a Manager’s Undertaking executed by each Approved Manager providing technical or commercial management services, in favor of the Agent; and |
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| (c) | copies of each Approved Manager’s Document of Compliance and of the ISSC and Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and the tonnage certificate, certified as of the relevant Drawdown Date by an authorized person of the relevant Owner Guarantor as being a true and correct copy thereof. |
| 6 | A copy of the Green Passport relating to each Vessel. |
| 7 | Copies of any Charters relating to each Vessel. |
| 8 | Copies of any mandates or other documents required in connection with the opening or operation of the relevant Earnings Accounts, each certified as of a date reasonably near the Closing Date by an officer of the Borrower as being a true and correct copy thereof. |
| 9 | A favorable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for each Vessel as the Agent may require. |
| 10 | A Compliance Certificate, setting forth (among other things) (a) the Leverage Ratio and the corresponding Margin, (b) compliance with the covenants set forth in Clause 12 (Financial Covenants) for the period ending March 31, 2022, and (c) compliance with Clause 15 (Collateral Maintenance Ratio). |
| 11 | A Sustainability Certificate for the period ending December 31, 2021. |
| 12 | A favorable opinion of Watson Farley & Williams LLP, New York and Marshall Islands counsel for the Security Parties, in form, scope and substance satisfactory to the Creditor Parties. |
| 13 | Favorable legal opinions from lawyers appointed by the Borrower or the Agent on such matters concerning the laws of such relevant jurisdictions as the Agent may require. |
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The following are the documents referred to in Clause 9.1(c):
| 1 | A duly executed original of this Agreement, an amended and restated Note relating to the Revolving Credit Facility, and each Fee Letter required by the Lenders to be delivered on the Effective Date. |
| 2 | A bringdown certificate in respect of the constitutional documents and each amendment thereto of each of the Security Parties delivered under Part A(3) of this Schedule 4, certified as of the Effective Date by an authorized person of such party. |
| 3 | Copies of the resolutions of the directors (or equivalent governing body) and, where applicable, the shareholders (or equivalent equity holders), of each of the Security Parties authorizing the execution of each of this Agreement and the other Finance Documents described in this Part C, in each case certified as of the Effective Date by an authorized person of such party as being a true and correct copy thereof. |
| 4 | A bringdown certificate in respect of the incumbency certificate in respect of the officers and directors (or equivalent) of each of the Security Parties delivered under Part A(5) of this Schedule 4. |
| 5 | The original or a certified copy of each power of attorney (if any) under which this Agreement and the other Finance Documents described in this Part C are executed on behalf of a Security Party. |
| 6 | Copies of all consents which a Security Party requires to enter into, or make any payment under, any Finance Document described in this Part C, each certified as of a date reasonably near the Effective Date by an authorized person of such party as being a true and correct copy thereof, or certification by such authorized person that no such consents are required. |
| 7 | A favorable opinion of Baker Donelson, New York and Marshall Islands counsel for the Security Parties, in form, scope and substance satisfactory to the Creditor Parties. |
| 8 | Favorable legal opinions from lawyers appointed by the Borrower or the Agent on such matters concerning the laws of such relevant jurisdictions as the Agent may require. |
| 9 | If the Agent so requires, in respect of any of the documents referred to above, to the extent not prepared in the English language, a certified English translation prepared by a translator approved by the Agent. |
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The following are the documents referred to in Clause 9.1(d):
| 1 | A copy of a certificate dated reasonably near the Effective Date, certifying that the relevant Accordion Vessel Owner is duly incorporated or formed and in good standing under the laws of its jurisdiction of incorporation or formation and issued by such jurisdiction. |
| 2 | A copy of the constitutional documents and each amendment thereto of the relevant Accordion Vessel Owner, certified as of the relevant Drawdown Date by an authorized person of such party as being a true and correct copy thereof |
