UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
For the quarterly period ended
OR
For the transition period from __________ to __________
Commission File Number:

Dorian LPG Ltd.
(Exact name of registrant as specified in its charter)
| ||
(State or other jurisdiction of incorporation or organization) |
| (I.R.S. Employer Identification No.) |
c/o Dorian LPG (USA) LLC |
| |
(Address of principal executive offices) |
| (Zip Code) |
Registrant's telephone number, including area code: (
Former name, former address and former fiscal year, if changed since last report: Not Applicable
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of Each Class | | Trading Symbol | | Name of Each Exchange on Which Registered |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Accelerated filer ☐ | Non-accelerated filer ☐ | ||||
Smaller reporting company | 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. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes
As of October 30, 2026, there were
FORWARD-LOOKING STATEMENTS
This quarterly report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform Act of 1995 (the “PSLRA”), including analyses and other information based on forecasts of future results and estimates of amounts not yet determinable and statements relating to our future prospects, developments and business strategies. We intend for these forward-looking statements to be covered by the safe harbor provided for under the sections referenced in the immediately preceding sentence and the PSLRA. Forward-looking statements are identified by their use of terms and phrases such as “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “forecast,” “intend,” “likely,” “may,” “might,” “pending,” “plan,” “possible,” “potential,” “predict,” “project,” “seeks,” “should,” “targets,” “will,” “would,” and similar expressions, terms and phrases, including references to assumptions. Where we express an expectation or belief as to future events or results, such expectation or belief is expressed in good faith and believed to have a reasonable basis. However, our forward-looking statements are subject to risks, uncertainties, and other factors, which could cause actual future activities and results of operations to differ materially from future results expressed, projected, or implied by those forward-looking statements in this quarterly report.
These risks include the risks that are identified in the “Risk Factors” section of this quarterly report and of our Annual Report on Form 10-K for the fiscal year ended March 31, 2026, and also include, among others, risks associated with the following:
| ● | our future operating or financial results; |
| ● | our business strategies, including with respect to acquisitions and chartering, and expected capital spending or operating expenses, as well as any difficulty we may have in managing planned growth properly; |
| ● | the cost and effects of cybersecurity incidents or other failures, interruptions, or security breaches of our systems or those of our customers or third-party providers, including software failures, unforeseeable security breaches, or incidents stemming from the misuse or intentional or unintentional misapplication of artificial intelligence in our business; |
| ● | the strength of world economies; |
| ● | general domestic and international geopolitical conditions, including the conflict between the U.S. and Iran in the Arabian Gulf and hostile activity by the Houthis in the nearby Red Sea, and continued political uncertainty in Venezuela and the corresponding impact on the oil and natural gas markets; |
| ● | recent and potential future trade policy matters, such as increased trade protectionism, the imposition of tariffs and other import restrictions, including those impacting the maritime shipping industry, such as the potential escalation of trade tensions between China and the U.S.; |
| ● | shipping market conditions, including charter rates, vessel values, scrapping and newbuilding activity, trading patterns, tonnage requirements and disruptions arising from geopolitical events, tariffs or changes in global trade flows; |
| ● | compliance with laws, treaties, rules, regulations and policies (including amendments or other changes thereto) applicable to the liquefied petroleum gas, or LPG, shipping industry, including greenhouse gas emission regulations and other decarbonization measures, as well as the impact and costs of our compliance therewith; |
| ● | changes in environmental or safety laws such that our vessels will no longer be afforded certain regulatory accommodations (such as being “grandfathered” into certain new laws and regulations or provided a longer grace period for compliance) if they are built prior to the effective date of such regulations; |
| ● | investors’, banks’, counterparties’ and other stakeholders’ increasing emphasis on environmental and safety concerns and increasing scrutiny and changing expectations with respect to public company Environmental, Social and Governance (“ESG”) policies and costs related to compliance with ESG measures; |
| ● | general economic conditions and specific economic conditions in the oil and natural gas industry and the countries and regions where LPG is produced and consumed, including the impact of central bank policies, intended to combat inflation and rising interest rates, on the demand for LPG; |
| ● | completion of infrastructure projects to support marine transportation of LPG, including export terminals and pipelines; |
| ● | factors affecting supply of and demand for LPG including propane, butane, isobutane, propylene and mixtures of these gases, LPG shipping, and LPG vessels, including, among other things: the production levels, price and worldwide consumption and storage of oil, refined petroleum products and natural gas, including production from United States shale fields; any oversupply of or limited demand for LPG vessels comparable to ours or higher specification vessels; trade conflicts and the imposition of tariffs or otherwise on LPG resulting from domestic and international political and geopolitical conditions or events, including “trade wars”, the ongoing conflict between Russia and Ukraine and developments in the Middle East (including without limitation the U.S. – Iran conflict, including blockades), the construction of pipelines to avoid the Straits of Hormuz; and shifts in consumer demand from LPG towards other energy sources; |
| ● | any decrease in the value of the charter-free market values of our vessels or reduction in our charter hire rates and profitability associated with such vessels as a result of an increase in the supply of or decrease in the demand for LPG, LPG shipping or LPG vessels including an increase in available tonnage due to Very Large Ethane Carriers transporting LPG; |
| ● | business disruptions, including supply chain issues, due to damage to storage or receiving facilities, or natural disasters; |
| ● | greater than anticipated levels of LPG vessel newbuilding orders or lower than anticipated rates of LPG vessel scrapping; |
| ● | the aging of the Company’s fleet which could result in increased operating costs, impairment or loss of hire; |
| ● | our ability to profitably employ our vessels, including vessels participating in the Helios Pool (defined below) and the collectability of amounts due from the Helios Pool and other counterparties; |
| ● | unavailability of spot charters and the volatility of prevailing spot market charter rates, which may affect our ability to realize the expected benefits from our time chartered-in vessels, including those in the Helios Pool; |
| ● | failure of our charterers or other counterparties to meet their obligations under our charter agreements; |
| ● | shareholders’ reliance on us to enforce our rights against contract counterparties; |
| ● | competition in the LPG shipping industry, including our ability to compete successfully for future chartering opportunities and newbuilding opportunities (if any); |
| ● | future purchase prices of newbuildings and secondhand vessels and timely deliveries of such vessels (if any) and, relatedly, the risks associated with the purchase of second-hand vessels; |
| ● | the ability to finance, construct and timely take delivery of our contracted newbuildings, including risks relating to cost overruns, delays at shipyards, performance by shipyards and suppliers, and changes in financing availability or terms; |
| ● | the performance of the Helios Pool, including the failure of its significant customers to perform their obligations and the loss or reduction in business from its significant customers (or if the same were to occur with respect to our significant customers); |
| ● | the availability of and our ability to obtain such financing and capital to refinance existing indebtedness and to fund capital expenditures, acquisitions and other general corporate purposes, the terms of such financing or capital and our ability to comply with the restrictions and other covenants set forth in our existing and future debt agreements and financing arrangements (and our ability to repay or refinance our existing debt and settling of interest rate swaps, if any); |
| ● | our costs, including crew wages, insurance, provisions, repairs and maintenance, general and administrative expenses, drydocking, and bunker prices, as applicable; |
| ● | any inability to retain and recruit qualified key executives, key employees, key consultants or skilled workers and, relatedly, our dependence on key personnel and the availability of skilled workers, and the related labor costs, including as a result of the ongoing conflict between Russia and Ukraine; |
| ● | the potential difference in interests between or among certain of our directors, officers, key executives and shareholders; |
| ● | quality and efficiency requirements from customers and applicable laws and regulations and developments regarding the technologies relating to the LPG sector and the effects of and our ability to implement new products and new technology available in our industry, including with respect to propulsion equipment and overall vessel efficiency, including the reduction of traditional emissions; |
| ● | operating hazards in the maritime transportation industry, and catastrophic events, including accidents, political events, public health threats (including the outbreak of communicable diseases), international hostilities and instability, armed conflict, piracy, attacks on vessels or other petroleum-related infrastructures and acts by terrorists, including disruptions to trade through the Red Sea, Suez Canal, Strait of Hormuz or other key shipping routes, which may disrupt global trade and shipping routes; |
| ● | the length and severity of public health concerns, including any impact on the demand for commercial seaborne transportation of LPG, supply chain disruptions and the condition of financial markets and the potential associated impacts to our global operations; |
| ● | business disruptions due to natural disasters or adverse weather outside of our control; |
| ● | the adequacy of our insurance coverage in the event of a catastrophic event; |
| ● | the failure to protect our information systems against security breaches, or the failure or unavailability of these systems for a significant period; |
| ● | the arresting or attachment of one or more of our vessels by maritime claimants; |
| ● | compliance with and changes to governmental, tax, environmental and safety laws and regulations, which may add to our costs or the costs of our customers; |
| ● | fluctuations in currencies, foreign exchange rates, and interest rates including, but not limited to, the Secured Overnight Financing Rate (“SOFR”); |
| ● | compliance with the United States Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act 2010, or other applicable regulations relating to bribery; |
| ● | the volatility of the price of shares of our common stock, par value $0.01 per share, (our “common shares”) and future sales of our common shares; |
| ● | if we will or will be able to pay dividends (irregular or otherwise) in the future, and any change or elimination of the Company’s dividend at any time at the discretion of our Board of Directors; |
| ● | our incorporation under the laws of the Republic of the Marshall Islands and the different rights to relief that may be available compared to other countries, including the United States; |
| ● | congestion at or blockages of ports or canals, including drought conditions at the Panama Canal; |
| ● | any developments in the existing Panama Canal transportation structure as a result of either the potential tender to be conducted by the Panama Canal Authority for the development of a new pipeline or the study announced by the Panamanian government and Energy Transfer LP in 2021 to analyze the prospects of building an LPG pipeline, potentially running beside the existing Panama Canal and linking the Atlantic Ocean with the Pacific Ocean; |
| ● | if we are required to pay tax on U.S. source income; |
| ● | if we are treated as a “passive foreign investment company”; and |
| ● | other factors detailed in this report and from time to time in our periodic reports. |
Actual results could differ materially from expectations expressed in the forward-looking statements if one or more of the underlying assumptions or expectations prove to be inaccurate or are not realized. You should thoroughly read this report with the understanding that our actual future results may be materially different from and worse than what we expect. Other sections of this report include additional factors that could adversely impact our business and financial performance. Moreover, we operate in an evolving environment. New risk factors and uncertainties emerge from time to time and it is not possible for our management to predict all risk factors and uncertainties, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements. We qualify all of the forward-looking statements by these cautionary statements.
We caution readers of this report not to place undue reliance on forward-looking statements. Any forward-looking statements contained herein are made only as of the date of this report, and we undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
The cash dividends referenced in this report are irregular dividends. All declarations of dividends are subject to the determination and discretion of our Board of Directors based on its consideration of various factors, including the Company’s results of operations, financial condition, level of indebtedness, anticipated capital requirements, contractual restrictions, restrictions in its debt agreements, restrictions under applicable law, its business prospects and other factors that our Board of Directors may deem relevant. The Board of Directors, in its sole discretion, may increase, decrease or eliminate the dividend at any time.
As used in this quarterly report and unless otherwise indicated, references to “Dorian,” the “Company,” “we,” “our,” “us,” or similar terms refer to Dorian LPG Ltd. and its subsidiaries.
Dorian LPG Ltd.
TABLE OF CONTENTS
PART I — FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Dorian LPG Ltd.
Unaudited Condensed Consolidated Balance Sheets
(Expressed in United States Dollars, except for share data)
| As of | | As of |
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September 30, 2026 | March 31, 2026 |
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Assets | |||||||
Current assets | |||||||
Cash and cash equivalents | $ | |
| $ | | ||
Trade receivables, net and accrued revenues | |
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Due from related parties |
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Inventories |
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Vessels held for sale | | — | |||||
Prepaid expenses and other current assets | |
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Total current assets | |
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Fixed assets | |||||||
Vessels, net |
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Vessels under construction |
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| — | |||
Total fixed assets | |
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Other non-current assets | |||||||
Deferred charges, net |
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Derivative instruments |
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Due from related parties—non-current | | | |||||
Restricted cash—non-current |
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Operating lease right-of-use assets | | | |||||
Other non-current assets | | | |||||
Total assets | $ | |
| $ | | ||
Liabilities and shareholders’ equity | |||||||
Current liabilities | |||||||
Trade accounts payable | $ | |
| $ | | ||
Accrued expenses |
| |
| | |||
Due to related parties |
| |
| — | |||
Deferred income | |
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Current portion of long-term operating lease liabilities | | | |||||
Current portion of long-term debt |
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Dividends payable | | | |||||
Total current liabilities | |
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Long-term liabilities | |||||||
Long-term debt—net of current portion and deferred financing fees |
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Long-term operating lease liabilities | | | |||||
Other long-term liabilities | | | |||||
Total long-term liabilities | |
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Total liabilities | |
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Commitments and contingencies | |||||||
Shareholders’ equity | |||||||
Preferred stock, $ |
|
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Common stock, $ |
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Additional paid-in-capital |
| |
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Treasury stock, at cost; | ( |
| ( | ||||
Retained earnings | |
| | ||||
Total shareholders’ equity | |
| | ||||
Total liabilities and shareholders’ equity | $ | |
| $ | | ||
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.
1
Dorian LPG Ltd.
Unaudited Interim Condensed Consolidated Statements of Operations
(Expressed in United States Dollars)
Three months ended | Six months ended | ||||||||||||
| September 30, 2026 | | September 30, 2025 | | September 30, 2026 | | September 30, 2025 |
| |||||
Revenues | |||||||||||||
Net pool revenues—related party | $ | | $ | | $ | | $ | | |||||
Other revenues, net | | | | | |||||||||
Total revenues | | | | | |||||||||
Expenses | |||||||||||||
Voyage expenses |
| |
| | |
| | ||||||
Charter hire expenses | | | | | |||||||||
Profit sharing expenses | | — | | — | |||||||||
Vessel operating expenses |
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| | |
| | ||||||
Depreciation and amortization |
| |
| | |
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General and administrative expenses | |
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| | |||||||
Total expenses | |
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| | |||||||
Gain on disposal of vessels | | — | | — | |||||||||
Other income—related parties | | | | | |||||||||
Operating income | |
| | |
| | |||||||
Other income/(expenses) | |||||||||||||
Interest and finance costs |
| ( |
| ( | ( |
| ( | ||||||
Interest income | |
| | |
| | |||||||
Unrealized gain/(loss) on derivatives |
| |
| ( | |
| ( | ||||||
Realized gain on derivatives | | | | | |||||||||
Other gain/(loss), net | |
| | |
| | |||||||
Total other expenses, net | ( |
| ( | ( |
| ( | |||||||
Net income | $ | |
| $ | | $ | |
| $ | | |||
Weighted average shares outstanding: | |||||||||||||
Basic | | | | | |||||||||
Diluted | | | | | |||||||||
Earnings per common share—basic |
| $ | |
| $ | | $ | |
| $ | | ||
Earnings per common share—diluted |
| $ | |
| $ | | $ | |
| $ | | ||
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.
2
Dorian LPG Ltd.
Unaudited Interim Condensed Consolidated Statements of Shareholders’ Equity
(Expressed in United States Dollars, except for shares)
Number of | | Additional | | | ||||||||||||||
common | Common | Treasury | paid-in | Retained |
| |||||||||||||
| shares | | stock | | stock | | capital | | Earnings | | Total |
| ||||||
Balance, April 1, 2025 |
| |
| $ | | $ | ( |
| $ | |
| $ | |
| $ | | ||
Net income for the period | — | — | — | — | | | ||||||||||||
Dividend ($ | — | — | — | — | ( | ( | ||||||||||||
Stock-based compensation | — | — | — | | — | | ||||||||||||
Purchase of treasury stock | — | — | ( | — | — | ( | ||||||||||||
Balance, June 30, 2025 |
| |
| $ | | $ | ( |
| $ | |
| $ | |
| $ | | ||
Net income for the period | — | — | — | — | | | ||||||||||||
Restricted share award issuances | | | — | ( | — | — | ||||||||||||
Dividend ($ | — | — | — | — | ( | ( | ||||||||||||
Stock-based compensation | — | — | — | | — | | ||||||||||||
Purchase of treasury stock | — | — | ( | — | — | ( | ||||||||||||
Balance, September 30, 2025 | | $ | | $ | ( | $ | | $ | | $ | | |||||||
Number of | | Additional | | | ||||||||||||||
common | Common | Treasury | paid-in | Retained |
| |||||||||||||
shares | | stock | | stock | | capital | | Earnings | | Total |
| |||||||
Balance, April 1, 2026 |
| |
| $ | |
| $ | ( |
| $ | |
| $ | |
| $ | | |
Net income for the period | — | — | — | — | | | ||||||||||||
Dividend ($ | — | — | — | — | ( | ( | ||||||||||||
Stock-based compensation | — | — | — | | — | | ||||||||||||
Balance, June 30, 2026 |
| |
| $ | | $ | ( |
| $ | |
| $ | |
| $ | | ||
Net income for the period | — | — | — | — | | | ||||||||||||
Restricted share award issuances | | | — | ( | — | — | ||||||||||||
Dividend ($ | — | — | — | — | ( | ( | ||||||||||||
Stock-based compensation | — | — | — | | — | | ||||||||||||
Purchase of treasury stock | — | — | ( | — | — | ( | ||||||||||||
Balance, September 30, 2026 | | $ | | $ | ( | $ | | $ | | $ | | |||||||
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.
3
Dorian LPG Ltd.
Unaudited Interim Condensed Consolidated Statements of Cash Flows
(Expressed in United States Dollars)
| Six months ended |
| |||||
September 30, 2026 | September 30, 2025 | ||||||
Cash flows from operating activities: | |||||||
Net income | $ | | $ | | |||
Adjustments to reconcile net income to net cash provided by operating activities: | |||||||
Depreciation and amortization | | | |||||
Non-cash lease expense | | | |||||
Amortization of financing costs | | | |||||
Unrealized (gain)/loss on derivatives | ( | | |||||
Stock-based compensation expense | | | |||||
Gain on disposal of vessels | ( | — | |||||
Unrealized foreign currency loss/(gain), net | | ( | |||||
Other non-cash items, net | ( | ( | |||||
Changes in operating assets and liabilities | |||||||
Trade receivables, inventories, prepaid expenses, and other current and non-current assets | ( | ( | |||||
Due from related parties | ( | ( | |||||
Operating lease liabilities—current and long-term | ( | ( | |||||
Trade accounts payable | | ( | |||||
Accrued expenses and other liabilities | ( | ( | |||||
Due to related parties | | | |||||
Payments for drydocking costs | ( | ( | |||||
Net cash provided by operating activities | | | |||||
Cash flows from investing activities: | |||||||
Payments for vessels under construction and other capital expenditures for vessels | ( | ( | |||||
Proceeds from disposal of vessels | | — | |||||
Net cash provided by/(used in) investing activities | | ( | |||||
Cash flows from financing activities: | |||||||
Proceeds from long-term debt borrowings | | — | |||||
Repayment of long-term debt borrowings | ( | ( | |||||
Repurchase of common shares | ( | ( | |||||
Financing costs paid | ( | — | |||||
Dividends paid | ( | ( | |||||
Net cash used in financing activities | ( | ( | |||||
Effects of exchange rates on cash and cash equivalents | ( | | |||||
Net increase/(decrease) in cash, cash equivalents, and restricted cash | | ( | |||||
Cash, cash equivalents, and restricted cash at the beginning of the period | | | |||||
Cash, cash equivalents, and restricted cash at the end of the period | $ | | $ | | |||
Supplemental disclosure of cash flow information | |||||||
Cash paid for interest, net of amounts capitalized | $ | | $ | | |||
Cash paid for operating lease liabilities | | | |||||
Right of use assets recognized | | — | |||||
Unpaid lease liability on initial recognition | | — | |||||
Capitalized drydocking costs included in liabilities | — | | |||||
Vessel-related capital expenditures included in liabilities | | | |||||
Unpaid dividends included in liabilities | | | |||||
Financing costs included in liabilities | | | |||||
Reconciliation of cash and cash equivalents and restricted cash reported within the consolidated balance sheets to the total amount of such items reported in the statements of cash flows: | |||||||
Cash and cash equivalents | $ | | $ | | |||
Restricted cash—non-current | | | |||||
Cash and cash equivalents and restricted cash at end of period shown in the statement of cash flows | $ | | $ | | |||
The accompanying notes are an integral part of these unaudited interim condensed consolidated financial statements.
4
Dorian LPG Ltd.
Notes to Unaudited Condensed Consolidated Financial Statements
(Expressed in United States Dollars)
1. Basis of Presentation and General Information
Dorian LPG Ltd. (“Dorian”) was incorporated on July 1, 2013 under the laws of the Republic of the Marshall Islands, is headquartered in the United States, and is engaged in the transportation of liquefied petroleum gas (“LPG”) worldwide. Specifically, Dorian and its subsidiaries (together “we”, “us”, “our”, or the “Company”) are focused on owning and operating very large gas carriers (“VLGCs”), each with a cargo carrying capacity of greater than
As of September 30, 2026,
On April 1, 2015, Dorian and MOL Energia Pte. Ltd. (“MOL Energia”), formerly known as Phoenix Tankers Pte. Ltd., began operations of Helios LPG Pool LLC (the “Helios Pool”), which entered into pool participation agreements for the purpose of establishing and operating, as charterer, under variable rate time charters to be entered into with owners or disponent owners of VLGCs, a commercial pool of VLGCs whereby revenues and expenses are shared. Refer to Note 4 below for further description of the Helios Pool.
The unaudited interim condensed consolidated financial statements and related notes have been prepared in accordance with generally accepted accounting principles in the United States of America (“U.S. GAAP”) for interim financial information and related Securities and Exchange Commission (“SEC”) rules for interim financial reporting. Accordingly, they do not include all of the information and footnotes required by U.S. GAAP for complete financial statements. In our opinion, all adjustments, consisting of normal recurring items, necessary for a fair presentation of financial position, operating results and cash flows, in all material respects, have been included in the unaudited interim condensed consolidated financial statements and related notes. The unaudited interim condensed consolidated financial statements and related notes should be read in conjunction with the audited consolidated financial statements and related notes for the year ended March 31, 2026 included in our Annual Report on Form 10-K filed with the SEC on May 27, 2026.
5
Our interim results are subject to seasonal and other fluctuations, and the operating results for any quarter are therefore not necessarily indicative of results that may be otherwise expected for the entire year.
Our subsidiaries as of September 30, 2026, which are all wholly-owned and are incorporated in the Republic of the Marshall Islands (unless otherwise noted), are listed below.
