Dated 2 August 2022 as amended and restated on 15 June 2023 and as further amended and restated by an amendment and restatement agreement dated 2024
Execution version
Dated 2 August 2022 as amended and restated on 15 June 2023 and as further amended and restated by an amendment and restatement agreement dated 2024
$150,388,077
REVOLVING AND ACCORDION FACILITIES
FITZROY SHIPCO LLC
▇▇▇▇▇▇ SHIPCO LLC
CROMARTY SHIPCO LLC
DOGGER SHIPCO LLC
▇▇▇▇▇ SHIPCO LLC
VIKING SHIPCO LLC
TRAMORE SHIPCO LLC
as joint and several Original Borrowers
and as Hedge Guarantors
ARDMORE SHIPPING LLC
as Corporate Guarantor
ARDMORE SHIPPING CORPORATION
as Parent Guarantor
The Banks and Financial Institutions
listed in Schedule 2, Part B
as Lenders
the banks and financial institutions
listed in Schedule 2, Part B
as Hedge Counterparties
ABN AMRO BANK N.V.
crÉdit agricole corporate and investment bank
as Mandated Lead Arrangers
ABN AMRO BANK N.V.
as Facility Agent
ABN AMRO BANK N.V.
as Security Agent
and
ABN AMRO BANK N.V.
as Sustainability Coordinator
relating to the financing or refinancing of m.t.s.
"ARDMORE SEAVALIANT", "ARDMORE SEAVENTURE", "ARDMORE CHEROKEE", "ARDMORE CHEYENNE", "ARDMORE DEFENDER", "ARDMORE SEAVANGUARD" and "ARDMORE EXPORTER"
Index
Schedules
Execution
THIS AGREEMENT is made on 2 August 2022 as amended and restated on 15 June 2023 and as further amended and restated by an amendment and restatement agreement dated 2024
| (3) | ARDMORE SHIPPING CORPORATION, a corporation incorporated in the Republic of the ▇▇▇▇▇▇▇▇ Islands whose registered address is at The Trust Company of the ▇▇▇▇▇▇▇▇ Islands, Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, ▇▇▇▇▇▇▇▇ Islands MH 96960 as a guarantor (the "Parent Guarantor") |
| (4) | THE COMPANIES listed in Part A (The Obligors) of Schedule 2 (The Parties) as hedge guarantors (the "Hedge Guarantors") |
| (5) | ABN AMRO BANK N.V. and CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK as mandated lead arrangers (the "Mandated Lead Arrangers") |
| (6) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Part B of Schedule 2 (The Parties) as lenders (the "Original Lenders") |
| (7) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Part B of Schedule 2 (The Parties) as hedge counterparties (the "Hedge Counterparties") |
| (8) | ABN AMRO BANK N.V., acting in such capacity through its office at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as agent for the other Finance Parties (the "Facility Agent") |
| (9) | ABN AMRO BANK N.V., acting in such capacity through its office at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as security agent for the Secured Parties (the "Security Agent") |
| (10) | ABN AMRO BANK N.V., acting in such capacity through its office at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ as sustainability coordinator (the "Sustainability Coordinator") |
| (A) | The Lenders have agreed to make available to the Borrowers loan facilities of up to $150,388,077 comprising: |
| (B) | The Hedge Counterparties may enter into interest rate swap transactions with the Borrowers from time to time to hedge the Borrowers' exposure under this Agreement to interest rate fluctuations. |
OPERATIVE PROVISIONS
| 1 | Definitions and Interpretation |
| 1.1 | Definitions |
In this Agreement:
| (a) | the proposed Accordion Facility Date specified in the relevant Accordion Facility Notice; and |
| (b) | the date on which the Facility Agent executes the relevant Accordion Facility Notice. |
| (a) | each Accordion Facility Notice; |
| (b) | any Finance Document; |
| (c) | any other document reasonably required by the Facility Agent (acting on the instructions of the Lenders) as a condition to the occurrence of any Accordion Facility Date; and |
| (d) | any other document designated as such by the Facility Agent and the Borrowers. |
| (b) | that is registered in the name of an Additional Borrower on an Approved Flag and classed with an Approved Classification Society. |
| (a) | in relation to Ship A and Ship B, +A1, Chemical Carrier, Oil Carrier, ESP, Ⓔ +AMS, +ACCU, CPS, CSR, AB-CM, BWE, CPP, CRC, RES, RRDA, RW, TCM, UWILD, VEC-L; |
| (b) | in relation to Ship C and Ship D, +A1, Chemical Carrier, Oil Carrier, ESP, Ⓔ + AMS, + ACCU, CPS, BWT, CPP, CRC, GP, RRDA, RW, TCM, UWILD, VEC; |
| (c) | in relation to Ship E, A1 Chemical Carrier, Oil Carrier, ESP, AMS, ACCU CPS CSR, BWE, BWT, CRC(I) RRDA, SPMA, TCM, UWILD; |
| (d) | in relation to Ship F, +A1, Chemical Carrier, Oil Carrier, ESP, Ⓔ,+AMS, +ACCU, CPS,CSR, AB-CM, RRDA, BWE,VEC-L, UWILD, TCM, CRC, RES, CPP, RW |
| (e) | in relation to Ship G, +A1 Tanker for chemicals and oil, BIS, BWM(E(s)) Clean, COAT-PSPC (B), CSR, E0, ESP, ETC, SPM, TMON, VCS (2, B), |
with the Approved Classification Society.