| 3 | A bringdown certificate in respect of the constitutional documents and each amendment thereto of the Borrower previously delivered pursuant to this Schedule 4, certified as of the Effective Date by an authorized person of such party. |
| 4 | A copy of the resolutions of the directors (or equivalent governing body) and, where applicable, the shareholders (or equivalent equity holders), of each of the Security Parties authorizing the execution of the relevant Accordion Amendment and the other Finance Documents described in this Part D, in each case certified as of the Drawdown Date by an authorized person of such party as being a true and correct copy thereof. |
| 5 | An incumbency certificate in respect of the officers and directors (or equivalent) of the relevant Accordion Vessel Owner and signature samples of such Accordion Vessel Owner’s signatories to the relevant Accordion Amendment and the other Finance Documents described in this Part D. |
| 6 | A bringdown certificate in respect of the incumbency certificate in respect of the officers and directors (or equivalent) of each of the Security Parties (other than the relevant Accordion Vessel Owner) delivered under Part A(5) of this Schedule 4. |
| 7 | The original or a certified copy of each power of attorney (if any) under which the relevant Accordion Amendment and the other Finance Documents described in this Part D are executed on behalf of a Security Party. |
| 8 | Copies of all consents which a Security Party requires to enter into, or make any payment under, any Finance Document described in this Part D, each certified as of a date reasonably near the Effective Date by an authorized person of such party as being a true and correct copy thereof, or certification by such authorized person that no such consents are required. |
| 9 | A duly executed original of each of the following Finance Documents relating to the Accordion Advance, the Accordion Vessel or the Accordion Vessel Owner, as the case may be: |
| (a) | an Accordion Amendment (including the joinder of the relevant Accordion Vessel Owner as an Owner Guarantor hereunder); |
| (b) | a Charter Assignment; |
| (c) | an Earnings Assignment; |
| (d) | an Insurance Assignment; |
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| (e) | a Mortgage; |
| (f) | a Shares Pledge; |
| (g) | a Manager’s Undertaking; |
| (h) | a Note; and |
| (i) | any Subordination Agreement. |
| 10 | Documentary evidence that: |
| (a) | the Accordion Vessel is definitively and permanently registered in the name of the relevant Accordion Vessel Owner under an Approved Flag; |
| (b) | the Mortgage has been duly recorded against the Accordion Vessel as a valid first preferred or priority ship mortgage in accordance with the laws of the Approved Flag on which such Vessel is registered; |
| (c) | the Security Interests intended to be created by each of the Finance Documents have been duly perfected under applicable law; |
| (d) | the Accordion Vessel is in the absolute and unencumbered ownership of the relevant Accordion Vessel Owner save as contemplated by the Finance Documents; |
| (e) | the Accordion Vessel is insured in accordance with the provisions of Clause 13 of this Agreement and all requirements therein in respect of insurances have been complied with; and |
| (f) | the Accordion Vessel maintains a class notation of 1A (or equivalent) with the Classification Society free of any material overdue recommendations or adverse notations (which status shall be established by a Confirmation of Class Certificate issued by the Classification Society and dated a date reasonably near the Drawdown Date (NB: a “Class Statement” or similar instrument shall not be acceptable for purposes of this clause)). |
| 11 | Evidence satisfactory to the Agent that if the Collateral Maintenance Ratio were applied immediately following the making of such Advance, the Borrower would not be required to provide additional Collateral or prepay part of the Loan under Clause 15 based on the most recently available appraisals determining the Fair Market Value of the Vessels (including the Accordion Vessel). |
| 12 | Documentary evidence that the relevant Accordion Vessel Owner has instructed the Classification Society as required by Clause 14.4 in respect of the Accordion Vessel that is or is to become Collateral and a duly executed undertaking from such Classification Society required by Clause 14.4. |
| 13 | The following documents establishing that the Accordion Vessel will, as from the Drawdown Date in respect of the Accordion Vessel, be managed by an Approved Manager on terms acceptable to the Agent: |
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| (a) | a copy of each relevant Approved Management Agreement, certified as of the Drawdown Date in respect of such Vessel by an authorized person of the relevant Accordion Vessel Owner as being a true and correct copy thereof; |