Vessel Subsidiaries
| Type of | | | |
| ||||
Subsidiary | vessel | Vessel’s name | Built | CBM(1) |
| ||||
CJNP LPG Transport LLC |
| VLGC/AC |
| Captain John NP(2) |
|
| | ||
Comet LPG Transport LLC | VLGC | Comet | | ||||||
Corvette LPG Transport LLC |
| VLGC |
| Corvette |
|
| | ||
Dorian Shanghai LPG Transport LLC | VLGC | Cougar | | ||||||
Concorde LPG Transport LLC | VLGC | Concorde | | ||||||
Dorian Sao Paulo LPG Transport LLC | VLGC | Continental | | ||||||
Dorian Ulsan LPG Transport LLC | VLGC | Constitution | | ||||||
Dorian Amsterdam LPG Transport LLC | VLGC | Commodore | | ||||||
Dorian Dubai LPG Transport LLC | VLGC | Cresques | | ||||||
Dorian Monaco LPG Transport LLC | VLGC | Cheyenne | | ||||||
Dorian Barcelona LPG Transport LLC | VLGC | Clermont(2) | | ||||||
Dorian Geneva LPG Transport LLC | VLGC | Cratis(3) | | ||||||
Dorian Cape Town LPG Transport LLC | VLGC | Chaparral(3) | | ||||||
Dorian Tokyo LPG Transport LLC | VLGC | Copernicus(3) | | ||||||
Commander LPG Transport LLC | VLGC | Commander | | ||||||
Dorian Explorer LPG Transport LLC | VLGC | Challenger | |
| |||||
Dorian Exporter LPG Transport LLC | VLGC | Caravelle(3) | | ||||||
Dorian Sakura LPG Transport LLC | VLGC | Captain Markos(3) | | ||||||
Dorian LPG Ammonia Transport LLC | VLGC/AC | Areion | | ||||||
Capricorn LPG Transport LLC | VLGC | Hull No. 3672(4) | | ||||||
Dorian Paros LPG Transport LLC | VLGC | Hull No. 2383(5) | | ||||||
Dorian Syros LPG Transport LLC | VLGC | Hull No. 2384(5) | | ||||||
Dorian Sifnos LPG Transport LLC | VLGC | Hull No.2385(5) | |
Management and Other Subsidiaries
| |
Subsidiary |
|
Dorian LPG Management Corp. | |
Dorian LPG (USA) LLC (incorporated in USA) | |
Dorian LPG (UK) Ltd. (incorporated in UK) | |
Dorian LPG Finance LLC | |
Occident River Trading Limited (incorporated in UK) | |
Dorian LPG (DK) ApS (incorporated in Denmark) | |
Dorian LPG Chartering LLC | |
Dorian LPG FFAS LLC | |
Dorian LPG Nippon Lease LLC |
| (1) | CBM: Cubic meters, a standard measure for LPG tanker capacity. |
| (2) | Vessel was subsequently sold to a third party in October 2026. Refer to Note 18 below for further information. |
| (3) | Operated pursuant to a bareboat charter agreement. Refer to Note 9 below for further information. |
| (4) | Vessel is expected to be delivered in calendar year 2029. |
| (5) | Vessel is expected to be delivered in calendar year 2030. |
2. Significant Accounting Policies
The same accounting policies have been followed in these unaudited interim condensed consolidated financial statements as those applied in the preparation of our consolidated audited financial statements for the year ended March 31, 2026 (refer to Note 2 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026) with the exception of the policy for accounting for vessels held for sale, which is included below.
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Vessels Held for sale
We classify a vessel as being held for sale when all of the following criteria are met: (i) management is committed to a plan to sell the vessel; (ii) the vessel is available for immediate sale in its present condition; (iii) an active program to locate a buyer and other actions required to complete the plan to sell the vessel have been initiated; (iv) the sale of the vessel is probable, and transfer of the vessel is expected to qualify for recognition as a completed sale within one year; (v) the vessel is being actively marketed for sale at a price that is reasonable in relation to its current fair value; and (vi) actions required to complete the plan indicate that it is unlikely that significant changes to the plan will be made or that the plan will be withdrawn. Vessels classified as held for sale are measured at the lower of their carrying amount or fair value less the cost to sell. The vessels are no longer depreciated once they meet the criteria to be classified as held for sale.
Recently Issued Accounting Pronouncements Not Yet Adopted:
In November 2024, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) 2024-03, Disaggregation of Income Statement Expenses (“ASU 2024-03”), which requires disaggregation of certain expense captions into specified categories in disclosures within the footnotes to the financial statements with the objective to address longstanding requests from investors to provide more detailed information about expenses presented on the face of the income statement. ASU 2024-03 is effective for fiscal years beginning after December 15, 2026, and interim periods within the fiscal years beginning after December 15, 2027 with early adoption permitted. The amendments are to be applied either prospectively to financial statements issued for the reporting periods after the effective date or retrospectively to any or all prior periods presented in the financial statements. We are currently evaluating the impact of the adoption of ASU 2024-03 on our financial statements and related disclosures.
In May 2026, the FASB issued Accounting Standards Update ASU 2026-02, Environmental Credits and Environmental Credit Obligations, which provides recognition, measurement, presentation and disclosure requirements for entities that generate, purchase or receive environmental credits or have regulatory compliance obligations that may be settled with environmental credits. ASU 2026-02 is effective for fiscal years beginning after December 15, 2027, and interim periods within those annual reporting periods with early adoption permitted. This guidance is to be applied retrospectively by making a cumulative-effect adjustment to the opening balance of retained earnings. We are currently evaluating the impact of adopting ASU 2026-02 on our financial statements and related disclosures.
We have considered all other recent accounting pronouncements issued and believe that none are expected to have a material effect on our financial statements.
3. Segment Reporting
Our Company operates in the international transportation of liquid petroleum gas with its fleet of vessels, each of which has the same type of customer, similar operations and maintenance requirements, operates in the same regulatory environment, and is subject to similar economic characteristics. Based on this, we have determined that our Company operates in
The Company’s Chief Executive Officer is the chief operating decision maker and evaluates performance based on net income and operating income.
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The following is a summary of information for our single reportable segment:
Three months ended | Six months ended | ||||||||||||
(in U.S. dollars) | September 30, 2026 | September 30, 2025 | September 30, 2026 | September 30, 2025 | |||||||||
Total Revenues | $ | | $ | | $ | | $ | | |||||
Gain on disposal of vessels | | — | | — | |||||||||
Less: | |||||||||||||
Voyage expenses | | | | | |||||||||
Charter hire expenses | | | | | |||||||||
Profit sharing expenses | | — | | — | |||||||||
Vessel operating expenses | | | | | |||||||||
Other segment items (1) | | | | | |||||||||
Operating income | | | | | |||||||||
Nonoperating loss(2) | ( | ( | ( | ( | |||||||||
Net income | $ | | $ | | $ | | $ | | |||||
| (1) | Other segment items include depreciation and amortization, general and administrative expenses, and other operating income. |
| (2) | Nonoperating loss includes interest and finance costs, interest income, gains and losses on derivatives, and other gains and losses. |
4. Transactions with Related Parties
Dorian (Hellas), S.A.
Dorian LPG (USA) LLC and its subsidiaries have an agreement with Dorian (Hellas) S.A. (“DHSA”), for the provision by Dorian LPG (USA) LLC and its subsidiaries of certain chartering and marine operation services to DHSA, which had agreements to outsource certain of these services to Eagle Ocean Transport Inc., which is 100% owned by Mr. John C. Hadjipateras, our Chairman, President and Chief Executive Officer. Income from the agreement with DHSA was earned and included in “Other income-related parties” totaling less than $
As of September 30, 2026 and March 31, 2026, there was nothing due from DHSA.
Helios LPG Pool LLC
On April 1, 2015, Dorian and MOL Energia began operations of the Helios Pool, which entered into pool participation agreements for the purpose of establishing and operating, as charterer, under variable rate time charters to be entered into with owners or disponent owners of VLGCs, a commercial pool of VLGCs whereby revenues and expenses are shared. We hold a
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fleet (including
As of September 30, 2026, we had net receivables from the Helios Pool of $
Through our vessel owning subsidiaries, we have chartered vessels to the Helios Pool during the six months ended September 30, 2026 and 2025. The time charter revenue from the Helios Pool is variable depending upon the net results of the pool, available days and pool points for each vessel. The Helios Pool enters into voyage and time charters with external parties and receives freight and related revenue and, where applicable, incurs voyage costs such as bunkers, port costs and commissions. At the end of each month, the Helios Pool calculates net pool revenues using gross revenues, less voyage expenses of all pool vessels, less fixed time charter hire for any chartered-in vessels, less the general and administrative expenses of the pool as variable rate time charter hire for the relevant vessel to participants based on pool points (vessel attributes such as cargo carrying capacity, scrubber-equipped status, fuel efficiency, fuel-type consumed, and speed are taken into consideration) and number of days the vessel participated in the pool in the period. In accordance with the pool participation agreements, pool points are finalized in arrears every six months ending September 30 and March 31 and pool profits are reallocated based on the actual recorded speed and consumption performance for each vessel operating in the Helios Pool during the preceding six-month period. Net pool revenues, less any amounts required for working capital of the Helios Pool, are distributed, to the extent they have been collected from third-party customers of the Helios Pool. We recognize net pool revenues on a monthly basis, when each relevant vessel has participated in the pool during the period and the amount of net pool revenues for the month can be estimated reliably. Revenue earned from the Helios Pool is presented in Note 14.
5. Vessels Held for Sale
As of September 30, 2026, we determined that the sales of our 2007-built VLGC Captain John NP and 2015-built VLGC Clermont are probable to occur within twelve months and, accordingly, were reclassified to vessels held for sale.
6. Vessels, Net
| | Accumulated | |
| ||||||
Cost | depreciation | Net book Value |
| |||||||
Balance, April 1, 2026 | $ | | $ | ( | $ | | ||||
Other additions | | — | | |||||||
Transfer to vessels held for sale | ( | | ( | |||||||
Disposals and other movements | ( | | ( | |||||||
Depreciation | — | ( | ( | |||||||
Balance, September 30, 2026 | $ | | $ | ( | $ | | ||||
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Additions to vessels, net, mainly consisted of capital improvements for certain of our VLGCs during the six months ended September 30, 2026. Our vessels, with a total carrying value of $
During the six months ended September 30, 2026, we recorded an aggregate gain on disposal of $
7. Vessels Under Construction
On June 22, 2026, we entered into a shipbuilding contract for a newbuilding dual-fuel Panamax VLGC with a cargo carrying capacity of
The analysis and movement of vessels under construction is presented in the table below:
Net book Value | ||||
Balance, April 1, 2026 | | $ | |
|
Installment payments | | |||
Other capitalized expenditures | | |||
Balance, September 30, 2026 |
| $ | | |
8. Deferred Charges, Net
The analysis and movement of deferred charges is presented in the table below:
| Drydocking |
| ||
costs |
| |||
Balance, April 1, 2026 | $ | | ||
Additions | | |||
Disposals | ( | |||
Transfer to vessels held for sale | ( | |||
Amortization | ( | |||
Balance, September 30, 2026 | $ | | ||
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9. Long-term Debt
2026 Debt Facility
On September 2, 2026, we entered into a new $
On September 2, 2026, $
As of September 30, 2026, the debt financing was secured by, among other things, eleven of our ECO VLGCs, and we were in compliance with all financial covenants.
2023 A&R Debt Facility
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the $
On April 20, 2026, we prepaid $
On September 2, 2026, we prepaid the outstanding balance of each tranche in full totaling $
BALCAP Facility
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on our $
On July 13, 2026, we prepaid $
On September 2, 2026, we prepaid $
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Areion Facility
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on our $
We were in compliance with all financial covenants as of September 30, 2026.
Corsair Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2014-built VLGC, Corsair, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Corsair Japanese Financing”).
On May 28, 2026, we repaid the Corsair Japanese Financing’s then outstanding principal of $
Cresques Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2015-built VLGC, Cresques, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Cresques Japanese Financing”).
On June 30, 2026, we gave a notice of repurchase to the owners of Cresques and on September 25, 2026, we prepaid $
Cratis Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2015-built VLGC, Cratis, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Cratis Japanese Financing”).
Copernicus Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2015-built VLGC, Copernicus, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Copernicus Japanese Financing”).
Chaparral Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2015-built VLGC, Chaparral, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Chaparral Japanese Financing”).
Caravelle Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2016-built VLGC, Caravelle, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Caravelle Japanese Financing”).
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Cougar Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the refinancing of our 2016-built VLGC, Cougar, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Cougar Japanese Financing”).
On August 26, 2026, we repaid the Cougar Japanese Financing’s then outstanding principal of $
Captain Markos Dual-Fuel Japanese Financing
Refer to Note 10 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 for information on the financing of our 2023-built Dual-fuel VLGC, Captain Markos, pursuant to a memorandum of agreement and a bareboat charter agreement (the “Captain Markos Dual-Fuel Japanese Financing”).
Debt Obligations
The table below presents our debt obligations:
| September 30, 2026 | | March 31, 2026 |
| |||
2026 Debt Facility | $ | | $ | — | |||
2023 A&R Debt Facility | $ | — | $ | | |||
BALCAP Facility | $ | — | $ | | |||
Areion Facility | $ | | $ | | |||
Japanese Financings | |||||||
Corsair Japanese Financing | $ | — | $ | | |||
Cresques Japanese Financing | — | | |||||
Cratis Japanese Financing | | | |||||
Copernicus Japanese Financing | | | |||||
Chaparral Japanese Financing | | | |||||
Caravelle Japanese Financing | | | |||||
Cougar Japanese Financing | — | | |||||
Captain Markos Dual-Fuel Japanese Financing | | | |||||
Total Japanese Financings | $ | | $ | | |||
Total debt obligations | $ | | $ | | |||
Less: deferred financing fees | | | |||||
Debt obligations—net of deferred financing fees | $ | | $ | | |||
Presented as follows: | |||||||
Current portion of long-term debt |
| $ | | $ | | ||
Long-term debt—net of current portion and deferred financing fees |
| | | ||||
Total |
| $ | | $ | | ||
Deferred Financing Fees
The analysis and movement of deferred financing fees is presented in the table below:
| Financing | |||
costs | ||||
Balance, April 1, 2026 |
| $ | | |
Additions |
| | ||
Amortization | ( | |||
Balance, September 30, 2026 | $ | | ||
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10. Leases
Time charter-in contracts
We did not time charter-in any new vessels during the six months ended September 30, 2026. In June 2025, we time chartered-in a VLGC that was redelivered to its owners in August 2026. All of our time chartered-in VLGCs were deployed in the Helios Pool and earned net pool revenues of $
Charter hire expenses for the VLGCs time chartered in were as follows:
Three months ended | Six months ended | ||||||||||
September 30, 2026 | September 30, 2025 | September 30, 2026 | September 30, 2025 | ||||||||
Charter hire expenses | $ | $ | | $ | $ | | |||||
Office leases
We currently have operating leases for our offices in Stamford, Connecticut, USA; Copenhagen, Denmark; and Athens, Greece, which we determined to be operating leases and record the lease expense as part of general and administrative expenses in our unaudited interim condensed consolidated statements of operations. During the six months ended September 30, 2026 we extended the operating lease for our Athens office for an additional
Operating lease rent expense related to our office leases was as follows:
Three months ended | Six months ended | ||||||||||
September 30, 2026 | September 30, 2025 | September 30, 2026 | September 30, 2025 | ||||||||
Operating lease rent expense | $ | | $ | | $ | | $ | | |||
For our office leases and time charter-in agreements, the discount rate used ranged from
Our operating lease right-of-use asset and lease liabilities as of September 30, 2026 and March 31, 2026 were as follows:
Description | Location on Balance Sheet | September 30, 2026 | March 31, 2026 | |||||
Assets: | ||||||||
Non-current | ||||||||
Office leases | Operating lease right-of-use assets | $ | | $ | | |||
Time charter-in VLGCs | Operating lease right-of-use assets | $ | | $ | | |||
Liabilities: | ||||||||
Current | ||||||||
Office Leases | Current portion of long-term operating leases | $ | | $ | | |||
Time charter-in VLGCs | Current portion of long-term operating leases | $ | | $ | | |||
Long-term | ||||||||
Office Leases | Long-term operating leases | $ | | $ | | |||
Time charter-in VLGCs | Long-term operating leases | $ | | $ | | |||
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Maturities of operating lease liabilities as of September 30, 2026 were as follows:
Less than one year | $ | | |
One to three years | | ||
Three to five years | | ||
Total undiscounted lease payments | | ||
Less: imputed interest | ( | ||
Carrying value of operating lease liabilities | $ | |
Framework agreement
In September 2025, we entered into a framework agreement with MOL Energia Pte., our partner in the Helios Pool, to equally share the income or losses on BW Tokyo, one of our time chartered-in vessels. The net result reflected in this line item represents 50% of the vessel’s revenues for the period less 50% of the vessel’s charter hire-in expenses for the period and is reflected as “Profit sharing expenses” in the unaudited interim condensed consolidated statements of operations. The line items net pool revenues–related party and charter-hire expense reflect 100% of the revenues and expenses, respectively, related to this vessel.
11. Common Stock
On February 2, 2022, our Board of Directors authorized the repurchase of up to $
We made
12. Dividends
On
On
On
These were irregular dividends. All declarations of dividends are subject to the determination and discretion of our Board of Directors based on its consideration of various factors, including our results of operations, financial condition, level of indebtedness, anticipated capital requirements, contractual restrictions, restrictions in our debt agreements, restrictions under applicable law, our business prospects and other factors that our Board of Directors may deem relevant.
13. Stock-Based Compensation Plans
Our stock-based compensation expense is included within general and administrative expenses in the unaudited condensed consolidated statements of operations and was $
15
and will be recognized over a remaining weighted average life of
A summary of the activity of restricted shares and units awarded under our equity incentive plan as of September 30, 2026 and changes during the six months ended September 30, 2026, is as follows:
| | Weighted-Average |
| |||
Grant-Date | ||||||
Incentive Share/Unit Awards | Number of Shares/Units | Fair Value | ||||
Unvested as of April 1, 2026 | | $ | | |||
Granted | | | ||||
Vested | ( | | ||||
Unvested as of September 30, 2026 | | $ | | |||
The total fair value of restricted shares that vested during the six months ended September 30, 2026 totaled $
14. Revenues
Revenues comprise the following:
Three months ended | | Six months ended |
| |||||||||
September 30, 2026 | | September 30, 2025 | September 30, 2026 | | September 30, 2025 |
| ||||||
Net pool revenues—related party | $ | | $ | | $ | | $ | | ||||
Other revenues, net | |
| | |
| | ||||||
Total revenues | $ | |
| $ | | $ | |
| $ | | ||
Net pool revenues—related party depend upon the net results of the Helios Pool, and the available days and pool points for each vessel, including 100% of net pool revenues—related party for our chartered-in vessel that participates in the framework agreement described in Note 10 above. Refer to Note 2 to the consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026.
Other revenues, net primarily represent claim reimbursements and income from charterers relating to reimbursement of voyage expenses, such as costs for war risk insurance and security guards.
15. Financial Instruments and Fair Value Disclosures
Our principal financial assets consist of cash and cash equivalents, investment securities, amounts due from related parties, derivative instruments, trade accounts receivable, prepaid expenses and other current assets. Our principal financial liabilities consist of long-term debt, accounts payable, amounts due to related parties, and accrued liabilities.
| (a) | Concentration of credit risk: Financial instruments, which may subject us to significant concentrations of credit risk, consist principally of amounts due from our charterers, including the receivables from Helios Pool, and cash and cash equivalents. We limit our credit risk with amounts due from our charterers, including those through the Helios Pool, by performing ongoing credit evaluations of our charterers’ financial condition and generally do not require collateral from our charterers. We limit our credit risk with our cash and cash equivalents and restricted cash by placing it with highly-rated financial institutions and directly or indirectly highly liquid, short term highly rated debt obligations. |
| (b) | Interest rate risk: Two of our long-term bank loans are based on SOFR and hence we are exposed to movements thereto. We had entered into various interest rate swap agreements, with one such swap currently in effect as of September 30, 2026, in order to hedge a portion of our variable interest rate exposure related to the Term Loan under the 2026 Debt Facility. This interest rate swap carries a fixed interest rate of |
16
| The Areion Facility and the revolver under the 2026 Debt Facility are both unhedged. We have no exposure to floating rate movements on any of our other debt financings. |
| (c) | Fair value measurements: Interest rate swaps are stated at fair value, which is determined using a discounted cash flow approach based on market‑based SOFR swap yield rates. SOFR swap rates are observable at commonly quoted intervals for the full terms of the swaps and, therefore, are considered Level 2 items in accordance with the fair value hierarchy. The fair value of the interest rate swap agreements approximates the amount that we would have to pay or receive for the early termination of the agreements. |
The following table summarizes the location on the balance sheet of the financial assets and liabilities that are carried at fair value on a recurring basis, which comprise our financial derivatives, all of which are considered Level 2 items in accordance with the fair value hierarchy as of:
September 30, 2026 | March 31, 2026 |
| |||||||||||
Other non-current assets | Long-term liabilities | Other non-current assets | Long-term liabilities |
| |||||||||
Derivatives not designated as hedging instruments | | Derivative instruments | | Derivative instruments | | Derivative instruments | | Derivative instruments |
| ||||
Interest rate swap agreements | $ | | $ | $ | | $ | |||||||
The effect of derivative instruments within the unaudited interim condensed consolidated statements of operations for the periods presented is as follows:
Three months ended | |||||||||
Derivatives not designated as hedging instruments | | Location of gain/(loss) recognized | | September 30, 2026 | | September 30, 2025 |
| ||
Interest rate swaps—change in fair value |
| Unrealized gain/(loss) on derivatives |
| | ( | ||||
Interest rate swaps—realized gain |
| Realized gain on derivatives |
| | | ||||
Gain/(loss) on derivatives, net |
| $ | | $ | | ||||
| | Six months ended |
| ||||||
Derivatives not designated as hedging instruments | | Location of gain/(loss) recognized | | September 30, 2026 | | September 30, 2025 |
| ||
Interest rate swaps—change in fair value |
| Unrealized gain/(loss) on derivatives |
| $ | | $ | ( | ||
Interest rate swaps—realized gain |
| Realized gain on derivatives |
| | | ||||
Gain/(loss) on derivatives, net |
| $ | | $ | ( | ||||
As of September 30, 2026 and March 31, 2026, no fair value measurements for assets or liabilities under Level 1 or Level 3 were recognized in the consolidated balance sheets with the exception of Level 1 items cash and cash equivalents, restricted cash, and investment securities. We did not have any other assets or liabilities measured at fair value on a non-recurring basis during the three and six months ended September 30, 2026 and 2025.
| (d) | Book values and fair values of financial instruments: In addition to the derivatives that we are required to record at fair value on our balance sheet (see (c) above) we have investment securities that are recorded at fair value and included in other current assets in our balance sheet. We have other financial instruments that are carried at historical cost including trade accounts receivable, equity securities, at cost, amounts due from related parties, cash and cash equivalents, restricted cash, accounts payable, amounts due to related parties and accrued liabilities for which the historical carrying value approximates the fair value due to the short-term nature of these financial instruments. |
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The summary of gains and losses on our investment securities included in other gain/(loss), net as stated in our unaudited interim condensed consolidated statements of operations for the periods presented is as follows:
Three months ended | |||||||
| September 30, 2026 | | September 30, 2025 | ||||
Unrealized gain on investment securities | $ | | $ | | |||
Six months ended | |||||||
| September 30, 2026 | | September 30, 2025 |
| |||
Unrealized gain on investment securities | $ | | $ | | |||
We have long-term bank debt, the 2026 Debt Facility and Areion Facility, for which we believe the carrying value approximates fair value as the loans bear interest at variable interest rates based on SOFR, which is observable at commonly quoted intervals for the full terms of the loans, and hence are considered as a Level 2 item in accordance with the fair value hierarchy. We have long-term debt related to the Cratis Japanese Financing, Copernicus Japanese Financing, Chaparral Japanese Financing, Caravelle Japanese Financing, and Captain Markos Dual-Fuel Japanese Financing, (collectively, the “Japanese Financings”) that incur interest at a fixed rate. The Japanese Financings are considered Level 2 items in accordance with the fair value hierarchy and the fair value of each is based on a discounted cash flow analysis using current observable interest rates.