| (a) | in relation to the Revolving Facility, the date falling 3 Months before the Termination Date; and |
| (b) | in relation to any Accordion Facility, the date falling 12 months after the date of the Second Amendment and Restatement Agreement. |
| (a) | the amount of its participation in the outstanding Advances under that Facility; and |
| (b) | in relation to any proposed Utilisation, the amount of its participation in any other Advance that is due to be made under that Facility on or before the proposed Utilisation Date. |
| (c) | in relation to the United Kingdom, the UK Bail-In Legislation. |
| (b) | any similar blocking or anti-boycott law applicable to that Finance Party. |
| (a) | in respect of any Compounded Rate Loan, any amount specified as such in the Benchmark Terms; and |
| (b) | In respect of any Term SOFR Loan, the amount (if any) by which: |
exceeds
| (a) | any date for payment or purchase of an amount relating to a Compounded Rate Loan; |
| (b) | the determination of the first day or the last day of an Interest Period for a Compounded Rate Loan or otherwise in relation to the determination of the length of such an Interest Period; or |
| (c) | the fixing of an interest rate in respect of a Term SOFR Loan, |
| (b) | the climate alignment of that Ship for such calendar year: |
| (a) | is, or is scheduled to become, payable under any Finance Document; and |
| (b) | relates to a Compounded Rate Loan. |
| (a) | is agreed in writing by the Borrowers and the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of the Majority Lenders); |
| (b) | specifies the relevant terms which are expressed in this Agreement to be determined by reference to the Benchmark Terms; and |
| (c) | has been made available to the Borrowers and each Finance Party. |
"Compounded Reference Rate" means, in relation to any RFR Banking Day during the Interest Period of a Compounded Rate Loan, the percentage rate per annum which is the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day.
| (a) | is agreed in writing by the Borrower, the Facility Agent (in its own capacity) and the Facility Agent (acting on the instructions of the Majority Lenders); |
| (b) | specifies a calculation methodology for that rate; and |
| (c) | has been made available to the Borrowers and each Finance Party. |
| (a) | any member of the Group or any of its advisers; or |
| (b) | another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group 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:
| (i) | information that: |
| (A) | is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 47 (Confidentiality); or |
| (B) | is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or |
| (ii) | any Funding Rate. |
| (c) | any other law or regulation which implements Basel III. |
| (b) | which has otherwise rescinded or repudiated a Finance Document; or |
| (c) | with respect to which an Insolvency Event has occurred and is continuing, |
unless, in the case of paragraph (a) above:
| (i) | its failure to pay is caused by: |
| (A) | administrative or technical error; or |
| (B) | a Disruption Event; and |
| (ii) | payment is made within five Business Days of its due date; or |
| (iii) | the Lender is disputing in good faith whether it is contractually obliged to make the relevant payment. |
| (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, |
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
| (a) | the following, save to the extent that any of them is, with the prior written consent of the Facility Agent, pooled or shared with any other person: |
| (i) | all freight, hire and passage moneys including, without limitation, all moneys payable under, arising out of or in connection with a Charter or a related guarantee; |
| (ii) | the proceeds of the exercise of any lien on sub-freights; |
| (iii) | compensation payable to a Borrower or the Security Agent in the event of requisition of that Ship for hire or use; |
| (iv) | remuneration for salvage and towage services; |
| (v) | demurrage and detention moneys; |
| (vii) | all moneys which are at any time payable under any Insurances in relation to loss of hire; |
| (viii) | all monies which are at any time payable to a Borrower in relation to general average contribution; and |
| (a) | an account in the name of that Borrower with the Account Bank designated "Earnings Account"; |
| (c) | any sub-account of any account referred to in paragraphs (a) or (b) above. |
| (a) | any Lender; or |
| (a) | any release, emission, spill or discharge of Environmentally Sensitive Material that is: |
| (i) | within a Ship or from a Ship; and |
| (ii) | into any other vessel or into or upon the air, water, land or soils (including the seabed) or surface water; or |
| (b) | by an Approved Valuer appointed by the Borrowers; |
| (c) | with or without physical inspection of that Ship or vessel (as the Facility Agent may require); 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 Charter, |
| (a) | sections 1471 to 1474 of the Code or any associated regulations; |
| (a) | any letter or letters dated on or about the date of this Agreement between the Facility Agent and the Borrowers or Parent Guarantor setting out any of the fees referred to in Clause 13 (Fees); and |
| (b) | any letter or letters dated on or about the date of the Second Amendment and Restatement Agreement between each of the Mandated Lead Arrangers and the Borrowers or Parent Guarantor setting out any of the fees referred to in clause 7 (fees) of the Second Amendment and Restatement Agreement. |