| (b) | a Manager’s Undertaking executed by each Approved Manager providing technical or commercial management services, in favor of the Agent; and |
| (c) | copies of each Approved Manager’s Document of Compliance and of the ISSC and Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and the tonnage certificate, certified as of the relevant Drawdown Date by an authorized person of the relevant Accordion Vessel Owner as being a true and correct copy thereof. |
| 14 | A copy of the Green Passport relating to the Accordion Vessel. |
| 15 | A copy of the Accordion Vessel Acquisition Contract relating to the Accordion Vessel and the relevant Escrow Agreement, if any. |
| 16 | Copies of any Charters relating to the Accordion Vessel. |
| 17 | A Compliance Certificate, setting forth compliance with the covenants set forth in Clause 12 (Financial Covenants) on a pro forma basis after giving effect to such Accordion Advance. |
| 18 | Copies of any mandates or other documents required in connection with the opening or operation of any Earnings Account being opened in respect of the Accordion Vessel, each certified as of a date reasonably near the Drawdown Date of the relevant Accordion Advance by an officer of the Borrower as being a true and correct copy thereof. |
| 19 | A favorable opinion from an independent insurance consultant acceptable to the Agent on such matters relating to the insurances for the Accordion Vessel as the Agent may require. |
| 20 | A favorable opinion of Baker Donelson, New York and Marshall Islands counsel for the Security Parties, in form, scope and substance satisfactory to the Creditor Parties. |
| 21 | Favorable legal opinions from lawyers appointed by the Borrower or the Agent on such matters concerning the laws of such relevant jurisdictions as the Agent may require. |
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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: | [AGENT], for itself and for and on behalf of the Borrower, each other Security Party, the Security Trustee, each Lender and each Swap Bank, as defined in the Loan Agreement referred to below. |
[Date]
| 2 | In this Certificate, terms defined in the Loan Agreement shall, unless the contrary intention appears, have the same meanings when used in this Certificate and: |
| 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. |
| 5 | [By virtue of this Certificate and Clause 28 of the Loan Agreement, the Transferor is discharged [entirely from its Commitment which amounts to $[–]] [from [–]% 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 28 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 28 of the Loan Agreement. |
162
| 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 Loan Agreement and each of the other Finance Documents; |
| (b) | agrees that it will have no rights of recourse on any ground against the Transferor, the Agent, the Security Trustee or any Lender in the event that: |
| (i) | any of the Finance Documents prove to be invalid or ineffective; |
| (ii) | the Borrower or any other Security Party fails to observe or perform its obligations, or to discharge its liabilities, under any of the Finance Documents; |
| (iii) | it proves impossible to realize 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 Borrower or any other 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 or any Lender in the event that this Certificate proves to be invalid or ineffective; |
| (d) | warrants to the Transferor and each Relevant Party that: |
| (i) | it has full capacity to enter into this transaction and has taken all corporate action and obtained all consents which it needs to take or obtain in connection with this transaction; and |
| (ii) | that this Certificate is valid and binding as regards the Transferee; |
| (e) | confirms the accuracy of the administrative details set out below regarding the Transferee; and |
| (f) | confirms that, immediately following the effective date of this Certificate, it will be a FATCA Exempt Party. |
163
| 11 | The Transferee shall repay to the Transferor on demand so much of any sum paid by the Transferor under paragraph 10 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: _______________________
Name:Name:
Title:Title:
Date:Date:
Agent
Signed for itself and for and on behalf of itself
as Agent and for every other Relevant Party
[AGENT]
By: _______________________
Name:
Title:
Date:
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Administrative Details of Transferee
Name of Transferee:
Lending Office:
Contact Person
(Loan Administration Department):
Telephone:
Email: Contact Person
(Credit Administration Department):
Telephone:
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.
165
Clarksons Valuations Limited
Gibsons Shipbrokers
Fearnleys A.S.