The following table summarizes the carrying value and estimated fair value of our fixed rate debt obligations as of:
September 30, 2026 | March 31, 2026 | |||||||||||||
| Carrying Value | | Fair Value | | Carrying Value | | Fair Value | |||||||
Corsair Japanese Financing | $ | — | $ | — | $ | | $ | | ||||||
Cresques Japanese Financing | — | — | | | ||||||||||
Cratis Japanese Financing | | | | | ||||||||||
Copernicus Japanese Financing | | | | | ||||||||||
Chaparral Japanese Financing | | | | | ||||||||||
Caravelle Japanese Financing | | | | | ||||||||||
Cougar Japanese Financing | — | — | | | ||||||||||
Captain Markos Dual-Fuel Japanese Financing | | | | | ||||||||||
BALCAP Facility | — | — | | | ||||||||||
16. Earnings Per Share (“EPS”)
Basic EPS represents net income attributable to common shareholders divided by the weighted average number of common shares outstanding during the measurement period. Our restricted stock shares include rights to receive dividends that are subject to the risk of forfeiture if service requirements are not satisfied, thus these shares are not considered participating securities and are excluded from the basic weighted-average shares outstanding calculation. Diluted EPS represent net income attributable to common shareholders divided by the weighted average number of common shares outstanding during the measurement period while also giving effect to all potentially dilutive common shares that were outstanding during the period as computed using the treasury stock method.
18
The calculations of basic and diluted EPS for the periods presented are as follows:
Three months ended | Six months ended | ||||||||||||
(In U.S. dollars except share data) | September 30, 2026 | September 30, 2025 | September 30, 2026 | September 30, 2025 | |||||||||
Numerator: | |||||||||||||
Net income | $ | | $ | | $ | | $ | | |||||
Denominator: | |||||||||||||
Basic weighted average number of common shares outstanding | | | | | |||||||||
Effect of dilutive restricted stock and restricted stock units | | | | | |||||||||
Diluted weighted average number of common shares outstanding | | | | | |||||||||
EPS: | |||||||||||||
Basic | $ | | $ | | $ | | $ | | |||||
Diluted | $ | | $ | | $ | | $ | | |||||
There were
17. Commitments and Contingencies
Commitments under Newbuilding Contracts
On June 22, 2026, we entered into a shipbuilding contract for a newbuilding dual-fuel Panamax VLGC with a cargo carrying capacity of
On August 31, 2026, we entered into
As of September 30, 2026, we had the following commitments related to the construction of the newbuildings:
September 30, 2026 | ||||
Less than one year | $ | | ||
One to three years | $ | | ||
Three to five years | $ | | ||
Total | $ | | ||
Operating Leases
As of September 30, 2026, we had the following commitments as a lessee under operating leases relating to our Denmark office:
September 30, 2026 | ||||
Less than one year | $ | | ||
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Other
From time to time, we expect to be subject to legal proceedings and claims in the ordinary course of business, principally personal injury and property casualty claims. Such claims, even if lacking in merit, could result in the expenditure of significant financial and managerial resources. We are not aware of any claim that is reasonably possible and should be disclosed or probable and for which a provision should be established in the unaudited interim condensed consolidated financial statements. Also, if applicable, we record undiscounted receivables for probable loss recoveries from insurance or other parties. We are not aware of any material claim that is reasonably possible and should be disclosed in the unaudited interim condensed consolidated financial statements.
18. Subsequent Events
Sale of Vessels
On October 2, 2026 and October 13, 2026, respectively, we completed the sales of our 2007-built VLGC Captain John NP and 2015-built VLGC Clermont, receiving total vessel sale proceeds, net of commission, of $
Repayment of Long-term Debt
On October 23, 2026, we repaid $
Dividend
On
20
ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion contains forward-looking statements that involve risks and uncertainties. As a result of many factors, such as those set forth under “Item 1A. Risk Factors” herein and in our Annual Report on Form 10-K for the year ended March 31, 2026, our actual results may differ materially from those anticipated in these forward-looking statements. Please also see the section entitled “Forward-Looking Statements” included in this quarterly report.
Overview
We are a Marshall Islands corporation headquartered in the United States and primarily focused on owning and operating VLGCs, each with a cargo-carrying capacity of greater than 80,000 cbm, in the LPG shipping industry. Our founding executives have managed vessels in the LPG shipping market since 2002. Our fleet currently consists of twenty-two VLGC carriers, including one Dual-fuel VLGC/AC, one Dual-fuel ECO VLGC; fifteen ECO VLGCs; five time chartered-in VLGCs, of which three are Panamax size dual-fuel VLGCs, one is a time-chartered-in ECO VLGC and one is a chartered-in modern VLGC. The twenty-two VLGCs in our fleet, including the five time chartered-in vessels, as of October 30, 2026, have an aggregate carrying capacity of approximately 1.9 million cbm and an average age of 9.1 years. On June 22, 2026, we entered into a shipbuilding contract for a newbuilding dual-fuel Panamax VLGC with a cargo carrying capacity of 90,000 cbm, which is expected to be delivered from HD Hyundai Heavy Industries Co. Ltd. in the third calendar quarter of 2029. On August 31, 2026, we entered into three shipbuilding contracts to build three dual-fuel Panamax VLGCs with a cargo carrying capacity of 90,000 cbm each, which are expected to be delivered from Hanwha Ocean Co., LTD. in the second, third, and fourth calendar quarters of 2030.
Currently, thirteen of our ECO VLGCs, including one of our time chartered-in ECO-VLGCs, and our VLGC/AC, are fitted with exhaust gas cleaning systems (commonly referred to as “scrubbers”) to reduce sulfur emissions. Vessels fitted with scrubbers allow us to reduce our emissions and to burn less refined fuel, which is frequently cheaper than more refined, lower sulfur grades. When the cost of more refined fuel exceeds that of less refined fuel, we are typically able to earn a higher TCE for spot voyages and to potentially contract time charters at higher rates compared to vessels without scrubbers. Additionally, one of the chartered-in dual-fuel Panamax size VLGCs is equipped with a shaft generator, which generates additional electricity that can be used to reduce fuel consumption and carbon emissions.
On April 1, 2015, Dorian and MOL Energia began operations of the Helios Pool, which entered into pool participation agreements for the purpose of establishing and operating, as charterer, under a variable rate time charter to be entered into with owners or disponent owners of VLGCs, a commercial pool of VLGCs whereby revenues and expenses are shared. The vessels entered into the Helios Pool may operate either in the spot market, pursuant to contracts of affreightment, or COAs, or on shorter-term time charters. As of October 30, 2026, all twenty-two of our VLGCs were employed in the Helios Pool, including our five time chartered-in vessels.
Our customers, either directly or through the Helios Pool, include or have included global energy companies such as Exxon Mobil Corp., Chevron Corp., China International United Petroleum & Chemicals Co., Ltd., Royal Dutch Shell plc, Equinor ASA, Total S.A., and Sunoco LP, commodity traders such as Glencore plc, Itochu Corporation, Bayegan Group, Gunvor Group, and the Vitol Group and importers such as E1 Corp., Indian Oil Corporation, SK Gas Co. Ltd., and Astomos Energy Corporation, or subsidiaries of the foregoing.
We continue to pursue a balanced chartering strategy by employing our vessels on a mix of multi-year time charters, some of which may include a profit-sharing component, shorter-term time charters, spot market voyages and COAs. See “Our Fleet” below for more information and the definition of Pool-TCO.
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Recent Developments
Sale of Vessels
On October 2, 2026 and October 13, 2026, respectively, we completed the sales of our 2007-built VLGC Captain John NP and 2015-built VLGC Clermont, receiving total vessel sale proceeds, net of commission, of $167.4 million. As of September 30, 2026, the carrying value of the two vessels totaled $78.8 million and the cumulative gain on sale of the vessels is expected to be approximately $88.6 million.
Repayment of Long-term Debt
On October 23, 2026, we repaid $16.0 million plus accrued interest related to the Clermont under the 2026 Debt Facility’s revolver.
Dividend
On October 30, 2026, we announced that our Board of Directors declared an irregular cash dividend of $1.25 per share of the Company’s common stock totaling $53.7 million. The dividend is payable on or about November 24, 2026 to all shareholders of record as of the close of business on November 9, 2026.
Our Fleet
The following table sets forth certain information regarding our fleet as of October 30, 2026:
Scrubber | Time | ||||||||||||||
Capacity | ECO | Equipped | Charter-Out |
| |||||||||||
(Cbm) | Shipyard | Year Built | Vessel(1) | and/or Dual-Fuel | Employment | Expiration(2) |
| ||||||||
Dorian VLGCs | |||||||||||||||
Comet(4) |
| 84,000 |
| Hyundai |
| 2014 |
| X |
| S |
| Pool-TCO(7) |
| Q2 2027 | |
Corvette(4) |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Cougar |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| — |
| Pool-TCO(7) |
| Q2 2029 | |
Concorde |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Continental |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool-TCO(7) |
| Q2 2030 | |
Constitution |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Commodore |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| — |
| Pool-TCO(7) |
| Q2 2027 | |
Cresques |
| 84,000 |
| Hanwha Ocean |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Cheyenne |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Cratis(5) |
| 84,000 |
| Hanwha Ocean |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Chaparral(5) |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| — |
| Pool-TCO(7) |
| Q3 2027 | |
Copernicus(5) |
| 84,000 |
| Hanwha Ocean |
| 2015 |
| X |
| S |
| Pool(6) |
| — | |
Commander(4) |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool-TCO(7) |
| Q1 2027 | |
Challenger |
| 84,000 |
| Hyundai |
| 2015 |
| X |
| S |
| Pool-TCO(7) | Q2 2030 | ||
Caravelle(5) |
| 84,000 |
| Hyundai |
| 2016 |
| X |
| S |
| Pool(6) |
| — | |
Captain Markos(5) |
| 84,000 |
| Kawasaki |
| 2023 |
| X |
| DF |
| Pool(6) |
| — | |
Areion(3) |
| 93,000 |
| Hanwha Ocean |
| 2026 |
| X |
| S/DF |
| Pool(6) |
| — | |
Total |
| 1,353,000 | |||||||||||||
Time chartered-in VLGCs | |||||||||||||||
Future Diamond(8) | 80,876 | Hyundai | 2020 | X | S | Pool(6) |
| — | |||||||
HLS Citrine(9) | 86,090 | Hyundai | 2023 | X | DF | Pool(6) |
| — | |||||||
HLS Diamond(9) | 86,090 | Hyundai | 2023 | X | DF | Pool(6) |
| — | |||||||
Cristobal(10) | 86,980 | Hyundai | 2023 | X | DF | Pool(6) |
| — | |||||||
BW Tokyo(11) | 83,271 | Mitsubishi | 2009 | — | — | Pool(6) |
| — |
| (1) | Represents vessels with very low revolutions per minute, long-stroke, electronically controlled engines, larger propellers, advanced hull design, and low friction paint. |
| (2) | Represents calendar year quarters. |
| (3) | Vessel is capable of carrying ammonia cargo. |
| (4) | Vessel is fitted to carry ammonia cargo. |
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| (5) | Operated pursuant to a bareboat chartering agreement. See Note 9 to our unaudited interim condensed consolidated financial statements. |
| (6) | “Pool” indicates that the vessel operates in the Helios Pool on a voyage charter with a third party and we receive a portion of the pool profits calculated according to a formula based on the vessel’s pro rata performance in the pool. |
| (7) | “Pool-TCO” indicates that the vessel is operated in the Helios Pool on a time charter out to a third party and we receive a portion of the pool profits calculated according to a formula based on the vessel’s pro rata performance in the pool. |
| (8) | Vessel has a Panamax beam and is currently time chartered-in to our fleet with an expiration during the first calendar quarter of 2027. |
| (9) | Vessel has a Panamax beam and is currently time chartered-in to our fleet with an expiration during the first calendar quarter of 2030 and purchase options beginning in year seven. |
| (10) | Vessel has a Panamax beam and shaft generator and is currently time chartered-in to our fleet with an expiration during the third calendar quarter of 2030 and purchase options beginning in year seven. |
| (11) | Vessel is currently time chartered-in to our fleet with an expiration during the second calendar quarter of 2028. Vessel operates under a framework agreement in which the vessel’s revenues and charter hire-in expenses are split equally with an unrelated third party. |
Results of Operations – For the three months ended September 30, 2026 as compared to the three months ended September 30, 2025
Revenues
The following table compares our revenues for the three months ended September 30:
Increase / | Percent | |||||||||||
| 2026 | | 2025 | | (Decrease) | | Change | |||||
Net pool revenues—related party |
| $ | 220,812,588 |
| $ | 120,627,086 |
| $ | 100,185,502 | 83.1 | % | |
Other revenues, net |
| 535,168 |
| 3,437,195 |
| (2,902,027) | (84.4) | % | ||||
Total |
| $ | 221,347,756 |
| $ | 124,064,281 |
| $ | 97,283,475 | 78.4 | % | |
Revenues, which represent net pool revenues—related party, and other revenues, net, were $221.3 million for the three months ended September 30, 2026, an increase of $97.2 million, or 78.4%, from $124.1 million for the three months ended September 30, 2025, primarily due to higher average TCE rates. TCE rates rose by $43,265 per available day from $53,725 for the three months ended September 30, 2025 to $96,990 for the three months ended September 30, 2026. The increase in TCE rates was primarily due to higher spot rates partially offset by higher bunker prices. The Baltic Exchange Liquid Petroleum Gas Index, an index published daily by the Baltic Exchange for the spot market rate for the benchmark Ras Tanura-Chiba route (expressed as U.S. dollars per metric ton), averaged $228.915 during the three months ended September 30, 2026 compared to an average of $81.320 during the three months ended September 30, 2025. The average price of very low sulfur fuel oil (expressed as U.S. dollars per metric ton) from Singapore and Fujairah increased from $505 during the three months ended September 30, 2025, to $826 during the three months ended September 30, 2026. Available days for our fleet slightly decreased from 2,290 for the three months ended September 30, 2025 to 2,272 for the three months ended September 30, 2026, mainly driven by a decrease in the number of vessels in our fleet, partially offset by a decrease in off-hire days due to drydocking.
Charter Hire Expenses
Charter hire expenses for the vessels chartered in from third parties were $18.2 million for the three months ended September 30, 2026 compared to $13.7 million for the three months ended September 30, 2025. The increase of $4.5 million, or 33.0%, was mainly driven by an increase in the average rate per time chartered-in day along with an increase in time chartered-in days from 461 for the three months ended September 30, 2025 to 498 for the three months ended September 30, 2026.
Vessel Operating Expenses
Vessel operating expenses were $18.3 million during the three months ended September 30, 2026, or $10,264 per vessel per calendar day, which is calculated by dividing vessel operating expenses by calendar days for the relevant time-
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period for the technically-managed vessels that were in our fleet and decreased by $2.4 million, or 11.6% from $20.7 million for the three months ended September 30, 2025. The decrease of $441 per vessel per calendar day, from $10,705 for the three months ended September 30, 2025 to $10,264 per vessel per calendar day for the three months ended September 30, 2026 was mainly due to a decrease of non-capitalizable drydock-related operating expenses. Excluding non-capitalizable drydock-related operating expenses, daily operating expenses increased by $799, or 8.4%, from $9,474 for the three months ended September 30, 2025 to $10,273 for the three months ended September 30, 2026, mainly as a result of increases in (i) crew wages and related costs and (ii) repairs and maintenance costs.
General and Administrative Expenses
General and administrative expenses were $14.0 million for the three months ended September 30, 2026, an increase of $2.0 million, or 16.8%, from $12.0 million for the three months ended September 30, 2025, driven by increases of (i) $0.8 million in bonuses, primarily resulting from the implementation of the Annual Cash Incentive Plan (the “ACIP”), which is recognized throughout the fiscal year, (ii) $0.8 million in stock-based compensation expense, (iii) $0.3 million in employee-related costs and benefits, and (iv) $0.1 million of other general and administrative expenses for the period ended September 30, 2026 when compared to the period ended September 30, 2025.
Interest and Finance Costs
Interest and finance costs amounted to $8.6 million for the three months ended September 30, 2026, an increase of $1.0 million, or 13.1%, from $7.6 million for the three months ended September 30, 2025. The increase of $1.0 million during this period was mainly attributable to (i) increases of $1.7 million in amortization of deferred financing fees and $0.2 million in loan expenses, both driven by the prepayment of debt, and (ii) a $0.6 million decrease in capitalized interest. These changes were partially offset by a reduction of $1.5 million in interest on our long-term debt resulting from reduced average indebtedness, excluding deferred financing fees, from $539.9 million for the three months ended September 30, 2025, to $486.2 million for the three months ended September 30, 2026.
Gain on Disposal of Vessels
Gain on disposal of vessels amounted to $63.6 million for the three months ended September 30, 2026 and was attributable to the sale of 2014-built VLGC Corsair and 2015-built VLGC Constellation. There was no gain on disposal of vessels for the three months ended September 30, 2025.
Interest Income
Interest income amounted to $4.5 million for the three months ended September 30, 2026, compared to $3.0 million for the three months ended September 30, 2025. The increase of $1.5 million is mainly attributable to an increase in average cash balances for the three months ended September 30, 2026 when compared to the three months ended September 30, 2025.
Unrealized Gain/(Loss) on Derivatives
Unrealized gain on derivatives amounted to $1.7 million for the three months ended September 30, 2026, compared to a loss of $0.4 million for the three months ended September 30, 2025. The $2.1 million difference is primarily attributable to changes in forward SOFR yield curves and changes in notional amounts.
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Results of Operations – For the six months ended September 30, 2026 as compared to the six months ended September 30, 2025
Revenues
The following table compares our revenues for the six months ended September 30:
Increase / | Percent | |||||||||||
| 2026 | | 2025 | | (Decrease) | | Change | |||||
Net pool revenues—related party |
| $ | 408,616,703 |
| $ | 204,469,838 |
| $ | 204,146,865 | 99.8 | % | |
Other revenues, net |
| 615,901 |
| 3,806,409 |
| (3,190,508) | (83.8) | % | ||||
Total |
| $ | 409,232,604 |
| $ | 208,276,247 |
| $ | 200,956,357 | 96.5 | % | |
Revenues, which represent net pool revenues—related party, and other revenues, net, were $409.2 million for the six months ended September 30, 2026, an increase of $200.9 million, or 96.5%, from $208.3 million for the six months ended September 30, 2025, primarily due to higher average TCE rates and increased available days for our fleet. TCE rates rose by $38,969 per available day from $47,052 for the six months ended September 30, 2025 to $86,021 for the six months ended September 30, 2026, primarily due to higher spot rates, partially offset by higher bunker prices. The Baltic Exchange Liquid Petroleum Gas Index, an index published daily by the Baltic Exchange for the spot market rate for the benchmark Ras Tanura-Chiba route (expressed as U.S. dollars per metric ton), averaged $216.244 during the six months ended September 30, 2026 compared to an average of $72.693 during the six months ended September 30, 2025. The average price of very low sulfur fuel oil (expressed as U.S. dollars per metric ton) from Singapore and Fujairah increased from $508 during the six months ended September 30, 2025, to $842 during the six months ended September 30, 2026. Available days for our fleet increased from 4,376 the six months ended September 30, 2025 to 4,741 for the six months ended September 30, 2026, mainly driven by fewer off-hire days due to drydocking.
Charter Hire Expenses
Charter hire expenses for the vessels chartered in from third parties were $40.9 million for the six months ended September 30, 2026 compared to $24.4 million for the six months ended September 30, 2025. The increase of $16.5 million, or 67.2%, was mainly driven by an increase in the average rate per time chartered-in day along with an increase in time chartered-in days from 831 for the six months ended September 30, 2025 to 1,044 for the six months ended September 30, 2026.
Vessel Operating Expenses
Vessel operating expenses were $38.4 million during the six months ended September 30, 2026, or $10,312 per vessel per calendar day, which is calculated by dividing vessel operating expenses by calendar days for the relevant time-period for the technically-managed vessels that were in our fleet and decreased by $4.2 million, or 9.8% from $42.6 million for the six months ended September 30, 2025. The decrease of $772 per vessel per calendar day, from $11,084 for the six months ended September 30, 2025 to $10,312 per vessel per calendar day for the six months ended September 30, 2026 was primarily the result of a decrease of $1,273 per vessel per calendar day of non-capitalizable drydock-related operating expenses. Excluding non-capitalizable drydock-related operating expenses, daily operating expenses increased by $501 from $9,789 for the six months ended September 30, 2025 to $10,290 for the six months ended September 30, 2026, mainly as a result of increases in (i) repairs and maintenance costs and (ii) crew wages and related costs.
General and Administrative Expenses
General and administrative expenses were $27.5 million for the six months ended September 30, 2026, a decrease of $1.4 million, or 4.8%, from $28.9 million for the six months ended September 30, 2025. The decrease was primarily driven by a decrease of $3.7 million in cash bonuses, as a result in the timing of the recognition of discretionary cash bonuses in the six months ended September 30, 2025 compared to the six months ended September 30, 2026 and the implementation of the ACIP, which is recognized throughout the fiscal year. This was partially offset by increases of $1.1 million in stock-based compensation, $0.7 million in employee-related costs and benefits, and $0.5 million in other general and administrative expenses.
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Interest and Finance Costs
Interest and finance costs amounted to $17.3 million for the six months ended September 30, 2026, an increase of $2.0 million, or 12.9%, from $15.3 million for the six months ended September 30, 2025. The increase of $2.0 million during this period was mainly attributable to (i) increases of $2.0 million in amortization of deferred financing fees and $0.9 million in loan expenses, both driven by the prepayment of debt, and (ii) a $1.1 million decrease in capitalized interest. These changes were partially offset by a reduction of $2.0 million in interest on our long-term debt resulting from a decrease in average indebtedness, excluding deferred financing fees, from $546.3 million for the six months ended September 30, 2025 to $511.9 million for the six months ended September 30, 2026.
Gain on Disposal of Vessels
Gain on disposal of vessels amounted to $93.7 million for the six months ended September 30, 2026 and was attributable to the sale of the 2014-built VLGC Corsair and 2015-built VLGCs Cobra and Constellation. There was no gain on disposal of vessels for the six months ended September 30, 2025.
Interest Income
Interest income amounted to $7.5 million for the six months ended September 30, 2026, compared to $5.8 million for the six months ended September 30, 2025. The increase of $1.7 million is mainly attributable to higher average cash balances for the six months ended September 30, 2026 when compared to the six months ended September 30, 2025.
Unrealized Gain/(Loss) on Derivatives
Unrealized gain on derivatives amounted to $2.7 million for the six months ended September 30, 2026, compared to a $1.6 million loss for the six months ended September 30, 2025. The $4.3 million difference is primarily attributable to changes in forward SOFR yield curves and changes in notional amounts.