Braemar ACM Shipbroking
Simpson Spence Young Ltd
Arrow Shipbroking Group
Grieg Shipbrokers
166
Security Interests in the Equity Interests of the Excluded Subsidiaries
167
[–], as Agent
[Address]
[Date]
Dear Sirs
Amended and Restated Loan Agreement dated as of [–], 2023 (the “Loan Agreement”) among ourselves, as Borrower, the Guarantors referred to therein, the Lenders referred to therein, the Bookrunners and Structurers referred to therein, the Mandatory Lead Arrangers referred to therein, the Swap Banks referred to therein, and yourselves as Agent and as Security Trustee.
We refer to:
| 1 | the Loan Agreement; |
| 2 | the Master Agreement dated [–] made between ourselves and [–]; and |
| 3 | a Confirmation dated [–] delivered pursuant to the said Master Agreement 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,
.................................................
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Appendix A
Form of Compliance Certificate
To: Crédit Agricole Corporate and Investment Bank, as Agent
From: Dorian LPG Ltd., as Parent Guarantor
Dated [•]
Amended and Restated Loan Agreement, dated December 22, 2023 (the “Agreement”)
I/We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
I/We have reviewed (a) the [audited][unaudited] consolidated financial statements of the Parent Guarantor for the period ended _____________.
I/We confirm that for the period indicated above:
(a) Leverage Ratio and Corresponding Margin
The Leverage Ratio as provided in the definition of “Margin” is [__], as evidenced by the following calculations: [Set out in reasonable detail computations as to the Leverage Ratio].
Therefore, the Margin is set as indicated in Level [I][II][III] below.
Level | Margin | Leverage Ratio |
|---|---|---|
I | 2.05% | Less than 35% |
II | 2.10% | Greater than or equal to 35% and less than 45% |
III | 2.15% | Greater than or equal to 45% |
(b) Financial Covenants
| (i) | The Consolidated Liquidity of the Parent Guarantor is at least equal to the greater of (a) $27,500,000, and (b) 5% of consolidated interest-bearing debt, as evidenced by the following: [Set out in reasonable detail computations as to compliance with Clause 12.2 (Minimum consolidated liquidity)] |
| (ii) | Maximum Leverage Ratio: the ratio of Consolidated Net Debt to Consolidated Total Capitalization for the Parent Guarantor is not more than 0.60 to 1.00, as evidenced by the following: [Set out in reasonable detail computations as to compliance with Clause 12.3 (Maximum Leverage Ratio)] |
| (iii) | Minimum Shareholders’ Equity: the Parent Guarantor maintains minimum Shareholders’ Equity equal to $400,000,000, as evidence by the following: |
| (iv) | Working Capital: The Parent Guarantor maintains positive Working Capital [Set out in reasonable detail computations as to compliance with Clause 12.5 (Working Capital)]. |
I/We confirm that no Potential Event of Default or Event of Default is continuing [EXCEPT, [IF SUCH CONDITION OR EVENT EXISTED OR EXISTS, DESCRIBE THE NATURE AND PERIOD OF EXISTENCE THEREOF AND
170
WHAT ACTION THE SECURITY PARTIES HAVE TAKEN, ARE TAKING AND PROPOSE TO TAKE WITH RESPECT THERETO]].
Signed on behalf of Dorian LPG Ltd.
By:
Name:
Title: [Chief Financial Officer]
171
Appendix B
Form of Sustainability Certificate
Appendix B
Form of Sustainability Certificate
To: Crédit Agricole Corporate and Investment Bank, as Agent and as Sustainability Coordinator
172
From: Dorian LPG Ltd., as Parent Guarantor
Dated [•]
Amended and Restated Loan Agreement, dated December 22, 2023 (the “Agreement”)
I/We refer to the Agreement. This is a Sustainability Certificate. Terms defined in the Agreement have the same meaning when used in this Sustainability Certificate unless given a different meaning in this Sustainability Certificate.
I/We confirm that, as at the date hereof:
the calculation of the Annual Efficiency Ratio (“AER”) of the vessels owned and bareboat chartered-in by the Parent Guarantor and its subsidiaries for the present calendar year ending December 31, 20[⚫], is as follows:
[⚫]
the current IMO trajectory target is as follows:
[⚫]
as demonstrated above, the the AER is [not] below the IMO trajectory targets, resulting in a Sustainability Pricing Adjustment consisting of a 0.05% [increase][reduction] to the Margin from [Insert existing Margin] to [Insert new Margin].