Operating Statistics and Reconciliation of GAAP to non-GAAP Measures and Metrics
To supplement our financial statements presented in accordance with U.S. GAAP, we present certain operating statistics and non-GAAP measures and metrics to assist in the evaluation of our business performance. These non-GAAP measures and metrics include Adjusted earnings before interest, taxes, depreciation and amortization (“Adjusted EBITDA”) and time charter equivalent rate. These non-GAAP measures and metrics may not be comparable to similarly titled measures and metrics used by other companies and should not be considered in isolation or as a substitute for net income and revenues, which are the most directly comparable measures of performance prepared in accordance with U.S. GAAP.
| |||||||||||||
| |||||||||||||
Three months ended | Six months ended | ||||||||||||
(in U.S. dollars, except fleet data) | September 30, 2026 | | September 30, 2025 | | September 30, 2026 | | September 30, 2025 |
| |||||
Financial Data | |||||||||||||
Adjusted EBITDA(1) | $ | 242,040,292 | $ | 85,718,472 | $ | 407,470,858 | $ | 124,296,808 | |||||
Fleet Data | |||||||||||||
Calendar days(2) |
| 1,781 |
| 1,932 |
| 3,726 |
| 3,843 | |||||
Time chartered-in days(3) |
| 498 |
| 461 |
| 1,044 |
| 831 | |||||
Available days(4) |
| 2,272 |
| 2,290 |
| 4,741 |
| 4,376 | |||||
Average Daily Results | |||||||||||||
Time charter equivalent rate(5) | $ | 96,990 | $ | 53,725 | $ | 86,021 | $ | 47,052 | |||||
Daily vessel operating expenses (6) | $ | 10,264 | $ | 10,705 | $ | 10,312 | $ | 11,084 | |||||
| (1) | Adjusted EBITDA is an unaudited non-GAAP financial measure and represents net income/(loss) before interest and finance costs, unrealized (gain)/loss on derivatives, realized (gain)/loss on interest rate swaps, stock-based compensation expense, impairment, and depreciation and amortization and is used as a supplemental measure by management to assess our financial and operating performance. We believe that Adjusted EBITDA assists our management and investors by increasing the comparability of our performance from period to period and management makes business and resource-allocation decisions |
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| based on such comparisons. This increased comparability is achieved by excluding the potentially disparate effects between periods of derivatives, interest and finance costs, stock-based compensation expense, impairment, and depreciation and amortization expense, which items are affected by various and possibly changing financing methods, capital structure and historical cost basis and which items may significantly affect net income/(loss) between periods. We believe that including Adjusted EBITDA as a financial and operating measure benefits investors in selecting between investing in us and other investment alternatives. |
Adjusted EBITDA has certain limitations in use and should not be considered an alternative to net income/(loss), operating income, cash flow from operating activities or any other measure of financial performance presented in accordance with U.S. GAAP. Adjusted EBITDA excludes some, but not all, items that affect net income/(loss). Adjusted EBITDA as presented below may not be computed consistently with similarly titled measures of other companies and, therefore, might not be comparable with other companies.
The following table sets forth a reconciliation of net income to Adjusted EBITDA (unaudited) for the periods presented:
Three months ended | Six months ended | ||||||||||||
(in U.S. dollars) | September 30, 2026 | September 30, 2025 | September 30, 2026 | September 30, 2025 | |||||||||
Net income | $ | 213,856,959 | $ | 55,382,036 | $ | 352,141,981 | $ | 65,464,137 | |||||
Interest and finance costs |
| 8,590,975 |
| 7,599,108 |
| 17,286,308 |
| 15,313,905 | |||||
Unrealized (gain) / loss on derivatives |
| (1,721,535) |
| 381,658 |
| (2,654,500) |
| 1,565,499 | |||||
Realized gain on interest rate swaps |
| (293,860) |
| (528,095) | (580,370) | (1,067,524) | |||||||
Stock-based compensation expense |
| 5,791,609 |
| 4,961,896 |
| 7,812,228 |
| 6,719,775 | |||||
Depreciation and amortization | 15,816,144 | 17,921,869 | 33,465,211 | 36,301,016 | |||||||||
Adjusted EBITDA | $ | 242,040,292 | $ | 85,718,472 | $ | 407,470,858 | $ | 124,296,808 | |||||
| (2) | We define calendar days as the total number of days in a period during which each vessel in our fleet was owned or operated pursuant to a bareboat charter. Calendar days are an indicator of the size of the fleet over a period and affect both the amount of revenues and the amount of vessel operating expenses that are recorded during that period. |
| (3) | We define time chartered-in days as the aggregate number of days in a period during which we time chartered-in vessels from third parties. Time chartered-in days are an indicator of the size of the fleet over a period and affect both the amount of revenues and the amount of charter hire expenses that are recorded during that period. Time chartered-in days include 100% of time chartered-in days for our chartered-in vessel that is part of a framework agreement in which the vessel’s revenues and charter hire-in expenses are split equally with an unrelated third party. |
| (4) | We define available days as the sum of calendar days and time chartered-in days (collectively representing our commercially-managed vessels) less aggregate off hire days associated with both unscheduled and scheduled maintenance, which include major repairs, drydockings, vessel upgrades or special or intermediate surveys. We use available days to measure the aggregate number of days in a period that our vessels should be capable of generating revenues. Available days include 100% of available days for our chartered-in vessel that is part of a framework agreement in which the vessel’s revenues and charter hire-in expenses are split equally with an unrelated third party. |
| (5) | Time charter equivalent rate, or TCE rate, is a non-U.S. GAAP metric of the average daily revenue performance of a vessel. TCE rate is a shipping industry performance metric used primarily to compare period-to-period changes in a shipping company’s performance despite changes in the mix of charter types (such as time charters, voyage charters) under which the vessels may be employed between the periods and is a factor in management’s business decisions and is useful to investors in understanding our underlying performance and business trends. Our method of calculating TCE rate is to divide total revenues (including net pool revenues-related party which is calculated as Dorian’s portion of the net of a) Helios Pool gross revenues b) less voyage expenses of all the pool vessels and c) less the general and administrative expenses of the pool) less voyage expenses by available days for the relevant time period, which may not be calculated the same by other companies. |
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The following table sets forth a reconciliation of revenues to TCE rate (unaudited) for the periods presented:
(in U.S. dollars, except available days) | Three months ended | Six months ended | |||||||||||
Numerator: | September 30, 2026 | | September 30, 2025 | | September 30, 2026 | | September 30, 2025 |
| |||||
Revenues | $ | 221,347,756 | $ | 124,064,281 | $ | 409,232,604 | $ | 208,276,247 | |||||
Voyage expenses | (986,096) | (1,033,917) | (1,408,717) | (2,376,673) | |||||||||
Time charter equivalent | $ | 220,361,660 | $ | 123,030,364 | $ | 407,823,887 | $ | 205,899,574 | |||||
Pool adjustment* | — | — | (340,566) | 895,366 | |||||||||
Time charter equivalent excluding pool adjustment* | $ | 220,361,660 | $ | 123,030,364 | $ | 407,483,321 | $ | 206,794,940 | |||||
Denominator: | |||||||||||||
Available days | 2,272 | 2,290 | 4,741 | 4,376 | |||||||||
TCE rate: | |||||||||||||
Time charter equivalent rate | $ | 96,990 | $ | 53,725 | $ | 86,021 | $ | 47,052 | |||||
TCE rate excluding pool adjustment* | $ | 96,990 | $ | 53,725 | $ | 85,949 | $ | 47,257 | |||||
* Adjusted for the effects of reallocations of pool profits in accordance with the pool participation agreements primarily resulting from the actual speed and consumption performance of the vessels operating in the Helios Pool exceeding the originally estimated speed and consumption levels.
| (6) | Daily vessel operating expenses are calculated by dividing vessel operating expenses by calendar days for the relevant time period. |
Liquidity and Capital Resources
Our business is capital intensive, and our future success depends on our ability to maintain a high-quality fleet. As of September 30, 2026, we had cash and cash equivalents of $578.8 million and restricted cash of $0.1 million.
Our primary source of capital during the six months ended September 30, 2026 were (i) $247.2 million from proceeds, net of commission and fees, of the sales of the 2014-built VLGC Corsair and the 2015-built VLGCs Cobra and Constellation, (ii) $235.4 million in cash generated from operations, and (iii) cash proceeds of $229.3 million from drawdown of the 2026 Debt Facility. As of September 30, 2026, the outstanding balance of our long-term debt, net of deferred financing fees of $7.4 million, was $477.3 million including $43.7 million of principal on our long-term debt scheduled to be repaid within the next twelve months.
Operating expenses, including expenses to maintain the quality of our vessels in order to comply with international shipping standards and environmental laws and regulations, the funding of working capital requirements, long-term debt repayments, financing costs, commitments, as described in Note 17 to our unaudited condensed consolidated financial statements, for the building of VLGCs, and drydocking represent our short-term, medium-term and long-term liquidity needs as of September 30, 2026. We anticipate satisfying our liquidity needs for at least the next twelve months with cash on hand, cash from operations, and, if needed, drawdowns on the revolving credit facility available under the 2026 Debt Facility. We may also seek additional liquidity through alternative sources of debt financings and/or through equity financings by way of private or public offerings. However, if these sources are insufficient to satisfy our short-term liquidity needs, or to satisfy our future medium-term or long-term liquidity needs, we may need to seek alternative sources of financing and/or modifications of our existing credit facility and financing arrangements. There is no assurance that we will be able to obtain any such financing or modifications to our existing credit facility and financing arrangements on terms acceptable to us, or at all.
On February 2, 2022, our Board of Directors authorized the repurchase of up to $100.0 million of our common shares. Under this authorization, when in force, purchases were and may be made at our discretion in the form of open market repurchase programs, privately negotiated transactions, accelerated share repurchase programs or a combination of these methods. The actual amount and timing of share repurchases are subject to capital availability, our determination that share repurchases are in the best interests of our shareholders, and market conditions. As of September 30, 2026, our
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total purchases under the 2022 Common Share Repurchase Authority totaled 355,511 shares for an aggregate consideration of $7.9 million. We are not obligated to make any common share repurchases.
On May 7, 2026, we announced that our Board of Directors declared an irregular cash dividend of $1.00 per common share to all shareholders of record as of the close of business on May 18, 2026, totaling $42.8 million. We paid $42.6 million on May 28, 2026, with the remaining $0.2 million deferred until certain shares of restricted stock vest.
On July 16, 2026, we announced that our Board of Directors has declared an irregular cash dividend of $1.00 per common share totaling $42.8 million. We paid $42.7 million on August 12, 2026, with the remaining $0.1 million deferred until certain shares of restricted stock vest.
On August 5, 2026, we paid $0.7 million of dividends that had been deferred until the vesting of certain restricted stock.
On October 30, 2026, we announced that our Board of Directors declared an irregular cash dividend of $1.25 per share of the Company’s common stock totaling $53.7 million. The dividend is payable on or about November 24, 2026 to all shareholders of record as of the close of business on November 9, 2026.
These were irregular dividends. All declarations of dividends are subject to the determination and discretion of the Company’s Board of Directors based on its consideration of various factors, including the Company’s results of operations, financial condition, level of indebtedness, anticipated capital requirements, contractual restrictions, restrictions in its debt agreements, restrictions under applicable law, its business prospects and other factors that the Company’s Board of Directors may deem relevant. Our dividend policy will also impact our future liquidity position. Marshall Islands law generally prohibits the payment of dividends other than from surplus or while a company is insolvent or would be rendered insolvent by the payment of such a dividend.
Since March 31, 2026, we prepaid the following long-term debt:
| ● | April 20, 2026 - $16.5 million of the 2023 A&R Debt Facility, the tranche related to the 2015-built VLGC Cobra; |
| ● | May 12, 2026 and May 28, 2026 – two payments in the aggregate of $24.2 million of the Corsair Japanese Financing’s then outstanding principal; |
| ● | July 13, 2026 - $23.9 million of the BALCAP Facility’s then outstanding principal related to the 2015-built VLGC Constellation; |
| ● | August 26, 2026 - Cougar Japanese Financing’s then outstanding principal of $34.7 million; |
| ● | September 2, 2026 - $144.0 million of 2023 A&R Debt Facility’s then outstanding principal, $23.2 million of the BALCAP Facility’s then outstanding principal related to the 2015-built VLGC Commander; |
| ● | September 25, 2026 - prepaid Cresques Japanese Financing’s then outstanding principal $21.3 million of the then outstanding principal, primarily by using proceeds from the 2026 Debt Facility, |
| ● | October 23, 2026 - repaid $16.0 million plus accrued interest related to the Clermont under the 2026 Debt Facility’s revolver. |
Since March 31, 2026, we completed the following vessel sales:
| ● | May 6, 2026 - completed the sale of our 2015-built VLGC Cobra and received proceeds (including the purchase of bunkers, lubricants, etc.) net of commission and fees of $81.9 million; |
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| ● | July 8, 2026 - completed the sale of our 2014-built VLGC Corsair and received proceeds net of commission of $80.8 million; |
| ● | July 27, 2026 - completed the sale of our 2015-built VLGC Constellation and received proceeds net of commission of $85.6 million; |
| ● | October 2, 2026 - completed the sale of our 2007-built VLGC Captain John NP and received proceeds net of commission of $77.0 million; and |
| ● | October 13, 2026 - completed the sale of our 2015-built VLGC Clermont and received proceeds net of commission of $90.4 million. |
As part of our growth strategy, we will continue to consider strategic opportunities, including the acquisition or charter-in of additional vessels. We may choose to pursue such opportunities through internal growth, joint ventures, business acquisitions, or other transactions. We expect to finance the purchase price of any future acquisitions either through internally generated funds, public or private debt financings, public or private issuances of additional equity securities or a combination of these forms of financing.
Cash Flows
The following table summarizes our cash and cash equivalents provided by/(used in) operating, financing and investing activities for the six months ended September 30:
September 30, 2026 | September 30, 2025 | |||||
Net cash provided by operating activities | $ | 235,357,675 | $ | 47,220,965 | ||
Net cash provided by/(used in) investing activities |
| 189,920,322 |
| (16,312,969) | ||
Net cash used in financing activities |
| (173,840,866) |
| (79,736,207) | ||
Net increase/(decrease) in cash, cash equivalents, and restricted cash | $ | 251,364,591 | $ | (48,569,427) | ||
Operating Cash Flows. Net cash provided by operating activities for the six months ended September 30, 2026 was $235.4 million, compared to $47.2 million for the six months ended September 30, 2025. The $188.2 million increase in cash generated from operations was primarily driven by increased cash flows from operating profits (refer to Results of Operations – For the six months ended September 30, 2026 as compared to the six months ended September 30, 2025, for drivers of changes in revenues and expenses for the applicable periods), partially offset by changes in working capital, mainly from amounts due from the Helios Pool as distributions from the Helios Pool are impacted by the timing of the completion of voyages, spot market rates and bunker prices.
Net cash flow from operating activities depends upon our overall profitability, spot market rates for vessels employed on voyage charters and in the Helios Pool, charter rates agreed to for time charters, the timing and amount of payments for drydocking expenditures and unscheduled repairs and maintenance, fluctuations in working capital balances and bunker costs.
Investing Cash Flows. Net cash provided by investing activities was $189.9 million for the six months ended September 30, 2026 compared with net cash used in investing activities of $16.3 million for the six months ended September 30, 2025. For the six months ended September 30, 2026, net cash provided by investing activities was comprised of $247.2 million from proceeds, net of commission and fees, of the sales of the 2014-built VLGC Corsair and the 2015-built VLGCs Cobra and Constellation, partially offset by $57.3 million of payments for vessels under construction and other capital expenditures for vessels.
For the six months ended September 30, 2025, net cash used in investing activities was comprised of $16.3 million of payments for vessel under construction and other capital expenditures for vessels.
Financing Cash Flows. Net cash used in financing activities was $173.8 million for the six months ended September 30, 2026, compared with net cash used in financing activities of $79.7 million for the six months ended September 30, 2025. For the six months ended September 30, 2026, net cash used in financing activities consisted of (i)
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repayments of long-term debt of $310.3 million, (ii) dividend payments of $86.0 million, (iii) financing costs paid of $4.4 million, and (iv) repurchases of common stock of $2.4 million; partially offset by $229.3 million of proceeds from the 2026 Debt Facility.
For the six months ended September 30, 2025 net cash used in financing activities consisted of (i) dividend payments of $47.6 million; (ii) repayments of long-term debt of $27.4 million; and (iii) payments to repurchase common stock of $4.7 million.
Capital Expenditures. LPG maritime transportation is a capital‑intensive business, requiring significant investment to maintain an efficient fleet and to stay in regulatory compliance.
We are generally required to complete a special survey for a vessel once every five years. Drydocking of vessels occurs every five years unless an extension is granted by the classification society to seven and one-half years and the vessel is not older than 15 years of age. Intermediate surveys are performed every two and one-half years after every special survey. Drydocking each vessel takes approximately 20 to 35 days. We spend significant amounts for scheduled drydocking (including the cost of classification society surveys) for each of our vessels.
As our vessels age and our fleet expands, our drydocking expenses will increase. We estimate the current cash outlay for a VLGC special survey to be approximately $2.1 million to $2.3 million per vessel (excluding any capital improvements, such as scrubbers, ballast water management systems, energy saving devices, and performance improvement additions to the vessel that may be made during such drydockings) and the cost of an intermediate survey to be between $150,000 and $250,000 per vessel. Ongoing costs for compliance with environmental regulations are primarily included as part of our drydocking and classification society survey costs. In order to comply with current emissions regulations, we have installed scrubbers on thirteen of our vessels and have one chartered-in scrubber-equipped vessel, which allows us to burn heavy fuel oil. Our other non-dual fuel vessels currently consume compliant fuels on board (0.5% sulfur), which are readily available globally, but at a significantly higher cost. We also have one dual-fuel ECO VLGC/AC, one dual-fuel ECO VLGC and three chartered-in dual-fuel vessels that have the capability to burn LPG as fuel, which we believe provides an economic benefit over traditional fuel. Please see “Item 1A. Risk Factors—Risks Relating to Our Company— We may incur increasing costs for the drydocking, maintenance or replacement of our vessels as they age, and, as our vessels age, the risks associated with older vessels could adversely affect our ability to obtain profitable charters” in our Annual Report on Form 10-K for the year ended March 31, 2026.
On June 22, 2026, we entered into a shipbuilding contract for a newbuilding dual-fuel Panamax VLGC with a cargo carrying capacity of 90,000 cbm, which is expected to be delivered from HD Hyundai Heavy Industries Co., Ltd. in the third calendar quarter of 2029. On August 31, 2026, we entered into three shipbuilding contracts to build three dual-fuel Panamax VLGCs with a cargo carrying capacity of 90,000 cbm each, which are expected to be delivered from Hanwha Ocean Co., LTD. in the second, third and fourth calendar quarters of 2030. As of September 30, 2026 we had approximately $396.6 million of commitments under the newbuildings contracts outstanding that we expect to settle upon certain milestones during the construction of the vessels.
Debt Obligations
For information relating to our secured term loan facilities and Japanese financing arrangements, refer to Note 10 to our consolidated financial statements included in our Annual Report on Form 10-K for the year ended March 31, 2026 and Note 9 to our unaudited interim condensed consolidated financial statements for September 30, 2026 included herein.
Off-Balance Sheet Arrangements
We currently do not have any off‑balance sheet arrangements.
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Critical Accounting Estimates
The following is an update to the Critical Accounting Estimates set forth in “Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations” included in our Annual Report on Form 10-K for the year ended March 31, 2026.
Impairment of long-lived assets. We review our vessels for impairment when events or circumstances indicate the carrying amount of the asset may not be recoverable. In addition, we compare independent appraisals to our carrying value for indicators of impairment to our vessels. When such indicators are present, an asset is tested for recoverability by comparing the estimate of future undiscounted net operating cash flows expected to be generated by the use of the asset over its remaining useful life and its eventual disposition to its carrying amount. An impairment charge is recognized if the carrying value is in excess of the estimated future undiscounted net operating cash flows. The impairment loss is measured based on the excess of the carrying amount over the fair market value of the asset. The new lower cost basis would result in a lower annual depreciation than before the impairment.
Our estimates of fair market value assume that our vessels are all in good and seaworthy condition without need for repair and if inspected would be certified in class without notations of any kind. Our estimates are based on information available from various industry sources, including:
| ● | reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values; |
| ● | news and industry reports of similar vessel sales; |
| ● | approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated; |
| ● | offers that we may have received from potential purchasers of our vessels; and |
| ● | vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers. |
As we obtain information from various industry and other sources, our estimates of fair market value are inherently uncertain. In addition, vessel values are highly volatile; as such, our estimates may not be indicative of the current or future fair market value of our vessels or prices that we could achieve if we were to sell them.
As of September 30, 2026, independent appraisals of our technically-managed VLGCs in our fleet had no indications of impairment on any of our VLGCs in accordance with ASC 360 Property, Plant, and Equipment. No impairment charges were recognized for the six months ended September 30, 2026 and 2025.
Recent Accounting Pronouncements
Refer to Note 2 to our unaudited interim condensed consolidated financial statements included herein for a discussion of recent accounting pronouncements.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
For additional discussion of our exposure to market risk, refer to “Item 7A. Quantitative and Qualitative Disclosures About Market Risk” included in our Annual Report on Form 10-K for the year ended March 31, 2026.
Interest Rate Risk
The LPG shipping industry is capital intensive, requiring significant amounts of investment. Much of this investment is provided in the form of long-term debt. Our 2026 Debt Facility and Areion Facility, as described in Note 9 to our unaudited interim condensed consolidated financial statements, currently contains interest rates that fluctuate with SOFR. We have one outstanding interest rate swap agreement. We have hedged $124.0 million of amortizing principal as of September 30, 2026 and thus increasing interest rates could adversely impact our future earnings due to additional interest expense on the unhedged portion of that debt. For the 12 months following September 30, 2026, a hypothetical increase or decrease of 20 basis points in the underlying SOFR rates would result in an increase or decrease of our interest expense on all of our non-hedged interest-bearing debt by $0.3 million assuming all other variables are held constant.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
An evaluation was performed under the supervision and with the participation of our management, including our Chief Executive Officer, or CEO, and Chief Financial Officer, or CFO, of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act) as of September 30, 2026. Based on that evaluation, our CEO and CFO concluded that our disclosure controls and procedures are effective to ensure that information required to be disclosed by us in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and is accumulated and communicated to our management, including our CEO and CFO, to allow timely decisions regarding required disclosure. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those internal control systems determined to be effective can provide only a level of reasonable assurance with respect to financial statement preparation and presentation.
Changes in Internal Control Over Financial Reporting
There have been no changes in our internal control over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) during the six months ended September 30, 2026 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II — OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time, we expect to be subject to legal proceedings and claims in the ordinary course of business, principally personal injury and property casualty claims. Such claims, even if lacking in merit, could result in the expenditure of significant financial and managerial resources. We are not aware of any claim that is reasonably possible and should be disclosed or probable and for which a provision should be established in the accompanying unaudited interim condensed consolidated financial statements.
ITEM 1A. RISK FACTORS
Our operations and financial results are subject to various risks and uncertainties that could adversely affect our business, financial condition, results of operations, cash flows, and the trading price of our common shares. The following is an update to the risk factors that may cause actual results to differ materially from those anticipated as set forth in “Item 1A. Risk Factors” of our Annual Report on Form 10-K for the year ended March 31, 2026.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Issuer Purchases of Equity Securities
The table below sets forth information regarding our purchases of our common shares during the quarterly period ended September 30, 2026:
Total | ||||||||||
Number of | ||||||||||
Shares | ||||||||||
Purchased as | ||||||||||
Part of | Maximum Dollar | |||||||||
Total | Publicly | Value of Shares | ||||||||
Number | Average | Announced | that May Yet Be | |||||||
of Shares | Price Paid | Plans or | Purchased Under the | |||||||
Period | Purchased | Per Share | Programs | Plan or Programs | ||||||
July 1 to July 31, 2026 | — | $ | — | — | $ | 92,112,945 | ||||
August 1 to August 31, 2026 | 56,534 | 43.05 | — | 92,112,945 | ||||||
September 1 to September 30, 2026 | — | — | — | 92,112,945 | ||||||
Total | 56,534 | $ | 43.05 | — | $ | 92,112,945 | ||||
Purchases of our common shares during the quarterly period ended September 30, 2026 represent common shares reacquired in satisfaction of tax withholding obligations upon vesting of employee restricted equity awards.
ITEM 5. OTHER INFORMATION
| (a) | None. |
| (b) | None. |
| (c) | During the three months ended September 30, 2026, and as of September 30, 2026, |
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ITEM 6. EXHIBITS
See accompanying Exhibit Index for a list of exhibits filed or furnished with this report.
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EXHIBIT INDEX
Exhibit Number | Description | |
10.1 | ||
| ||
31.1 | ||
31.2 | ||
32.1† | ||
32.2† | ||
101.INS | Inline XBRL Document | |
101.SCH | Inline XBRL Taxonomy Extension Schema | |
101.CAL | Inline XBRL Taxonomy Extension Schema Calculation Linkbase | |
101.DEF | Inline XBRL Taxonomy Extension Schema Definition Linkbase | |
101.LAB | Inline XBRL Taxonomy Extension Schema Label Linkbase | |
101.PRE | Inline XBRL Taxonomy Extension Schema Presentation Linkbase | |
104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in exhibit 101) | |
† | This certification is deemed not filed for purposes of Section 18 of the Exchange Act or otherwise subject to the liability of that section, nor shall it be deemed incorporated by reference into any filing under the Securities Act of 1933, as amended. |
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
Dorian LPG Ltd. | |
(Registrant) | |
Date: November 4, 2026 | /s/ John C. Hadjipateras |
John C. Hadjipateras | |
President and Chief Executive Officer | |
(Principal Executive Officer) |
Date: November 4, 2026 | /s/ Theodore B. Young |
Theodore B. Young | |
Chief Financial Officer | |
(Principal Financial Officer and Principal Accounting Officer) |
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Exhibit 10.1
LOAN AGREEMENT
dated as of September 2, 2026
by and among
DORIAN LPG FINANCE LLC
as Borrower,
DORIAN LPG LTD. and THE COMPANIES listed in Part C of Schedule 1
as joint and several Guarantors,
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part D of Schedule 1
as Lenders,
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Part E of Schedule 1
as Swap Banks,
and
NORDEA BANK ABP, NEW YORK BRANCH,
as Agent and as Security Trustee
*****
Crédit Agricole Corporate AND Investment Bank,
as Sustainability Coordinator,
Nordea Bank Abp, New York Branch, Skandinaviska Enskilda Banken AB (publ), Crédit Agricole Corporate AND Investment Bank, BNP Paribas, Danish Ship Finance A/S, DNB Carnegie, Inc., ING Capital LLC and Oversea-Chinese BankING Corporation LIMITED,
as Mandated Lead Arrangers and Bookrunners
NORDEA BANK ABP, NEW YORK BRANCH and
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL),
as Coordinating Bookrunners
and
NORDEA BANK ABP, NEW YORK BRANCH,
as Coordinator
Index
ClausePage
ii
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Schedules
Execution
Appendices
Appendix A Form of Compliance Certificate
Appendix B Form of Sustainability Certificate
Appendix C Form of Accordion Commitment Agreement
ii
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THIS LOAN AGREEMENT (this “Agreement”) is made as of September 2, 2026
| (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 the other Guarantors from time to time party hereto; |
| (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) | NORDEA BANK ABP, NEW YORK BRANCH, acting in such capacity through its office at 1211 Avenue of the Americas, New York, New York, 10036, as agent for the Lenders (in such capacity, the “Agent”, which expression includes its successors, transferees and assigns); and |
| (7) | NORDEA BANK ABP, NEW YORK BRANCH, acting in such capacity through its office at 1211 Avenue of the Americas, New York, New York, 10036, as security trustee for the Creditor Parties (in such capacity, the “Security Trustee”, which expression includes its successors, transferees and assigns). |
| (A) | Subject to the terms of this Agreement, the Lenders have agreed to make available to the Borrower a senior secured sustainability linked credit facility in the aggregate principal amount equal to the lesser of (i) 40% of the Fair Market Value of the Vessels, and (ii) $368,379,424, consisting of (x) a $213,294,303 term loan facility and (y) a $155,085,121 revolving credit facility, for the purposes set forth herein. |
| (B) | The Lenders and the Swap Banks have agreed to share the Collateral granted to the Security Trustee pursuant to the terms of this Agreement. |
| 1 | Interpretation |
| 1.1 | Definitions |
Subject to Clause 1.5, in this Agreement:
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“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
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(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, (i) a subsidiary of the Parent Guarantor, or (ii) Dorian LPG (DK) ApS; |
| (c) | in respect of the technical or commercial management of any Vessel, 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 respect of the Term Loan Facility, the period commencing on the Closing Date and ending on the date falling forty-five (45) days after the Closing Date; |
| (b) | in the case of the Revolving Credit Facility, the period commencing on the Closing Date and ending on the date falling one (1) Business Day prior to the Maturity Date; and |
| (c) | in respect of the Accordion Facility, the period commencing on the Closing Date and ending on the date falling thirty six (36) months after the Closing 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.
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| (c) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”, |
including Reformed Basel III.
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| (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 or indirectly 100% of the Equity Interests in and control the Borrower; |
| (b) | in respect of an Owner Guarantor, on and after the relevant Drawdown Date relating to the Vessel owned by such Owner Guarantor, the Borrower ceases to own directly 100% of the Equity Interests in and control any Owner Guarantor; or |
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| (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 Closing 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.
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“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 Loan Party or its advisers; or |
| (b) | another Creditor Party, if the information was obtained by that Creditor Party directly or indirectly from any Loan 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 Loan 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 Loan 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. |
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| (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.
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| (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 five (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.
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| (a) | it is entered into by a Loan Party pursuant to a Master Agreement with a Swap Bank; |
| (b) | its purpose is the hedging of such Loan Party’s exposure under this Agreement to fluctuations in Term SOFR (or any successor thereto in effect pursuant to this Agreement) or Dollars 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 Swap Bank, by delivery by the Swap Bank 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; 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; |
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| (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; |
| (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. |
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| (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; |
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| (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 Loan Party. |
| (a) | the imposition of any lien in favor of the PBGC on any Plan or Multiemployer Plan, or on any asset of any Loan 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 |
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| 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. |
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| (a) | that certain amended and restated loan agreement dated December 22, 2023, as amended, modified or supplemented from time to time, made among, inter alia, (i) the Borrower, as borrower, (ii) the Parent Guarantor as parent guarantor, (iii) certain companies named therein as joint and several guarantors, (iii) the lenders from time to time party thereto, (iv) the swap banks from time to time party thereto and (v) Crédit Agricole Corporate and Investment Bank as agent and security trustee; |
| (b) | that certain bareboat charter dated May 19, 2022, as amended, modified or supplemented from time to time, made between Dorian Shanghai LPG Transport LLC as charterers and the special purpose company named therein as owners, providing for the sale leaseback of the Vessel COUGAR; |
| (c) | that certain facility agreement dated December 29, 2021, as amended, modified or supplemented from time to time, made among, inter alia, Constellation LPG Transport LLC and Commander LPG Transport LLC, as borrowers, and Banc of America Leasing & Capital, LLC, Pacific Western Bank, Raymond James Bank, a Florida chartered bank and City National Bank of Florida, as lenders, relating to (among other things) the Vessel COMMANDER; and |
| (d) | a bareboat charter agreement dated April 21, 2020, as amended, modified or supplemented from time to time, made between Dorian Dubai LPG Transport LLC as charterers and the special purpose company named therein as owners, providing for the sale leaseback of the Vessel CRESQUES. |
| (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.
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| (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 Assignment; |
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| (g) | any Insurance Assignment; |
| (h) | any Master Agreement Assignment; |
| (i) | any Mortgage; |
| (j) | any Shares Pledge; |
| (k) | any Manager’s Undertaking; |
| (l) | any Subordination Agreement; and |
| (m) | 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 Loan 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 |
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| 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 |
| (j) | the amount of any liability in respect of any guaranty or indemnity, without duplication, for any of the items referred to in paragraphs (a) to (i) above. |
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| (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 Closing 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 Closing Date. |
“IRS” means the United States Internal Revenue Service or any successor taxing authority or agency of the United States government.
| (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. |
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| (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. |
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| (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. |
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| (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. |
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| (a) | with respect to the Borrower and any Owner Guarantor, the Existing Indebtedness, provided that such Existing Indebtedness incurred by such Owner Guarantor shall be repaid on the Drawdown Date of the Advance under the Term Loan Facility relating to such Vessel, and such Existing Indebtedness incurred by the Borrower shall be repaid on the Borrowing Date; |
| (b) | Financial Indebtedness incurred under this Agreement and the other Finance Documents; |
| (c) | Financial Indebtedness incurred pursuant to Secured Swap Agreements permitted under Clause 5.10 (Hedging); |
| (d) | subject to Clause 11.1(r), loans made to a Loan Party by an Affiliate (including, for the avoidance of doubt, any parent or subsidiary); or |
| (e) | 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 under the Existing Indebtedness, provided that such Security Interests relating to a Vessel or an Owner Guarantor shall be released in full on the Drawdown Date of the Advance under the Term Loan Facility relating to the relevant Vessel, and all such Security Interests shall be released no later than the final Drawdown Date, and such Security Interest granted by the Borrower shall be released on or prior to the Borrowing Date; |
| (b) | Security Interests created or otherwise permitted by the Finance Documents; |
| (c) | Permitted Vessel Liens; |
| (d) | any Security Interest created over the assets of the Parent Guarantor or, at any time after the execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor that do not constitute a part of the Collateral; and |
| (e) | any Security Interest approved by the Majority Lenders. |
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| (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). |
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| (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), |
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| (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, resident, domiciled in or incorporated or organized under the laws of any country, region or territory that is the target of comprehensive, country-, region- 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; |
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| (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. |
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“Secured Swap Obligations” shall mean all Secured Interest Rate Swap Obligations and all Secured Currency Swap Obligations.
| (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 Loan 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 Loan Party has any future or contingent liability under Clause 21, 22 or 23 or any other provision of this Agreement or another Finance Document. |
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| (a) | if the Vessels’ average weighted Annual Efficiency Ratio (AER), as calculated in accordance with the Poseidon Principles, is below the decarbonization trajectory aligned with the 2023 IMO Strategy on Reduction of GHG Emissions from Ships, the Margin shall be reduced by 0.05%; and |
| (b) | if the Vessels’ average weighted Annual Efficiency Ratio (AER), as calculated in accordance with the Poseidon Principles, is not below the decarbonization trajectory aligned with the 2023 IMO Strategy on Reduction of GHG Emissions from Ships, 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%; |
provided that, for the avoidance of doubt, the Margin shall never be less than 1.35% or greater than 1.45% as a result of the Sustainability Pricing Adjustment at any time.
“Swap Exposure” means, as at any relevant date and in relation to a Swap Bank, the amount certified by the Swap Bank to the Agent to be the aggregate net amount in Dollars which would be payable by the Borrower to the Swap Bank under (and calculated in accordance with) section 6(c) (Payments on Early Termination) of the Secured Swap Agreement entered into by the Swap Bank with the relevant Loan Party if an Early Termination Date had occurred on the relevant date in relation to all continuing Designated Transactions entered into between the relevant Loan Party and the Swap Bank.
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“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) 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; |
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| right to an extension), unless it is within seventy-five (75) days redelivered to the full control of the Owner Guarantor owning that Vessel; or |
| (a) | in the case of an actual loss of that Vessel, the date on which it occurred or, if that is unknown, the date and time of the last confirmed communication from, or AIS transmission by such Vessel immediately preceding such loss; |
| (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. |
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| (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 |
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| 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:
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| 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; |
| (b) | references to, or to a provision of, any law or regulation include any amendment, extension, re-enactment or replacement; |
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| (c) | words denoting the singular number shall include the plural and vice versa; |
| (d) | a Potential Event of Default is "continuing" if it has not been remedied or waived in writing, and an Event of Default is "continuing" if it has not been remedied in the reasonable opinion of the Majority Lenders or waived in writing; and |
| (e) | 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 Loan 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 Loan Party with any law or regulation.
| 2 | Facility |
| 2.1 | Amount of facility |
| (a) | Subject to the other provisions of this Agreement the Lenders severally agree 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 $368,379,424 and 40% of the Fair Market Value of the Vessels, as determined no earlier than thirty (30) days prior to the Closing Date (the “Maximum Available Amount”). |
| (b) | On the Borrowing Date, to the extent the Maximum Available Amount is less than the Total Commitments, each Lender’s relevant Commitment and each Tranche shall be reduced pro rata, as notified by the Agent to each Lender and the Borrower. |
| 2.2 | Lenders’ participations in the Advances |
Subject to the other provisions of this Agreement, (a) 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 Credit Commitments, and (b) each Lender shall participate in each Term Loan Advance in the proportion which, as at the relevant Drawdown Date, its Term Loan Facility Commitment bears to the Total Term Loan Facility Commitments.
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| 2.3 | Purpose of the Advances |
The Borrower undertakes with each Creditor Party to use (a) each Revolving Advance and Term Loan Advance to refinance the Existing Indebtedness and for the Borrower or Parent Guarantor’s general corporate and working capital purposes, including without limitation paying fees and expenses associated with the transactions contemplated under this Agreement, and (b) each Accordion Advance only for the purpose stated in Clause 4.2(i).
| 2.4 | Cancellation of Commitments |
Any portion of the Revolving Credit Commitments or Term Loan Facility 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 Closing Date and the end of the Availability Period in respect of the Accordion Facility, the Borrower may, by notice to the Agent, request one or more increases to the Total Term Loan Facility Commitments up to the aggregate maximum principal amount of the Accordion Facility 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, it being understood 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 Facility 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:
| (a) | the Commitments in respect of the Accordion Facility shall not exceed the principal amount of $200,000,000 in the aggregate and any Accordion Advance made shall be in compliance with the relevant provisions under Clause 4.2; |
| (b) | no Lender's Commitment shall be increased by the Accordion Option without the consent of such Lender; |
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| (c) | after giving effect to such Accordion Option, the Borrower shall be in compliance with the Financial Covenants set out in Clause 12; |
| (d) | the amount of the relevant Accordion Advance shall not exceed 40% of the Fair Market Value of the Accordion Vessel to be financed with such Accordion Advance (as determined by valuations dated within 30 days of the relevant Drawdown Date); |
| (e) | the conditions precedent stated in Clause 9.2(b), Clause 9.2(c), Clause 9.2(d), and Clause 9.2(g) (provided that in the case of Clause 9.2(g), the reference to Majority Lenders shall be deemed to include reference to the Majority Accordion Lenders), shall, in each case, have been satisfied or waived; |
| (f) | the Borrower's obligations under the Accordion Facility shall be guaranteed by the Guarantors and secured by the Collateral, in each case on a pari passu basis with the Term Loan Facility and the Revolving Credit Facility; and |
| (g) | the Loan Parties, the Agent, the Security Trustee and the relevant Lender(s) making the Accordion Advance available shall execute and deliver a joinder and amendment to (or a joinder and amendment and restatement of) this Agreement and such of the other Finance Documents as the Agent shall deem necessary to give effect to the exercise of the Accordion Option (each, an “Accordion Amendment”). Accordion Amendments may, without the consent of any other Lenders, effect such technical amendments to this Agreement and the other Finance Documents as may be necessary or appropriate, in the reasonable opinion of the Borrower in consultation with the Agent, to effect the provisions of Clause 2.5 and Clause 2.6 and, to the extent practicable, to make an Accordion Advance fungible (including for Tax purposes) with other Loans (subject to the limitations contained herein). Each of the parties hereto hereby agrees that, upon the 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(g) 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 Loan 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.
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| 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 Loan Party in connection with a Finance Document or a Master Agreement 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 Loan Party, or any other Lender or any other Swap Bank being discharged (in whole or in part) from its obligations under any Finance Document or a Master Agreement, |
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 1:00 p.m. (New York time) two (2) 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 relevant Availability Period; |
| (b) | the Revolving Credit Facility shall be made available to the Borrower in eleven (11) Tranches, consisting of multiple Advances; |
| (c) | the Tranche in respect of a Vessel under the Revolving Credit Facility cannot be borrowed unless the corresponding Tranche for that Vessel under the Term Loan Facility is borrowed on or before the Drawdown Date for such Vessel’s Tranche under the Revolving Credit Facility; |
| (d) | the Term Loan Facility shall be made available to the Borrower in eleven (11) Tranches, consisting of one (1) Advance per Vessel; |
| (e) | 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; |
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| (f) | the aggregate outstanding principal amount of the Advances shall not exceed the Total Commitments; |
| (g) | each Advance in respect of the Revolving Credit Facility shall be for an amount not less than $2,000,000; |
| (h) | no more than three (3) Advances in respect of the Revolving Credit Facility may be requested in any fiscal quarter of the Parent Guarantor; |
| (i) | 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 |
| (j) | 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. |
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| 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) | To the extent requested by a Lender, 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 such Lender. |
| (b) | Each Lender shall record on its internal records the amount of its 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, at the cost of the Creditor Party who lost such Note, 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 relevant Lender shall indemnify the Borrower for any losses, claims or damages resulting from the loss of such Note, to the extent such Note was lost by such Lender following delivery by the Borrower to such Lender or its lawyers. |
| 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 thereof for each Interest Period shall be the aggregate of the Margin and Term SOFR.
| 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 |
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| (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 the Loan 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 the outstanding affected Loan 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 8.16 (Unwinding of Designated Transactions) or Clause 8.18 (Compensation for Losses).
| 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 to 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 clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Finance Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or |
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| any other Finance Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Majority Lenders. |
| (b) | Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, the Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Finance Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Finance Document. |
| (e) | Benchmark Unavailability Period. Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any pending Drawdown Notice for an Advance to be made during any Benchmark Unavailability Period, or, failing that, the Borrower |
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| 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 the outstanding affected Loan will be deemed to have been converted into such a request at the end of the applicable Interest Period. |
| 5.7 | Notice of prepayment and cancellation of Total Commitments |
If the Borrower does not agree with an interest rate set by the Agent under Clause 7.3 (Calculation of default rate of interest), the Borrower may give the Agent not less than fifteen (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 (Amounts payable on prepayment)) and cancel the Total Commitments 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 (Amounts payable on prepayment)) the Loan, together with accrued interest thereon at the applicable rate plus the Margin, any Commitment Fee due and payable, and any other amounts due hereunder. |
| 5.9 | Application of prepayment |
The provisions of Clause 8 shall apply in relation to the prepayment.
| 5.10 | Hedging |
| (a) | Each Loan Party may enter into Master Agreements and shall after the date it has entered into a Master Agreement maintain the Master Agreements relating thereto in accordance with this Clause 5.10. |
| (b) | Each Master Agreement shall: |
| (i) | be with a Swap Bank; |
| (ii) | entered in by a Loan Party in the ordinary course of business for bonafide hedging purposes and not for speculative purposes; |
| (iii) | have settlement dates coinciding with the last day of each Interest Period; and |
| (iv) | provide the Termination Currency (as defined in the relevant Master Agreement) shall be Dollars. |
| (c) | The rights of the relevant Loan Party under each Master Agreement shall be assigned by way of security under a Master Agreement Assignment. |
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| (d) | The parties to each Master Agreement must comply with the terms of that Master Agreement. |
| (e) | Neither a Swap Bank nor any Loan Party 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 a Loan Party 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) | The Borrower shall promptly notify the Agent: (i) If a Swap Bank or a Loan Party terminates or closes out a transaction in respect of a Master Agreement (in whole or in part) or (ii) in the event of non-payment under a Master Agreement by a Loan Party unless the payment is made within three (3) Business Days of its due date. |
| (k) | If a Swap Bank is entitled to terminate or close out any transaction in respect of any Master Agreement in respect of Secured Interest Rate Swap Obligations, 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 a Loan Party pursuant to the relevant Master Agreement Assignment of its rights under the Master Agreements to which it is party in favor 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) | No Loan Party 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 (other than pursuant to a Master Agreement Assignment). |
| (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 terminate such Master Agreement or any Transaction thereunder. |
| 5.11 | Interest rate limitation |
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Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to the Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of the Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Clause 5.11 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate to the date of repayment, shall have been received by such Lender.
| 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 subject to Clause 6.2, 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 first Repayment/Reduction Date occurring thereafter; |
| (c) | in the case of the first Interest Period applicable to each Advance other than an Advance described in paragraph (b) above, 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.
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| 7 | Default Interest |
| 7.1 | Payment of default interest on overdue amounts |
A Loan Party shall pay interest in accordance with the following provisions of this Clause 7 on any amount payable by such Loan 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 20.4, 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 Loan 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 Loan 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.
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| 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.
| 8 | Repayment, Prepayment, Reduction and Cancellation |
| 8.1 | Reduction and Repayment of the Loan and Commitments |
| (c) | The Revolving Credit Commitments shall be reduced on a quarterly basis in the principal amount set forth on the Repayment/Reduction Schedule (each a "Revolving Credit Reduction") on each Repayment/Reduction Date. To the extent the outstanding Revolving Credit Facility exceeds the Revolving Credit Commitments on a Repayment/Reduction Date as a result of a Revolving Credit Reduction, the Borrower shall repay the Revolving Credit Facility in the amount of such Revolving Credit Reduction on the relevant Repayment/Reduction Date. Any reduction and repayment of the Revolving Credit Commitments in accordance with this Clause shall reduce rateably the Revolving Credit Commitment of each Lender. |
| (d) | Subject to paragraph (e) below, the Borrower shall repay each Accordion Advance in equal quarterly installments in the amount determined by the Agent (and agreed with the Borrower and notified to the relevant Lenders) to reflect a straight-line amortization reducing the aggregate principal amount of the such Accordion Advance to $0 upon the relevant Accordion Vessel having achieved an average age of 22 years (each, an “Accordion Repayment Installment”), provided that the amount of the first Accordion Repayment Installment shall be adjusted to reflect the number of days remaining in the period from the relevant Drawdown Date until the next occurring Repayment/Reduction Date. All outstanding principal amounts of the Accordion Facility remaining unpaid on the Maturity Date (the “Accordion Balloon Installment”) shall be repaid in full on the Maturity Date. All repaid amounts in respect of the Accordion Facility shall cause the Total Term Loan Facility Commitments to be cancelled in the same amount. |
| (e) | The first Accordion Repayment Installment shall be repaid on the first Repayment/Reduction Date occurring after the Drawdown Date in respect of such Accordion Advance. |
| (f) | The Agent may from time to time, after consultation with the Borrower, amend the Reduction/Repayment Schedule to give effect to prepayments and cancellations under this Agreement, as well as the making of any Accordion Advance, in each case strictly in accordance |
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| with the terms of this Agreement, and shall promptly deliver to the Borrower and each Lender such amended Reduction/Repayment Schedule. |
| 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 (Conditions for voluntary prepayment), 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 prepayment is in the outstanding amount of a Tranche) in a multiple of $1,000,000; |
| (b) | a partial prepayment shall be applied in accordance with paragraph (c) of Clause 8.15, except as otherwise agreed to between the Borrower and the Lenders; |
| (c) | 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 |
| 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).