I/We confirm that no Event of Default or Potential Event of Default is continuing.
Signed on behalf of Dorian LPG Ltd.
By:
Name:
Title: [Chief Executive Officer] / [Chief Financial Officer]
173
APPENDIX C
FORM OF ACCORDION COMMITMENT AGREEMENT
174
ACCORDION Commitment AGREEMENT
To:Crédit Agricole Corporate and Investment Bank, as Agent
From:[●] (the “Accordion Lender”)
Dated:[●]
Re: Amended and Restated Loan Agreement dated [__], 2023
for Dorian LPG Finance LLC (the “Loan Agreement”)
| 1 | We refer to the Loan Agreement. This is an Accordion Commitment Agreement. Terms defined in the Loan Agreement have the same meaning in this Accordion Commitment Agreement unless given a different meaning in this Accordion Commitment Agreement. |
| 2 | We refer to Clause 2.5 of the Loan Agreement. |
| 3 | The Accordion Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule attached hereto (the “Accordion Commitment”) [upon becoming a Lender under the Loan Agreement pursuant to paragraph 5 below].1 |
| 4 | The proposed date on which the Accordion Commitment of the Accordion Lender is to take effect (the “Accordion Effective Date”) is [●]. |
| 5 | [On the Accordion Effective Date, the Accordion Lender shall become party to the Finance Documents as a Lender.]2 |
| 6 | [The Lending Office, address, fax number and attention details for notices to the Accordion Lender for the purposes of Clause 29 (Notices) are set out in the Schedule attached hereto]3. |
| 7 | This Accordion Commitment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Accordion Commitment Agreement. |
| 8 | This Accordion Commitment Agreement and any non-contractual obligations arising out of or in connection with it are governed by New York law. |
1 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
2 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
3 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
175
| 9 | This Agreement has been entered into on the date stated at the beginning of this Agreement. |
176
Schedule to Accordion Commitment Agreement
Lender: [Insert Lender Name]
Commitment: [Insert Commitment Amount]
Lender Notice Information: [Lending Office, Address, fax number and attention details for notices]
177
[ACCORDION LENDER]
By: _________________________
Name:
Title:
This Accordion Commitment Agreement is accepted as an Accordion Commitment Agreement for the purposes of Clause 2.5 of the Loan Agreement by the Agent and the Accordion Effective Increase Date is confirmed as [●].
Crédit Agricole Corporate and Investment Bank, as Agent
By: _________________________
Name:
Title:
178
APPENDIX D
FORM OF CONSOLIDATED MARGIN CERTIFICATE
179
CONSOLIDATED MARGIN CERTIFICATE
To: Crédit Agricole Corporate and Investment Bank, as Agent
From: Dorian LPG Ltd., as Parent Guarantor
Dated: [___]
US $290,000,000 Amended and Restated Loan Agreement, dated December [__], 2023 (the “Agreement”)
| 1 | I/We refer to the Agreement. This is a Consolidated Margin Certificate. Terms defined in the Agreement, the form of Compliance Certificate, and the form of Sustainability Certificate have the same meaning when used in this Consolidated Margin Certificate unless given a different meaning in this Consolidated Margin Certificate. |
| 2 | The Leverage Ratio and Corresponding Margin as set forth in the Compliance Certificate appended hereto indicate the applicable Margin shall be [__]%. |
| 3 | The Sustainability Certificate for the calendar year ended December 31, [____]4 indicates that the Sustainability Pricing Adjustment shall result in a [__]% reduction to the Margin. |
| 4 | Therefore the total adjustments as set forth in paragraphs 2 and 3 herein shall result in the Margin being [__]%. |
| 5 | I/We confirm that no Event of Default or Potential Event of Default is continuing. |
Signed on behalf of Dorian LPG Ltd.
By:
Name: Theodore B. Young
Title: Chief Financial Officer
4 Sustainability certificate to be delivered within 180 days of calendar year end.
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