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| 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 and the Revolving Credit Facility, or the Accordion Facility (as the case may be), shall be repaid and cancelled in full, 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, refinancing or Total Loss of a Vessel and the prepayment of all amounts required pursuant to this Clause 8.7 (Mandatory reduction and prepayment upon Sale, Refinancing or Total Loss) and Clause 8.9 (Amounts payable on prepayment), at the cost of the Borrower, the relevant Creditor Parties shall release the relevant Owner Guarantor and Security Interest over its Equity Interests and the relevant Vessel (and its Earnings, Insurances and Charter) from this Agreement and the other Finance Documents.
| 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 (Compensation for Losses) 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.
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| 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 an amount of at least $1,000,000 and 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 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. To the extent any cancellation of the Revolving Credit Facility would result in the outstanding Advances in respect of the Revolving Credit Facility to exceed the Revolving Credit Commitments, the Borrower shall also elect to make a voluntary prepayment of the Revolving Credit Facility pursuant to Clause 8.3 (voluntary prepayment).
| 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 or any voluntary cancellation of any Commitments under the Term Loan Facility or the Accordion Facility under Clause 8.11 (Voluntary cancellation of Total Commitments), any partial prepayment or cancellation shall be applied as follows, subject to paragraph (c) below: (x) with respect to the Term Loan Facility, applied (i) pro rata to each Tranche thereof and (ii) pro rata against the Repayment Installments (excluding the Balloon Installment) and thereafter to the Balloon Installment, (y) with respect to the Accordion Facility, applied (i) pro rata to each Tranche thereof and (ii) pro rata against the Accordion Repayment Installments (excluding the Accordion Balloon Installment), and thereafter, to the Accordion Balloon Installment. |
| (b) | In the case of any voluntary cancellation of any Commitments under the Revolving Credit Facility under Clause 8.11 (Voluntary cancellation of Total Commitments), any partial cancellation shall be applied as follows, subject to paragraph (c) below: (x) pro rata to each Tranche under the Revolving Credit Facility, and (y) pro rata across the Revolving Credit Reductions (excluding the amounts due on the Maturity Date), and thereafter, to the amounts due on the Maturity Date in respect of the Revolving Credit Facility. |
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| (c) | The Borrower may elect, in its sole discretion, to prepay or cancel the Term Loan Facility, any Accordion Facility and/or the Revolving Credit Facility, or any portion or combination thereof, pursuant to paragraphs (a) or (b) above, as applicable; provided that, to the extent the Borrower does not provide such election to the Agent on or prior to the date on which the Borrower makes a prepayment, any such prepayments shall be applied, first against the Term Loan Facility and the Accordion Facility in accordance with paragraph (a) above, and then to all outstanding amounts under the Revolving Credit Facility, pro rata in respect of each Tranche thereunder. |
| (d) | Except as provided in Clause 8.7, in the case of any mandatory prepayment in part 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 Installments, Revolving Credit Reductions, Accordion Repayment Installments, the Balloon Installment and the Accordion Balloon Installment under the Revolving Credit Facility, the Term Loan Facility and the Accordion Facility (pro rata across each Tranche). |
| (e) | In the case of any prepayment under Clause 24 or Clause 25, such prepayment of Term Loan Advances, Revolving Advances and/or the Accordion Advances shall be applied against such Notifying Lender’s portion of the Repayment Installments, Revolving Credit Reductions, Balloon Installment, the Accordion Repayment Installment and the Accordion Balloon Installment. |
| 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 the 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 the Loan on the date specified in any notice delivered pursuant hereto, or (c) the assignment of the Loan other than on the last day of the Interest Period applicable thereto, as
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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 | Conditions Precedent to Effectiveness |
This Agreement shall not become effective until the Agent receives, on or before the Closing Date:
| (a) | the documents described in Part A of Schedule 4 in form and substance satisfactory to the Agent and its lawyers; and |
| (b) | such documentation and other evidence as is reasonably requested in writing by the Agent or any Lender at least ten (10) Business Days prior to the Closing Date 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 Loan Party in accordance with the requirements of the PATRIOT Act. |
| 9.2 | Conditions Precedent to each Advance |
Each Lender’s obligation to make its Contribution to an Advance is subject to the following conditions precedent:
| (b) | that, with respect to any Accordion Advance, (i) 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 C of Schedule 4 in form and substance satisfactory to the Agent, and (ii) the Agent has received such documentation and other evidence as is reasonably requested in writing by any new Lender making an Accordion Advance at least ten (10) Business Days prior to the making of such Advance 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 such Lender to identify each Loan Party in accordance with the requirements of the PATRIOT Act; |
| (c) | that, on or before the service of any Drawdown Notice in respect of any Term Loan Advance and any Revolving Advance, the Agent has received (or is satisfied that it will receive on or before the |
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| (d) | that with respect to any Term Loan Advance and any Revolving Advance, 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 Repeating Representations 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 Borrower and the Parent Guarantor, there has been no material change in the consolidated financial condition, operations or business of the Borrower or the Parent Guarantor and its subsidiaries since the date on which the Borrower or Parent Guarantor provided information concerning those topics to the Agent and/or any Lender, provided that any such information which has been posted in the public domain by the Parent Guarantor shall be deemed information which the Agent and/or any Lender is aware of as of such posting date; |
| (e) | that, on or before the Closing Date, the Agent has received evidence of the Maximum Available Amount; |
| (f) | 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 |
| (g) | 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. |
| 9.3 | 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: |
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| (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 |
| (ii) | the Agent shall on the date on which the Accordion Advance is funded (or as soon thereafter as practicable) (A) preposition an amount equal to the aggregate principal amount of the Accordion Advance either (x) at a bank or other financial institution (the "Seller's Bank") satisfactory to the Agent, which funds shall be held at the Seller's Bank in the name and under the sole control of the Agent or one of its Affiliates or (y) with a duly-appointed escrow agent (the “Escrow Agent”) satisfactory to the Agent (acting on the instructions of the relevant Lenders making such Accordion Advance available) pursuant to an escrow agreement entered into with the Accordion Vessel Owner (the “Escrow Agreement”) and (B) in the case of (x), issue a SWIFT MT 199 or other similar communication acceptable to the Agent (each such communication, a "Disbursement Authorization") authorizing the release of such funds by the Seller's Bank on the relevant Delivery Date upon receipt of a Protocol of Delivery and Acceptance in respect of such Accordion Vessel duly executed by the Seller and the relevant Accordion Vessel Owner and countersigned by a representative of the Agent (or such other release mechanism agreed to by the Agent and the relevant Lenders making such Accordion Advance available); |
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; |
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| 10 | Representations and Warranties |
| 10.1 | General |
The Borrower and each of the Guarantors represents and warrants to each Creditor Party as of the Closing Date 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 Loan Party, or to the knowledge of the Borrower or any Guarantor contemplated by any third party, seeking to adjudicate such Loan 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 Loan 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, |
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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 reasonably liable to revocation.
| 10.5 | Title |
| (a) | Each Loan 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 Loan 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 Loan 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) | On and after the Drawdown Date in respect of the Vessel owned by it, 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 Loan 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 Loan Party’s legal, valid and binding obligations enforceable against it in accordance with their respective terms; and |
| (b) | the Finance Documents to which each Loan 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:
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| (a) | the relevant Loan 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 Loan Party; or |
| (b) | the constitutional documents of any Loan Party; or |
| (c) | any contractual or other obligation or restriction which is binding on any Loan Party or any of its assets. |
| 10.9 | Status of Secured Liabilities |
The Secured Liabilities constitute direct, unconditional and general obligations of each Loan 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 |
| (a) | As of the Closing Date, all payments which a Loan Party is liable to make under the Finance Documents to which it is a party can properly be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction, excluding any FATCA Deduction. |
| (b) | Each Loan 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 Loan Party. |
The charges, accruals, and reserves on the books of each Loan Party respecting taxes are adequate in accordance with GAAP.
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| (c) | No material claim for any tax has been asserted against a Loan 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 Loan 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 Loan Party to any of the Creditor Parties:
| (a) | was, to the best of such Loan 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 all material respects in accordance with GAAP; |
| (c) | to the best of any Loan 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 materially false or misleading; |
| (d) | to the best of any Loan 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, provided that any such information which has been posted in the public domain by the Parent Guarantor shall be deemed information which has been delivered to the Agent and/or any Lender as of such posting date; and |
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| (e) | none of the Loan 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 Loan 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 Loan 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 Loan 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 Loan Party, it has conducted and is conducting its businesses in compliance with Anti-Bribery and Corruption Laws. |
| (b) | Each Loan 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 Loan Party shall act in compliance with Anti-Bribery and Corruption Laws. |
| (c) | No Loan Party, is (or ought reasonably to be) aware, that any of its directors or officers has: |
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| (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 Loan 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 other than those which have been delivered to the Agent 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 Loan Party, or affect the legality, validity, binding effect or enforceability of the Finance Documents:
| (a) | the operations and properties of each of the Loan 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 Loan Parties and each of the Loan Parties is in compliance in all material respects with all such Environmental Permits; and |
| (b) | none of the Loan 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 |
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| 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 or, at any time after the execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor. |
| (b) | All of the Equity Interests of each Owner Guarantor have been, on and after the relevant Drawdown Date relating to the Vessel owned by such Owner Guarantor, validly issued and are owned beneficially and of record by the Borrower. |
| (c) | All of the Equity Interests of the Borrower and each Owner 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 Owner Guarantor are subject to any existing option, warrant, call, right, commitment or other agreement of any character to which the Borrower or any Owner Guarantor is a party requiring, and there are no Equity Interests of the Borrower or any Owner Guarantor outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional Equity Interests of the Borrower or any Owner 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 Owner 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 Loan 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 Loan Parties and their subsidiaries and ERISA Affiliates in excess of $500,000 following the date of this Agreement. |
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| (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 Loan 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 Loan Party: |
| (i) | is, or has been, a Restricted Party; |
| (ii) | is in breach of or has violated Sanctions or has taken or is taking any action which constitutes or would constitute a violation by any Loan Party of Sanctions or that would result in any Loan Party being designated as a Restricted Party; |
| (iii) | is, or has been, engaged in any transaction, activity or conduct that could reasonably be expected to result in its being designated as a Restricted Party; |
| (iv) | as of the Closing Date and the date of each Drawdown Notice, has received notice of, or is otherwise aware of, any inquiry, claim, action, formal notice, suit, proceedings or investigation involving it with respect to Sanctions; |
| (v) | owns or controls or is an Affiliate of a Restricted Party; or |
| (vi) | 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. |
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| 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 |
| 10.25 | Vessels |
As of the relevant Drawdown Date relating to a Vessel’s Tranche, 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 Loan 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 Loan 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
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| 10.27 | Solvency |
In the case of the Parent Guarantor and its subsidiaries, on the Closing Date and on each Drawdown Date:
| (a) | the sum of their assets, at a fair valuation, taken as a whole, exceeds 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 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 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 Loan 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 Loan Party of the Finance Documents to which it is a party constitute private and commercial acts rather than public or governmental acts. |
| (b) | No Loan 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 Loan 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 Loan 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 Loan 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 |
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| 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 Loan Party or subject to taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Loan Party. |
| (f) | Under the law of each Loan 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 Loan 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 Loan Parties in such courts. |
| (h) | As of the Closing 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 (excluding paragraph (a) and (e) of Clause 10.10 (Taxes) and those relating to a specific date) (the “Repeating Representations”) are deemed to be made by each of the Loan Parties by reference to the facts and circumstances then existing on the date of each Drawdown Notice, each Drawdown Date and the first day of each Interest Period.
| 11 | General Affirmative and Negative Covenants |
| 11.1 | Affirmative covenants |
From the Borrowing 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; provided that such approval right shall be subject to Clause 28:
| (a) | Performance of obligations. Each Loan 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 |
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| Loan Party’s ability to perform its obligations under each Finance Document to which it is or is to become a party; |
| (ii) | the details of any inquiry, claim, action, suit, proceeding, or investigation pursuant to Sanctions against any Loan Party or any subsidiary of it or any of their respective directors or officers, as well as information on what steps are being taken with regard to answer or oppose such; |
| (iii) | any Loan Party or any subsidiary of it or any of their respective directors or officers becoming a Restricted Party or any Loan Party or its subsidiary failing to comply with any Sanctions applicable to it; and |
| (iv) | 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) provided that such Lender or Lenders have reason to believe an Event of Default or Potential Event of Default has occurred or is continuing and have provided to the Borrower a written explanation setting forth in reasonable detail such Event of Default or Potential Event of Default that has occurred and is continuing.
| (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 Loan 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 written request from the Agent, 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 Loan Party with any Finance Document; |
| (iii) | the financial condition, assets and operations of the Loan Parties; or |
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| (iv) | any other matter relevant to, or to any provision of, a Finance Document, |
which may be reasonably requested by the Agent, or the Security Trustee, any Lender or any Swap Bank acting through the Agent 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 material financial transactions and the assets of each of the Borrower and the Guarantors in accordance with GAAP and consistent with the past practices of each of the Borrower and the Parent Guarantor, 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 bank 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 (or, with respect to paragraph (v) below, the Sustainability Coordinator): |
| (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 signed by the chief financial officer (or equivalent) of the Parent Guarantor; |
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| (v) | no later than June 30 of each calendar year, commencing with June 30, 2027, 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) | 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 |
| (vii) | 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 (or by any Lender through 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 acting through the Agent, 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 Loan 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 |
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| 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 Loan Party or to affect the legality, validity, binding effect or enforceability of the Finance Documents. |
| (j) | Consents. Each Loan 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 Loan 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 Loan 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 Loan 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 Loan 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 Loan 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 Loan Party or affect the legality, validity, binding effect or enforceability of the Finance Documents, each Loan 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. |
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| (ii) | Each Loan 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 Loan 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 Clause 2.3 (Purpose of Advances) of 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 Loan Party conducts its affairs and keeps its records. |
| (q) | Pollution liability. Each Loan 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 Loan 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 Loan Party shall take any action, make any omission or use (directly or, to such Loan Party’s knowledge, 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 Loan Party shall, directly or, to such Loan Party’s knowledge, indirectly, (x) 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 in any other manner that would result in a violation of Sanctions by any person (including any person |
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| participating in the Facility, whether as underwriter, advisor, investor, or otherwise), or (y) fund any activities or business of or with any person, or in any country or territory, that, at the time of such funding, is the target of Sanctions, including Russia and Belarus. |
| (iii) | No Loan 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 Loan 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 Loan Party under or in connection with any Finance Document shall, to the knowledge of such Loan 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 Closing Date; |
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| (ii) | any change in the status of the Borrower or any other Loan Party after the Closing 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 reasonably 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.
| (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 through the Agent to effectuate the purposes of this Agreement, the other Finance Documents or obtain the full benefit of any of the Collateral. |
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| 11.2 | Negative covenants |
From the Borrowing 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; provided that such approval right shall be subject to Clause 28:
| (a) | Security Interests. (i) None of the Borrower or the Owner Guarantors 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 and, at any time after the execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor, 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 Owner Guarantors 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 Closing 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. |
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| (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 Loan Parties (other than the Parent Guarantor and the Pledgor) 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
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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 Loan 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. |
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| (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 Closing 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 Borrowing 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; provided that such approval right shall be subject to Clause 28.
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| 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 66.67% 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:
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| (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:
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| (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. |
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| 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.
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| 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
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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 Closing Date which are, in the reasonable opinion of the Agent or the Majority Lenders significant and capable of affecting the relevant Loan 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 Loan 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 Loan 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 Drawdown Date in respect of each Vessel 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; provided that such approval right shall be subject to Clause 28.
| 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 |
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| (c) | not 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 Loan 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 (x) with respect to paragraph (c) below, or (y) with respect to paragraphs (a), (b) or (d) below, if required by the Agent in writing, instruct the Classification Society referred to in Clause 14.3(b) (and upon providing such instruction 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: |
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| (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
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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 by any such surveyors or other persons appointed by it pursuant to this Clause 14.8, 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 in all material respects, 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;
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| (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 a 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; |
| (ii) | in any manner that would result in a violation of any Sanctions by, or would reasonably be expected to result in the imposition of Sanctions against, any party to any Finance Document; |
| (iii) | in any trade which would reasonably be expected to expose such Vessel, any Creditor Party, any manager of such Vessel, the ship’s crew or such 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; |
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| (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 Loan 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). |
| 14.14 | Copies of Charters; Charter Assignment |
Provided that all approvals necessary under Clause 14.13 have been previously obtained, each Owner Guarantor shall:
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| (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, prior to the delivery of the Vessel to the charterer thereunder, execute and deliver to the Agent a Charter Assignment and execute and deliver to the charterer the relevant notice required to be delivered thereunder, and use commercially reasonable efforts to obtain the consent of the charterer to such Charter Assignment. |
| 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, and, if required by applicable law (x) carry on board that Vessel a certified copy of the Mortgage and (y) 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 Borrowing 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; provided that such approval right shall be subject to Clause 28.
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| 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 140% of the Loan 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 Credit 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 (other than in the case of cash) 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
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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 not later than thirty (30) days after the end of each of the second and fourth fiscal quarters 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, each Guarantor and the Borrower (provided that, for purposes of this Clause 16, the Borrower shall be deemed to be a “Guarantor” solely in respect of Secured Liabilities which constitute Secured Swap Obligations), irrevocably and unconditionally, jointly and severally:
| (b) | undertakes with each Creditor Party that whenever the Borrower does not pay any Guaranteed Obligations when due, such Guarantor shall immediately on demand pay that Guaranteed Obligation 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 Obligation 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; |
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| (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 Obligations 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 Obligations; |
| (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 Obligations 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 Obligations; obligations pari passu |
| (a) | Each Guarantor agrees that the Guaranteed Obligations 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 Obligations 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 Loan 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 Loan Party or other person; |
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| (b) | the release of any other Loan Party or any other person under the terms of any composition or arrangement with any creditor of any Loan 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 Loan 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 Loan Party or any other person (including without limitation any change in the holding of such Loan 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 Loan 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 Loan 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 Obligations 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 Loan 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 Loan 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. |
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| 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 Loan 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 Obligations or any other obligations of the Borrower or any other Loan 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 Loan Party or whether the Borrower or any other Loan Party is joined in any such action or actions.
| 16.13 | Deferral of Guarantors’ rights |
Until the Guaranteed Obligations 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 Loan Party; |
| (b) | to claim any contribution from any other guarantor of any Loan Party’s obligations under the Finance Documents; |
| (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; |
| (d) | to bring legal or other proceedings for an order requiring any Loan Party to make any payment, or perform any obligation, in respect of which such Guarantor has given a guarantee, undertaking or indemnity under this Clause 16 (Guarantee); |
| (e) | to exercise any right of set-off against any Loan Party; and/or |
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| (f) | to claim or prove as a creditor of any Loan Party in competition with 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 Obligations 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 Obligations 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 Obligations 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 or refinancing of its Vessel or if its Vessel becomes a Total Loss, provided (x) no Event of Default has occurred and is continuing or would result therefrom, (y) such Owner Guarantor or the Borrower has made the mandatory prepayment required under Clause 8.7 as a result of such sale, refinancing or Total Loss, and (z) no other payment is then due from that Owner Guarantor under any of the Finance Documents to which it is a party, an Owner Guarantor shall be released as an Owner Guarantor hereunder and in respect of its obligations under the other Finance Documents to which it is a party. 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
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time by each other Loan 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 Loan Parties (upon receipt of an invoice not less than five (5) Business Days before the due date with respect to payments to be made by the Loan Parties) under a Finance Document shall be made to the Agent or to the Security Trustee, in the case of an amount payable to it:
| (a) | by not later than 11:00 a.m. (New York 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 as the Agent may from time to time notify to the Borrower, the other Loan 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 Loan Party under a Finance Document would otherwise fall due on a day which is not a Business Day:
| (a) | the due date shall be extended to the next succeeding Business Day; or |
| (b) | if the next succeeding Business Day falls in the next calendar month, the due date shall be brought forward to the immediately preceding Business Day. |
| 17.3 | Basis for calculation of periodic payments |
All interest, Commitment Fees and any other payments under any Finance Document which are of an annual or periodic nature shall accrue from day to day and shall be calculated on the basis of the actual number of days elapsed and a 360-day year.
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| 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.
Notwithstanding the foregoing, at no time shall the Agent or the Security Trustee be responsible for determining whether any deduction or withholding in respect of Taxes or otherwise is required in connection with a distribution made by it or proceeds received by it.
| 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. |
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| 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 Loan Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any other Loan 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 Loan Party under the Finance Documents and all payments in respect of those amounts made by the Borrower and any other Loan 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 Loan 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 and the Secured Swap Obligations in the following order and proportions: |
| (ii) | second, to the payment of that portion of the Secured Liabilities constituting costs and expenses of each Lender and Swap Bank which are required to be paid under this Agreement, any other Finance Document or any Swap Agreement relating to Secured Interest Rate Swap Obligations, pro rata in the proportion in which such amount due to each Lender and Swap Bank bears to the aggregate of such amounts due to all Lenders and Swap Banks collectively, until all such amounts have been paid in full; |
| (iii) | third, to the payment of that portion of the Secured Liabilities constituting any due and unpaid fees to the Creditor Parties as provided by this Agreement, any other Finance Document, or any Swap Agreement relating to Secured Interest Rate Swap Obligations, |
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| pro rata in the proportion in which such amount due to each Creditor Party bears to the aggregate of such amounts due to all Creditor Parties collectively, until all such amounts have been paid in full; |
| (iv) | fourth, to the payment of that portion of the Secured Liabilities constituting accrued and unpaid interest or default interest payable to the Creditor Parties under the Finance Documents and each Secured Swap Agreement relating to Secured Interest Rate Swap Obligations (and, for this purpose, the expression “interest” shall include any net amount which the relevant Loan Party shall have become liable to pay or delver under section 9(h)(Interest and Compensation) of any Secured Swap Agreement relating to Secured Interest Rate Swap Obligations but shall have failed to pay or deliver to the relevant Swap Bank at the time of application or distribution under this Clause 18), pro rata in the proportion in which such amount due to each Creditor Party bears to the aggregate of such amounts due to all Creditor Parties collectively, until all such amounts have been paid in full; |
| (v) | fifth, to the payment of that portion of the Secured Liabilities constituting any principal then due and payable to the Lenders in respect of the Loan and the Swap Exposure of each Swap Bank in respect of any Secured Interest Rate Swap Obligations (calculated as at the actual Early Termination Date applying to each particular Designated Transaction entered into under the Secured Swap Agreements (or any of them), or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder and pro rata as between them), pro rata in the proportion in which such amount due to each Creditor Party bears to the aggregate of such amounts due to all Creditor Parties collectively, until all such amounts have been paid in full; |
| (vi) | sixth, to the payment of that portion of the Secured Liabilities constituting the Swap Exposure of each Swap Bank in respect of Secured Swap Agreements relating to Secured Currency Swap Obligations, pro rata in the proportion in which such amount due to each Swap Bank bears to the aggregate of such amounts due to all Swap Banks collectively, until all such amounts have been paid in full; |
| (vii) | seventh, to the payment of that portion of the Secured Liabilities constituting any other outstanding Secured Liabilities then due and payable to any Creditor Party, pro rata in the proportion in which such amount due to each Creditor Party bears to the aggregate of such amounts due to all Creditor Parties collectively, until all such amounts have been paid in full; and |
| (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 Obligations shall be applied to any Excluded Swap Obligations.
| 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 Loan Parties and the other Creditor Parties provide for a different manner of
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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 Loan 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. |
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| 19 | Application of Earnings; Accounts |
| 19.1 | General |
From the Closing 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. |
| (c) | The Borrower and each of the Owner Guarantors shall ensure that all Earnings of each Vessel, all moneys payable to any Loan Party under a Vessel’s Insurances and any net amount payable to any Loan Party under any Master Agreement shall be paid by the persons from whom they are due to the Borrower’s Earnings Account (or, if applicable the Earnings Account held by the relevant Owner Guarantor) unless required to be paid to the Security Trustee under the relevant Finance Documents. |
| (d) | None of the Loan Parties shall withdraw amounts standing to the credit of an Earnings Account except as permitted by paragraph (e) 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 to and consent of the Borrower 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.
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| 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 Loan 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 the Borrower or Guarantor under any contract or agreement (other than the Finance Documents) to which such Loan 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, an Owner Guarantor or at any time after the |
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| execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor, $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, the Borrower, or at any time after the execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor 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 Loan 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 Loan 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 Loan 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 Loan 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 Loan 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 Loan 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, an Owner Guarantor or at any time after the execution of a Joinder Agreement and Shares Pledge by the Pledgor, the Pledgor, 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 Loan 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 |
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| enforcement proceedings shall have been commenced by any creditor upon such judgment or order; or |
| (m) | any Loan 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 Loan 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 Loan 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 Loan 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 |
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| (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 |
| (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 Loan Party under this Agreement and every other Finance Document shall become immediately due and payable or, as the case may be, payable on demand.
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| 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 Loan Parties |
The Agent shall send to each Lender, the Security Trustee and each Loan 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 Loan 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 Loan 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 |
| (i) | with respect to the Term Loan Facility, a daily commitment fee which shall accrue commencing on the Closing Date until the last day of the Availability Period, in an amount equal to 35% of the Margin in effect for each day multiplied by the difference between (A) the daily Total Term Loan Facility Commitments, less (B) the aggregate amount of any Term Loan Advances outstanding on such day, and |
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| (ii) | with respect to the Revolving Credit Facility, a daily commitment fee which shall accrue commencing on the Closing Date until the last day of the Availability Period, in an amount equal to 35% of the Margin in effect for each day multiplied by the difference between (A) the daily Total Revolving Credit Commitments, less (B) the aggregate amount of any Revolving Credit Advances outstanding on such day, |
payable to the Agent for distribution among the Lenders (x) quarterly in arrears on the last day of each fiscal quarter, (y) on the Maturity Date and (z) with respect to any cancelled portion of the Commitments, on the date of the cancellation of such Commitments. No Commitment Fee shall be payable to the Agent (for the account of the relevant Lender) in respect of any undrawn Commitment of a Lender for any day on which that Lender is a Defaulting Lender.
| (b) | The Borrower shall pay such other fees in the amounts and at the times specified in each Fee Letter (or any Accordion Amendment), 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 Holland & Knight LLP as legal counsel to the Agent and the Security Trustee, which the Borrower and the Agent have agreed separately and form a part of this Agreement, 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, the Security Trustee and/or any Lender (however, as it relates to any Lender only in the case of (e) below), 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 Loan 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 Loan Parties; |
| (d) | the valuation of any Collateral provided or offered under Clause 15 or any other matter relating to such Collateral; |
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| (f) | any step taken by the Agent or the Security Trustee with a view to the protection, exercise or enforcement of any right or Security Interest created by a Finance Document or for any similar purpose. |
| 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 Loan 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 Loan 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. |
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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 Loan 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:
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| (a) | making or lodging any claim or proof against the Borrower or any other Loan 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 a Loan Party 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 Loan 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 Loan Party is required by law to make. |
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| 23.2 | Grossing-up for taxes |
If a Loan Party is required by law to make a tax deduction from any payment:
| (a) | such Loan Party shall notify the Agent as soon as it becomes aware of the requirement; |
| (b) | such Loan 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 Loan 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 Loan 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
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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 |
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| (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 Loan Party, a Lender that is entitled to an exemption from, or reduction in the amount of, such Withholding tax shall deliver to such Loan Party (with a copy to the Agent), at the time or times prescribed by applicable law or promptly after receipt of the Loan Party’s request, whichever is later, such properly completed and executed documentation requested by the Loan 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 |
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| 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 Loan 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 |
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:
| (a) | transfer its entire interest in the Loan to a U.S. branch or Affiliate, or |
| (b) | 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 |
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| 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; |
| (b) | upon the Agent notifying the Borrower and the other Creditor Parties, the Commitment of the Notifying Lender will be immediately cancelled; and, to the extent such Notifying Lender’s participation has not been assigned pursuant to Clause 24.2, the Borrower shall prepay (without any fees, premium or penalty) that Lender's participation in the Loan on the last day of the Interest Period for the Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law) and that Lender's corresponding Commitment shall be immediately cancelled in the amount of the participation prepaid; and accrued interest and all other amounts accrued for that Lender under the Finance Documents shall be immediately due and payable. |
| 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. |
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| 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 Closing Date of a law or an alteration after the Closing 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); |
| (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 Closing Date; |
| (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 (Including Reformed 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); or |
| (d) | compliance with the requirements of the Financial Conduct Authority (UK) or, in any case, any similar institution which replaces all or any of their functions whose requirements such Lender complies with, |
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 |
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| (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 Loan 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.
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| 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.
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| 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 (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), and the Agent (provided that the consent of the Agent shall only be subject to satisfaction of the Agent’s know-your-customer requirements), 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 Loan 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 Credit 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):
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| (a) | sign the Transfer Certificate on behalf of itself, the Borrower, the other Loan 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 Loan 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 Loan 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 Loan 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; |
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| (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 Loan 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.
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| 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: |
| (E) | to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory |
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| authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation; |
| (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 Loan 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 |
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| 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 Loan 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 Loan 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:
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| (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 Loan 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 |
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| 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.
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| 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 Loan Party is party, by that Loan 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, the Collateral, a Security Interest, guarantee, indemnity or subordination arrangement set out in a Finance Document (including, for the avoidance of doubt, subordinating or having the effect of subordinating the Secured Liabilities or the Collateral to any other Financial Indebtedness, or causing the Collateral to be shared with the holder of any other Financial Indebtedness); |
| (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. |
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| 28.3 | Variations, waivers etc. relating to the Specific Creditor Parties |
| (a) | 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. |
| (b) | Notwithstanding the foregoing, if, following the Closing Date, the Agent and the Borrower shall have agreed in their sole and absolute discretion that there is an ambiguity, inconsistency, manifest error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Finance Documents, then the Agent and the Borrower shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Finance Documents if the same is not objected to in writing by the Majority Lenders within seven (7) Business Days following receipt of notice thereof (it being understood that the Agent has no obligation to agree to any such amendment). |
| 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 Loan 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 Loan Party and the Agent agree and confirm that the representations in Clause 10.23 and Clause 10.25(f), and the undertakings in Clause 11.1(t) and Clause 14.10 (as it relates to Sanctions) shall only be given by the Loan 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.
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| 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, Part B; |
| (c) | in the case of the Owner Guarantors, that specified in Schedule 1, Part C; |
| (d) | in the case of the Pledgor, that specified in the relevant Joinder Agreement; |
| (e) | in the case of each Lender, that specified in Schedule 1, Part D; |
| (f) | in the case of Swap Bank, that specified in Schedule 1, Part E; and |
| (g) | 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, |
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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.
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| 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 Closing 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 |
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| (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. |
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| (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 and as security agent 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 |
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| 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. |
| (iv) | Appointment as Attorney-in-Fact. Each of the Security Trustee or its delegates is irrevocably appointed to be the attorney of the Borrower (with full power of substitution), on its behalf and in its name or otherwise, at such time and in such manner as the attorney thinks fit to, (i) do anything which the Borrower is obliged to do under any Finance Document to which it is party but has failed to do (including to do all such acts or execute all such documents, assignments, transfers, mortgages, charges, notices, instructions, filings and registrations as the Security Trustee may reasonably specify (and in such form as the Security Trustee may reasonably require in favor of the Security Trustee or its nominee(s))); and (ii) to exercise any of the rights conferred on the Security Trustee, any receiver or any delegate in relation to the Collateral or under any Finance Document or under any law, provided that the power of attorney constituted by this sub-paragraph (iv) shall be exercisable only on the occurrence and during the continuance of an Event of Default. |
| 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 Loan 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 |
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| 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.
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| 31.6 | Indemnification of Security Trustee and Agent |
| (a) | 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. |
| (b) | In the event of any loss, destruction, misplacement, damage, or unavailability of original mortgage documentation or original certificates delivered under any Shares Pledge while in the possession or control of the Security Trustee or its agents, the Security Trustee shall bear all costs, expenses, and liabilities arising directly from such loss, destruction, misplacement, damage, or unavailability including all reasonable costs and expenses of preparing, executing, recording, or otherwise obtaining any documentation required to effect the release, reconveyance, discharge, satisfaction, or removal of the Mortgage or any related lien or the replacement of any original certificates. |
| 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
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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, etc. |
Except as provided in the Finance Documents, none of the Mandated Lead Arrangers, Bookrunners, Coordinating Bookrunners or Coordinator has any obligation of any kind to any other party to this Agreement under or in connection with any Finance Document.
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| 31.12 | Role of the Sustainability Coordinator. |
The Sustainability Coordinator shall, promptly (and in any event within two (2) Business Days) upon receipt of a Sustainability Certificate from the Borrower, deliver a copy thereof to the Agent provided that any failure by the Sustainability Coordinator shall not negatively impact the Borrower under this Agreement.
| 31.13 | 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 Loan |
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| 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 Loan Party for the purpose of making such Rescindable Amount. For the avoidance of doubt, no provision in this Clause 31.13 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 Loan 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 Loan 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 |
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| 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 Loan Party, which information includes the name and address of each Loan Party and such other information that will allow the Agent and each of the Lenders to identify each Loan Party in accordance with the PATRIOT Act.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
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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: Chief Financial Officer |
| |
[Signature Page to Loan Agreement]
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 |
| |
DORIAN DUBAI 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 |
| |
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 |
| |
DORIAN MONACO LPG TRANSPORT LLC, as Guarantor By: _/s/Theodore B. Young__________ Name: Theodore B. Young Title: President | DORIAN SHANGHAI LPG TRANSPORT LLC, as Guarantor By: _/s/Theodore B. Young__________ Name: Theodore B. Young Title: President |
| |
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 |
| |
COMMANDER LPG TRANSPORT LLC as Guarantor By: _/s/Theodore B. Young__________ Name: Theodore B. Young Title: President | |
[Signature Page to Loan Agreement]
NORDEA BANK ABP, NEW YORK BRANCH, as Agent, Security Trustee and Lender By: ___/s/ Sophia Agathis_____________ Name: Sophia Agathis Title: Attorney-in-fact | |
| |
| |
[Signature Page to Loan Agreement]
Nordea Bank ABP, as Swap Bank By: __/s/ Christopher Spitler_________ Name: Christopher Spitler Title: Authorized Signatory By: __/s/ Kren Holm-Jorgensen______ Name: Kren Holm-Jorgensen Title: Senior Vice President |
[Signature Page to Loan Agreement]
BNP Paribas
as Lender
By: _/s/ Eric Dulcire ____________
Name: Eric Dulcire
Title: Managing Director
By: _/s/ Bertrand Rabu__________
Name: Bertrand Rabu
Title: Head of Transportation Transaction Team
BNP Paribas, as Swap Bank By: _/s/ Eric Dulcire ____________ Name: Eric Dulcire Title: Managing Director By: _/s/ Bertrand Rabu__________ Name: Bertrand Rabu Title: Head of Transportation Transaction Team |
[Signature Page to Loan Agreement]
Credit Agricole Corporate and Investment Bank,
as Lender
By: _/s/ Yannick Le Gourieres ____________
Name: Yannick Le Gourieres
Title: Managing Director
By: _/s/ Alex Foley__________
Name: Alex Foley
Title: Director
Credit Agricole Corporate and Investment Bank, as Swap Bank By: _/s/ Yannick Le Gourieres ____________ Name: Yannick Le Gourieres Title: Managing Director By: _/s/ Alex Foley__________ Name: Alex Foley Title: Director |
[Signature Page to Loan Agreement]
Danish Ship Finance,
as Lender
By: _/s/ Marcus Freuchen Christensen _____
Name: Marcus Freuchen Christensen
Title: Senior Client Executive
By: _/s/ Christian Gerard Moxon _____
Name: Christian Gerard Moxon
Title: Chief Commercial Officer
[Signature Page to Loan Agreement]
DNB Capital LLC,
as Lender
By: _/s/ Cathleen Buckley ____________
Name: Cathleen Buckley
Title: Director
By: _/s/ Andrew J. Shohet__________
Name: Andrew J. Shohet
Title: Managing Director, Head of Ocean Industries, North America
DNB Bank ASA, as Swap Bank By: _/s/ Cathleen Buckley ____________ Name: Cathleen Buckley Title: Director By: _/s/ Andrew J. Shohet__________ Name: Andrew J. Shohet Title: Managing Director, Head of Ocean Industries, North America |
[Signature Page to Loan Agreement]
ING Capital LLC,
as Lender
By: _/s/ Michael Choina ____________
Name: Michael Choina
Title: Managing Director
By: _/s/ Maria Fahey_________
Name: Maria Fahey
Title: Director
ING Capital Markets LLC, as Swap Bank By: _/s/ Juan Carlos Vallarino_______ Name: Juan Carlos Vallarino Title: Director By: _/s/ Paola Corradetti_________ Name: Paola Corradetti Title: Director ING Bank N.V., as Swap Bank By: _/s/ Murat Tas_______ Name: Murat Tas Title: Head Legal Financial Markets By: _/s/ Marnix Bruning_________ Name: Marnix Bruning Title: Head of Execution Sales |
[Signature Page to Loan Agreement]
Oversea-Chinese Banking Corporation Limited,
as Lender
By: _/s/ Siu Ming Cheuk ____________
Name: Siu Ming Cheuk
Title: General Manager
Oversea-Chinese Banking Corporation Limited, as Swap Bank By: _/s/ Siu Ming Cheuk ____________ Name: Siu Ming Cheuk Title: General Manager |
[Signature Page to Loan Agreement]
Skandinaviska Enskilda Banken AB (publ),
as Lender
By: _/s/ Hans Christian Kjelsrud ____________
Name: Hans Christian Kjelsrud
Title: Global Head of Shipping Coverage SEB
By: _/s/ Per Olav Bucher-Johannessen_______
Name: Per Olav Bucher-Johannessen
Title: Head of Shipping Coverage SEB UK, Norway, US, Europa
Skandinaviska Enskilda Banken AB (publ), as Swap Bank By: _/s/ Hans Christian Kjelsrud ____________ Name: Hans Christian Kjelsrud Title: Global Head of Shipping Coverage SEB By: _/s/ Per Olav Bucher-Johannessen_______ Name: Per Olav Bucher-Johannessen Title: Head of Shipping Coverage SEB UK, Norway, US, Europa |
[Signature Page to Loan Agreement]
1.1 Name: | 1.2 Dorian LPG Finance LLC |
1.3 Jurisdiction of Formation: | 1.4 Marshall Islands |
1.6 963243 | |
1.8 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.10 c/o Dorian LPG (USA) LLC 1.11 27 Signal Road 1.12 Stamford, CT 06902 |
1.13 Name: | 1.14 Dorian LPG Ltd. |
1.15 Jurisdiction of Formation: | 1.16 Marshall Islands |
1.18 62405 | |
1.20 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.22 c/o Dorian LPG (USA) LLC 1.23 Attention: Mr. Ted Young, CFO 1.24 27 Signal Road 1.25 Stamford, CT 06902 |
1.26 Name: | 1.27 Comet LPG Transport LLC |
1.28 Jurisdiction of Formation: | 1.29 Marshall Islands |
1.31 962663 | |
1.33 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.35 c/o Dorian LPG (USA) LLC 1.36 27 Signal Road 1.37 Stamford, CT 06902 |
1.38 Name: | 1.39 Concorde LPG Transport LLC |
1.40 Jurisdiction of Formation: | 1.41 Marshall Islands |
1.43 962864 | |
1.45 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.47 c/o Dorian LPG (USA) LLC 1.48 27 Signal Road 1.49 Stamford, CT 06902 |
1.50 Name: | 1.51 Dorian Dubai LPG Transport LLC |
1.52 Jurisdiction of Formation: | 1.53 Marshall Islands |
1.54 Registration number (or equivalent, if any) | 1.55 962646 |
1.56 Registered address | 1.57 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 |
1.58 Address for service of process and notices | 1.59 c/o Dorian LPG (USA) LLC 1.60 27 Signal Road 1.61 Stamford, CT 06902 |
1.62 Name: | 1.63 Dorian Sao Paulo LPG Transport LLC |
1.64 Jurisdiction of Formation: | 1.65 Marshall Islands |
1.67 962649 | |
1.69 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.71 c/o Dorian LPG (USA) LLC 1.72 27 Signal Road |
1.73 Stamford, CT 06902 |
1.74 Name: | 1.75 Dorian Ulsan LPG Transport LLC |
1.76 Jurisdiction of Formation: | 1.77 Marshall Islands |
1.79 962664 | |
1.81 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.83 c/o Dorian LPG (USA) LLC 1.84 27 Signal Road 1.85 Stamford, CT 06902 |
1.86 Name: | 1.87 Dorian Amsterdam LPG Transport LLC |
1.88 Jurisdiction of Formation: | 1.89 Marshall Islands |
1.91 962642 | |
1.93 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.95 c/o Dorian LPG (USA) LLC 1.96 27 Signal Road 1.97 Stamford, CT 06902 |
1.98 Name: | 1.99 Dorian Monaco LPG Transport LLC |
1.100 Jurisdiction of Formation: | 1.101 Marshall Islands |
1.102 Registration number (or equivalent, if any) | 1.103 962645 |
1.104 Registered address | 1.105 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 |
1.106 Address for service of process and notices | 1.107 c/o Dorian LPG (USA) LLC 1.108 27 Signal Road 1.109 Stamford, CT 06902 |
1.119 c/o Dorian LPG (USA) LLC 1.120 27 Signal Road 1.121 Stamford, CT 06902 |
1.122 Name: | 1.123 Corvette LPG Transport LLC |
1.124 Jurisdiction of Formation: | 1.125 Marshall Islands |
1.127 962466 | |
1.129 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.131 c/o Dorian LPG (USA) LLC 1.132 27 Signal Road 1.133 Stamford, CT 06902 |
1.134 Name: | 1.135 Dorian Explorer LPG Transport LLC |
1.136 Jurisdiction of Formation: | 1.137 Marshall Islands |
1.139 962682 | |
1.141 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 | |
1.143 c/o Dorian LPG (USA) LLC 1.144 27 Signal Road 1.145 Stamford, CT 06902 |
1.146 Name: | 1.147 Commander LPG Transport LLC |
1.148 Jurisdiction of Formation: | 1.149 Marshall Islands |
1.150 Registration number (or equivalent, if any) | 1.151 962865 |
1.152 Registered address | 1.153 Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands, MH 96960 |
1.154 Address for service of process and notices | 1.155 c/o Dorian LPG (USA) LLC 1.156 27 Signal Road 1.157 Stamford, CT 06902 |
Lender | Revolving Credit Commitment | Term Loan Facility Commitment | Total |
|---|---|---|---|
NORDEA BANK ABP, NEW YOK BRANCH 1211 Avenue of the Americas, 23rd Floor New York, New York 10036 Attn: Erik Havnvik, Anna Cecilie Ribe Email: DLNY-NY-CADLoan@nordea.com, erik.havnvik@nordea.com, anna.cecilie.ribe@norda.com | $31,018,756.67 | $42,661,243.33 | $73,680,000.00 |
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) Kungsträdgårdsgatan 8 106 40, Stockholm Sweden Attn: Gjert Moberg / Kari Norheim Kvistad Email: gjert.moberg@seb.no / kari.kvistad@seb.no | $31,018,756.67 | $42,661,243.33 | $73,680,000.00 |
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK 1301 Avenue of the Americas New York, New York 10019 United States Attn: Yannick Le Gourieres / Alex Foley Email: yannick.legourieres@ca-cib.com / alexander.foley@ca-cib.com / NYshipfinance@ca-cib.com | $17,268,886.16 | $23,750,537.84 | $41,019,424.00 |
BNP PARIBAS 9 Rue du Débarcadère 93500 PANTIN (France) Attn: BNP PARIBAS Email: For Loan Servicing Matters: ls1.loanservicinglisbon@bnpparibas.com and paris.cib.cbe.ctm.transportation@bnpparibas.com For Covenants Monitoring: tcs.covenants.lisbon@bnpparibas.com | $15,155,744.30 | $20,844,255.70 | $36,000,000.00 |
DANISH SHIP FINANCE A/S Langebrogade 5 1411 Copenhagen K Denmark Email: OLS@skibskredit.dk / FSB@skibskredit.dk Attn: Ole Stærgaard / Frederik Staal Bundgaard | $15,155,744.30 | $20,844,255.70 | $36,000,000.00 |
Lender | Revolving Credit Commitment | Term Loan Facility Commitment | Total |
|---|---|---|---|
DNB CAPITAL LLC 30 Hudson Yards, 81st Floor New York, New York 10001 Email: Cathleen.Buckley@dnb.no / nyloanscsd@dnb.no Attn: Cathleen Buckley | $15,155,744.30 | $20,844,255.70 | $36,000,000.00 |
ING CAPITAL LLC 1133 Avenue of America New York, NY 10036 Email: michael.choina@ing.com Telephone: +16464247598 Attn: Michael Choina | $15,155,744.30 | $20,844,255.70 | $36,000,000.00 |
OVERSEA-CHINESE BANKING CORPORATION LIMITED OCBC London Branch The Gilbert, 2nd Floor 40 Finsbury Square London, EC2A 1PX United Kingdom Attn: Weilong Liang / Callum Daniels Email: WeilongLiang@ocbc.com / Callumdaniels@ocbc.com | $15,155,744.30 | $20,844,255.70 | $36,000,000.00 |
Total | $155,085,121.00 | $213,294,303.00 | $368,379,424.00 |
Swap Bank | Booking Office |
|---|---|
BNP PARIBAS | 9 Rue du Débarcadère 93500 PANTIN (France) Attention: BNP PARIBAS Email: paris.cib.cbe.ctm.transportation@bnpparibas.com |
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: yannick.legourieres@ca-cib.com / alexander.foley@ca-cib.com / NYShipFinance@ca-cib.com |
DNB BANK ASA | 30 Hudson Yards, 81st Floor New York, New York 10001 |
ING CAPITAL MARKETS LLC | 1133 Avenue of the Americas New York, New York 10036 Attention: Juan Carlos Vallarino / Legal Department Telephone: (646) 424-6606 /(646) 424-6000 Facsimile (646) 424-6248 E-mail: juan.vallarino@ing.com/ ISDANotices@ing.com |
ING BANK N.V. | Foppingadreef 7, 1102 BD Amsterdam, P.O. Box 1800, 1000 BV Amsterdam, The Netherlands Attention: Head of Legal Financial Markets Email: isdanotices@ing.com |
NORDEA BANK ABP | c/o Nordea Danmark, Filial af Nordea Bank Abp, Finland 7288 Derivatives Services Postbox 850 DK-0900 Copenhagen C Denmark otc@nordea.com |
Swap Bank | Booking Office |
|---|---|
OVERSEA-CHINESE BANKING CORPORATION LIMITED, acting out of its London Branch | The Gilbert, 2nd Floor 40 Finsbury Square London EC2A 1PX United Kingdom Attention: Alfred Chapinal |
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) | Filipstad Brygge 1 P.O. Box 1843 Vika NO-0123 Oslo, Norway Attention: Gjert Moberg/Kari Norheim Kvistad Email: Gjert.moberg@seb.no kari.kvistad@seb.no with copies to SEB Structured Credit Operations: sco@se.no Telephone: +47 99490831/+47 99439989 |
Agent | NORDEA BANK ABP, NEW YORK BRANCH 1211 Avenue of the Americas, 23rd floor New York, NY 10036 Attention: Shipping, Offshore and Oil Services Telephone: (917) 969-1942 Email: agency.soosid@nordea.com and DLNY-NY-CADLoan@nordea.com |
Security Trustee | NORDEA BANK ABP, NEW YORK BRANCH 1211 Avenue of the Americas, 23rd floor New York, NY 10036 Attention: Shipping, Offshore and Oil Services Telephone: (917) 969-1942 Email: agency.soosid@nordea.com and DLNY-NY-CADLoan@nordea.com |
# | Vessel Name | Owner | Flag* | Official Number | Gross Tonnage | Net Tonnage | Shipyard | Build Year | Term Loan Facility Tranche | Revolving Credit Facility Tranche |
|---|---|---|---|---|---|---|---|---|---|---|
1 | COUGAR | Dorian Shanghai LPG Transport LLC | BMA | 7000749 | 47,379 | 18,644 | Hyundai SHI | 2015 | $18,750,547.13 | $13,631,135.12 |
2 | CHALLENGER | Dorian Explorer LPG Transport LLC | BMA | 7000796 | 47,379 | 18,644 | Hyundai SHI | 2015 | $19,605,435.29 | $14,252,615.44 |
3 | CONCORDE | Concorde LPG Transport LLC | BMA | 7000781 | 48,060 | 18,641 | Hyundai HI | 2015 | $19,605,435.29 | $14,252,615.44 |
4 | CONTINENTAL | Dorian Sao Paulo LPG Transport LLC | BMA | 7000751 | 47,379 | 18,644 | Hyundai SHI | 2015 | $19,605,435.29 | $14,252,615.44 |
5 | CONSTITUTION | Dorian Ulsan LPG Transport LLC | BMA | 7000782 | 47,379 | 18,644 | Hyundai SHI | 2015 | $19,605,435.29 | $14,252,615.44 |
6 | COMMODORE | Dorian Amsterdam LPG Transport LLC | BMA | 7000780 | 47,379 | 18,644 | Hyundai SHI | 2015 | $18,750,547.13 | $13,631,135.12 |
7 | CHEYENNE | Dorian Monaco LPG Transport LLC | BMA | 7000790 | 47,379 | 18,644 | Hyundai SHI | 2015 | $19,605,435.29 | $14,252,615.44 |
8 | CRESQUES | Dorian Dubai LPG Transport LLC | BMA | 7000776 | 48,963 | 17,339 | Hanwha Ocean | 2015 | $19,462,659.32 | $14,174,815.43 |
9 | CORVETTE | Corvette LPG Transport LLC | BMA | 7000668 | 48,060 | 18,641 | Hyundai HI | 2015 | $19,605,435.29 | $14,252,615.44 |
10 | COMET | Comet LPG Transport LLC | BMA | 7000664 | 48,060 | 18,641 | Hyundai HI | 2014 | $19,092,502.39 | $13,879,727.25 |
11 | COMMANDER | Commander LPG Transport LLC | BMA | 7000795 | 48,060 | 18,641 | Hyundai HI | 2015 | $19,605,435.29 | $14,252,615.44 |
| Total | | | | | | | | $213,294,303.00 | $155,085,121.00 |
* BMA = Bahamas
168
#540803290_v15
To:[AGENT], as Agent
[Address]
[Date]
DRAWDOWN NOTICE
| 2 | We request to borrow an Advance as follows: |
| (a) | Amount: US$[–]; |
| (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 Repeating Representations and those of the Borrower or any other Loan 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; [and] |
| (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] |
169
| (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]. |
| 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.]1 |
| 6 | [We agree to pay any amounts required to be paid by us under Clause 22.1(a) and Clause 22.2 of the Loan Agreement if the Advance is not borrowed on the date specified in this Drawdown Notice for any reason other than a default by the Lender claiming the indemnity.]2 |
_________________________________
Name:
Title:
for and on behalf of
DORIAN LPG FINANCE LLC
1 Only to be included in drawdowns for the Term Loan Advance.
2 To be included in the drawdown notice delivered for the Closing Date.
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The following are the documents referred to in Clause 9.1(a):
| 1 | A duly executed original of this Agreement. |
| 3 | Copies of the constitutional documents and each amendment thereto of each of the Loan Parties, certified as of a date reasonably near the Closing Date 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 Loan 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 any Drawdown Notice and other notices required under the Finance Documents, in each case certified as of the Closing 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 each of the Loan 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 Loan Party. |
| 7 | Copies of all consents which a Loan Party requires to enter into, or make any payment under, any Finance Document, each certified as of a date reasonably near the Closing 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. |
| 8 | 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. |
| 9 | On or before the Closing Date, a Beneficial Ownership Certification in relation to any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation. |
171
The following are the documents referred to in Clause 9.2(a):
| 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) (provided that the Mortgage may be delivered upon the making of the relevant Term Loan Advance on the Drawdown Date). |
| 2 | A bringdown certificate in respect of the constitutional documents, resolutions and incumbency of each of the Loan Parties delivered under Part A of this Schedule 4, certified as of the relevant Drawdown Date by an authorized person of such party. |
| 3 | Documentary evidence that (provided that other than with respect to paragraphs (e) and (f) below, such evidence may be delivered upon the making of the relevant Term Loan Advance on the Drawdown Date): |
| (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 (or all filings have been made to ensure such Security Interests are) 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 |
| 4 | 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. |
172
| 6 | 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 |
| (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. |
| 7 | A copy of the Green Passport relating to each Vessel. |
| 8 | Copies of the appraisals relating to such Vessel as required to determine the Fair Market Value of the Vessels in accordance with Clause 2.1(a). |
| 9 | Copies of any Charters relating to each Vessel. |
| 10 | Copies of any account agreements relating to the Earnings Accounts, each certified as of a date reasonably near the Borrowing Date by an officer of the Borrower as being a true and correct copy thereof. |
| 11 | 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. |
| 12 | A Compliance Certificate, setting forth (among other things) (a) compliance with the covenants set forth in Clause 12 (Financial Covenants) for the period ended March 31, 2026, and (b) compliance with Clause 15 (Collateral Maintenance Ratio). |
| 13 | A favorable opinion of Watson Farley & Williams LLP, New York and Marshall Islands counsel for the Loan Parties, in form, scope and substance satisfactory to the Creditor Parties (provided any such legal opinion relating to Finance Documents which are delivered upon the making of the Term Loan Advance in respect of a Vessel may also be delivered upon the making of the relevant Term Loan Advance on the Drawdown Date). |
| 14 | 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 (provided that such legal opinions relating to Finance Documents which are delivered upon the making of the Term Loan Advance in respect of a Vessel may also be delivered upon the making of the relevant Term Loan Advance on the Drawdown Date). |
173
The following are the documents referred to in Clause 9.2(b):
| 2 | A copy of the constitutional documents and each amendment thereto of the relevant Accordion Vessel Owner, certified as of the relevant Accordion Effective 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 Accordion 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 Loan Parties authorizing the execution of the relevant Accordion Amendment and the other Finance Documents described in this Part C, in each case certified as of the Accordion Effective 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 C. |
| 6 | A bringdown certificate in respect of the incumbency certificate in respect of the officers and directors (or equivalent) of each of the Loan 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 C are executed on behalf of a Loan Party. |
| 8 | Copies of all consents which a Loan Party requires to enter into, or make any payment under, any Finance Document described in this Part C, each certified as of the Accordion 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 (if applicable); |
| (c) | an Earnings Assignment; |
174
| (d) | an Insurance Assignment; |
| (e) | a Mortgage (provided that the Mortgage may be delivered upon the making of the relevant Accordion Advance on the Drawdown Date); |
| (f) | a Shares Pledge; |
| (g) | a Manager’s Undertaking; |
| (h) | a Note; and |
| (i) | any Subordination Agreement. |
| 10 | Documentary evidence that (provided that other than with respect to paragraphs (e) and (f) below, such evidence may be delivered upon the making of the relevant Accordion Advance on the Drawdown Date): |
| (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 (or all filings have been made to ensure such Security Interests are) 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 |
175
| 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: |
| (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 | Copies of the appraisals relating to such Accordion Vessel required by Clause 2.6(d). |
| 18 | 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. |
| 19 | 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. |
| 20 | 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. |
| 21 | A favorable opinion of Watson Farley & Williams LLP (or another law firm acceptable to the Agent), New York and Marshall Islands counsel for the Loan Parties, in form, scope and substance satisfactory to the Creditor Parties (provided any such legal opinion relating to Finance Documents which are delivered upon the making of the Accordion Advance may also be delivered upon the making of the relevant Accordion Advance on the Drawdown Date). |
| 22 | Favorable legal opinions from lawyers appointed by the Borrower or the Agent on such matters concerning the laws of such relevant jurisdictions (including the flag of the Vessel) as the Agent |
176
| may require (provided that such legal opinions relating to Finance Documents which are delivered upon the making of the Accordion Advance may also be delivered upon the making of the relevant Accordion Advance on the Drawdown Date). |
177
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 Loan 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. |
178
| 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. |
| 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 Loan 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 Loan 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; |
179
| (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. |
| 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:
180
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.
181
Clarksons Valuations Limited
Gibsons Shipbrokers
Fearnleys A.S.
Braemar ACM Shipbroking
Simpson Spence Young Ltd
Arrow Shipbroking Group
Lorentzen & Co
182
Security Interests in the Equity Interests of the Excluded Subsidiaries
183
NORDEA BANK ABP, NEW YORK BRANCH, as Agent
[Address]
[Date]
Dear Sirs
Loan Agreement dated as of [–], 2026 (the “Loan Agreement”) among, inter alia, Dorian LPG Finance LLC, as Borrower, the Guarantors referred to therein, the Lenders and 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,
[Swap Bank]
.................................................
Title:
Acknowledged and Agreed:
DORIAN LPG FINANCE LLC
.................................................
Name:
Title:
184
Repayment / Reduction Date | Aggregate Repayment / Reduction Amount |
| Term Loan Repayment | Balance Term Loan Outstanding | Balance Term Loan Commitments |
| Revolving Commitments Reduction | Balance Revolving Commitments |
| Total Facility Commitments |
|---|---|---|---|---|---|---|---|---|---|---|
Closing |
|
|
| $193,831,644.00 | $213,294,303.00 |
|
| $155,085,121.00 |
| $368,379,424.00 |
28-Sep-26 | $2,180,751.12 |
| $1,411,571.95 | $192,420,072.05 | $211,882,731.05 |
| $769,179.15 | $154,315,941.85 |
| $366,198,672.90 |
28-Dec-26 | $8,501,295.34 |
| $5,500,000.00 | $206,382,731.05 | $206,382,731.05 |
| $3,001,295.34 | $151,314,646.51 |
| $357,697,377.56 |
26-Mar-27 | $8,501,295.34 |
| $5,500,000.00 | $200,882,731.05 | $200,882,731.05 |
| $3,001,295.34 | $148,313,351.17 |
| $349,196,082.22 |
28-Jun-27 | $8,501,295.34 |
| $5,500,000.00 | $195,382,731.05 | $195,382,731.05 |
| $3,001,295.34 | $145,312,055.83 |
| $340,694,786.88 |
27-Sep-27 | $8,501,295.34 |
| $5,500,000.00 | $189,882,731.05 | $189,882,731.05 |
| $3,001,295.34 | $142,310,760.49 |
| $332,193,491.54 |
27-Dec-27 | $8,501,295.34 |
| $5,500,000.00 | $184,382,731.05 | $184,382,731.05 |
| $3,001,295.34 | $139,309,465.15 |
| $323,692,196.20 |
27-Mar-28 | $8,501,295.34 |
| $5,500,000.00 | $178,882,731.05 | $178,882,731.05 |
| $3,001,295.34 | $136,308,169.81 |
| $315,190,900.86 |
26-Jun-28 | $8,501,295.34 |
| $5,500,000.00 | $173,382,731.05 | $173,382,731.05 |
| $3,001,295.34 | $133,306,874.47 |
| $306,689,605.52 |
26-Sep-28 | $8,501,295.34 |
| $5,500,000.00 | $167,882,731.05 | $167,882,731.05 |
| $3,001,295.34 | $130,305,579.13 |
| $298,188,310.18 |
26-Dec-28 | $8,501,295.34 |
| $5,500,000.00 | $162,382,731.05 | $162,382,731.05 |
| $3,001,295.34 | $127,304,283.79 |
| $289,687,014.84 |
26-Mar-29 | $8,501,295.34 |
| $5,500,000.00 | $156,882,731.05 | $156,882,731.05 |
| $3,001,295.34 | $124,302,988.45 |
| $281,185,719.50 |
26-Jun-29 | $8,501,295.34 |
| $5,500,000.00 | $151,382,731.05 | $151,382,731.05 |
| $3,001,295.34 | $121,301,693.11 |
| $272,684,424.16 |
26-Sep-29 | $8,501,295.34 |
| $5,500,000.00 | $145,882,731.05 | $145,882,731.05 |
| $3,001,295.34 | $118,300,397.77 |
| $264,183,128.82 |
26-Dec-29 | $8,501,295.34 |
| $5,500,000.00 | $140,382,731.05 | $140,382,731.05 |
| $3,001,295.34 | $115,299,102.43 |
| $255,681,833.48 |
26-Mar-30 | $8,501,295.34 |
| $5,500,000.00 | $134,882,731.05 | $134,882,731.05 |
| $3,001,295.34 | $112,297,807.09 |
| $247,180,538.14 |
26-Jun-30 | $8,501,295.34 |
| $5,500,000.00 | $129,382,731.05 | $129,382,731.05 |
| $3,001,295.34 | $109,296,511.75 |
| $238,679,242.80 |
26-Sep-30 | $8,501,295.34 |
| $5,500,000.00 | $123,882,731.05 | $123,882,731.05 |
| $3,001,295.34 | $106,295,216.41 |
| $230,177,947.46 |
26-Dec-30 | $8,501,295.34 |
| $5,500,000.00 | $118,382,731.05 | $118,382,731.05 |
| $3,001,295.34 | $103,293,921.07 |
| $221,676,652.12 |
26-Mar-31 | $8,501,295.34 |
| $5,500,000.00 | $112,882,731.05 | $112,882,731.05 |
| $3,001,295.34 | $100,292,625.73 |
| $213,175,356.78 |
26-Jun-31 | $8,501,295.34 |
| $5,500,000.00 | $107,382,731.05 | $107,382,731.05 |
| $3,001,295.34 | $97,291,330.39 |
| $204,674,061.44 |
26-Sep-31 | $8,501,295.34 |
| $5,500,000.00 | $101,882,731.05 | $101,882,731.05 |
| $3,001,295.34 | $94,290,035.05 |
| $196,172,766.10 |
26-Dec-31 | $8,501,295.34 |
| $5,500,000.00 | $96,382,731.05 | $96,382,731.05 |
| $3,001,295.34 | $91,288,739.71 |
| $187,671,470.76 |
26-Mar-32 | $8,501,295.34 |
| $5,500,000.00 | $90,882,731.05 | $90,882,731.05 |
| $3,001,295.34 | $88,287,444.37 |
| $179,170,175.42 |
26-Jun-32 | $8,501,295.34 |
| $5,500,000.00 | $85,382,731.05 | $85,382,731.05 |
| $3,001,295.34 | $85,286,149.03 |
| $170,668,880.08 |
26-Sep-32 | $8,501,295.34 |
| $5,500,000.00 | $79,882,731.05 | $79,882,731.05 |
| $3,001,295.34 | $82,284,853.69 |
| $162,167,584.74 |
26-Dec-32 | $8,501,295.34 |
| $5,500,000.00 | $74,382,731.05 | $74,382,731.05 |
| $3,001,295.34 | $79,283,558.35 |
| $153,666,289.40 |
26-Mar-33 | $8,501,295.34 |
| $5,500,000.00 | $68,882,731.05 | $68,882,731.05 |
| $3,001,295.34 | $76,282,263.01 |
| $145,164,994.06 |
26-Jun-33 | $8,501,295.34 |
| $5,500,000.00 | $63,382,731.05 | $63,382,731.05 |
| $3,001,295.34 | $73,280,967.67 |
| $136,663,698.72 |
Maturity Date | $136,663,698.72 |
| $63,382,731.05 | $0.00 | $0.00 |
| $73,280,967.67 | $0.00 |
| $0.00 |
186
Appendix A
Form of Compliance Certificate
To: Nordea Bank Abp, New York Branch, as Agent
From: Dorian LPG Ltd., as Parent Guarantor
Dated [•]
Loan Agreement, dated [___], 2026 (the “Agreement”)
| 1) | 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. |
| 2) | I/We have reviewed (a) the [audited][unaudited] consolidated financial statements of the Parent Guarantor for the period ended _____________. |
| 3) | I/We confirm that for the period indicated above: |
| (a) | 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)] |
| (b) | 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)] |
| (c) | Minimum Shareholders’ Equity: the Parent Guarantor maintains minimum Shareholders’ Equity equal to $400,000,000, as evidence by the following: |
| (d) | Working Capital: The Parent Guarantor maintains positive Working Capital [Set out in reasonable detail computations as to compliance with Clause 12.5 (Working Capital)]. |
| 4) | [I/We confirm that, below are calculations setting forth the Collateral Maintenance Ratio as of the last day of the period indicated above, and based on such calculations, the Borrower was not required to provide additional Collateral or prepay part of the Loan under Clause 15. [Set out in reasonable detail computations as to compliance with Clause 15].]3 |
| 5) | 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 WHAT ACTION THE LOAN PARTIES HAVE TAKEN, ARE TAKING AND PROPOSE TO TAKE WITH RESPECT THERETO]]. |
3 To be included in fiscal Q2/Q4 Compliance Certificates only.
188
Signed on behalf of Dorian LPG Ltd.
By:
Name:
Title: [Chief Financial Officer]
189
Appendix B
Form of Sustainability Certificate
To: Crédit Agricole Corporate and Investment Bank, as Sustainability Coordinator
From: Dorian LPG Ltd., as Parent Guarantor
Dated [•]
Loan Agreement, dated [__], 2026 (the “Agreement”)
| 1) | 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. |
| 2) | I/We confirm that, as at the date hereof: |
| a. | the calculation of the Annual Efficiency Ratio (“AER”), calculated in accordance with the Poseidon Principles, 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: |
[⚫]
| b. | the 2023 IMO Strategy on Reduction of GHG Emissions from Ships is as follows: |
[⚫]
| c. | as demonstrated above, the AER is [not] below the applicable Poseidon Principles decarbonization trajectory aligned with the 2023 IMO Strategy on Regulation of GHG Emissions from Ships, resulting in a Sustainability Pricing Adjustment consisting of a 0.05% [increase][reduction] to the Margin from [Insert existing Margin] to [Insert new Margin]. |
| 3) | 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]
191
ACCORDION Commitment AGREEMENT
To:NORDEA BANK ABP, NEW YORK BRANCH, as Agent
From:[●] (the “Accordion Lender”)
Dated:[●]
Re: Loan Agreement dated [__], 2026
for Dorian LPG Finance LLC (the “Loan 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].4 |
| 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.]5 |
| 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]6. |
| 8 | This Accordion Commitment Agreement and any non-contractual obligations arising out of or in connection with it are governed by New York law. |
| 9 | This Agreement has been entered into on the date stated at the beginning of this Agreement. |
4 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
5 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
6 This is applicable to a bank or financial institution which is not an original Lender but becomes an Accordion Lender under the Loan Agreement.
193
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]
194
[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 [●].
NORDEA BANK ABP, NEW YORK BRANCH, as Agent
By: _________________________
Name:
Title:
195
Exhibit 31.1
Rule 13a-14(a)/15d-14(a) Certification of the Chief Executive Officer
I, John C. Hadjipateras, certify that:
1. | I have reviewed this quarterly report on Form 10-Q of Dorian LPG Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| (b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
/s/ John C. Hadjipateras |
John C. Hadjipateras |
Chief Executive Officer |
Dated: November 4, 2026
Exhibit 31.2
Rule 13a-14(a)/15d-14(a) Certification of the Chief Financial Officer
I, Theodore B. Young, certify that:
1. | I have reviewed this quarterly report on Form 10-Q of Dorian LPG Ltd.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of and for, the periods presented in this report; |
4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| (b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| (c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| (d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| (b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
/s/ Theodore B. Young |
Theodore B. Young |
Chief Financial Officer |
Dated: November 4, 2026
Exhibit 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of Dorian LPG Ltd. (the “Company”), on Form 10-Q for the quarterly period ended September 30, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, John C. Hadjipateras, Chief Executive Officer of the Company, certify, to the best of my knowledge, pursuant to Rule 13a-14(b) under the Securities and Exchange Act of 1934 and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| 1. | the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities and Exchange Act of 1934; and |
| 2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ John C. Hadjipateras |
John C. Hadjipateras |
Chief Executive Officer |
Dated: November 4, 2026
Exhibit 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of Dorian LPG Ltd. (the “Company”), on Form 10-Q for the quarterly period ended September 30, 2026, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Theodore B. Young, Chief Financial Officer of the Company, certify, to the best of my knowledge, pursuant to Rule 13a-14(b) under the Securities and Exchange Act of 1934 and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
| 1. | the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities and Exchange Act of 1934; and |
| 2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
/s/ Theodore B. Young |
Theodore B. Young |
Chief Financial Officer |
Dated: November 4, 2026