| (a) | this Agreement; |
| (b) | any Fee Letter; |
| (c) | the Membership Interests Security; |
| (d) | any Mortgage; |
| (e) | any General Assignment; |
| (f) | any Accounts Security; |
| (g) | any Manager's Undertaking; |
| (h) | any Accordion Facility Finance Documents; |
| (i) | any Hedging Agreement; |
| (j) | any Hedging Agreement Assignment; |
| (k) | any Sustainability Certificate; |
| (l) | any Compounded Rate Supplement; |
| (m) | any Compounded Methodology Supplement; |
| (n) | the First Amendment and Restatement Agreement; |
| (o) | the Second Amendment and Restatement Agreement; |
| (q) | any other document designated as such by the Facility Agent and the Borrowers. |
| (a) | moneys borrowed and debit balances at banks or other financial institutions; |
| (b) | any amount raised by acceptance under any acceptance credit facility or dematerialised equivalent; |
| (c) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
| (e) | receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
| (h) | any counter-indemnity obligation in relation to a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; |
| (i) | any amount raised by the issue of shares which are redeemable (other than at the option of the Issuer) before the Termination Date or are otherwise classified as borrowings under GAAP; and |
| (j) | the amount of any liability in relation to any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above. |
| (a) | is dissolved (other than pursuant to a consolidation, amalgamation or merger); |
| (b) | becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; |
| (c) | makes a general assignment, arrangement, or composition with or for the benefit of its creditors; |
| office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official; |
| (f) | results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or |
| (g) | is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof; |
| (h) | has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger); |
| (k) | causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or |
| (l) | takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts. |
| (a) | either: |
| (a) | either: |
| (i) | the applicable Term SOFR (as of the Specified Time) for the longest period (for which Term SOFR is available) which is less than the Interest Period of that Term SOFR Loan; or |
| (b) | the applicable Term SOFR (as of the Specified Time) for the shortest period (for which Term SOFR is available) which exceeds the Interest Period of that Term SOFR Loan. |
| (a) | any Original Lender; and |
which in each case has not ceased to be a Party in accordance with this Agreement.
| (a) | if the Loan has not yet been advanced, a Lender or Lenders whose Commitments aggregate more than 66⅔ per cent. of the Total Commitments; or |
| (a) | the business, operations, property, condition (financial or otherwise) or prospects of any member of the Group or the Group as a whole; or |
| (b) | the ability of any Transaction Obligor to perform its obligations under any Finance Document; or |
"Membership Interests Security" means, (i) in relation to an Original Borrower, a document from the Corporate Guarantor creating Security in respect of the membership interests in that Original Borrower in agreed form or (ii) in relation to an Additional Borrower, a document creating Security in respect of the membership interests in that Additional Borrower if that Additional Borrower is a limited liability company or a document creating Security in respect of the shares in that Additional Borrower if that Additional Borrower is a limited company or corporation, in agreed form.
| (a) | Other than where paragraph (b) applies: |
| (ii) | if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and |
| (iii) | if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end. |
The above rules will only apply to the last Month of any period.
| (a) | the consent, waiver or amendment in question requires the approval of all of the Lenders; and |
| (b) | Lenders whose commitments aggregate more than 66⅔ per cent. of the Total Commitments have consented or agreed to such waiver or amendment. |
| (a) | which is a time or consecutive voyage charter; |
| (b) | the duration of which does not exceed and is not capable of exceeding, by virtue of any optional extensions, 14 months; |
| (c) | which is entered into on bona fide arm's length terms at the time at which that Ship is fixed; and |
| (d) | in relation to which not more than two months' hire is payable in advance, |
| (a) | any Financial Indebtedness incurred under the Finance Documents; |
| (b) | until the first Utilisation Date, the Existing Indebtedness; |
| (d) | any Financial Indebtedness reasonably incurred in connection with the normal commercial operation of the Ship. |
| (a) | Security created by the Finance Documents; |
| (c) | liens for unpaid master's and crew's wages in accordance with usual maritime practice and not being enforced through arrest; |
| (d) | liens for salvage; |
| (e) | liens for master's disbursements incurred in the ordinary course of trading and not being enforced through arrest; and |
| (f) | any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of any Ship: |
| (i) | not as a result of any default or omission by any Obligor; |
| (ii) | not being enforced through arrest; and |
| (iii) | subject, in the case of liens for repair or maintenance, to Clause 28.14 (Restrictions on chartering, appointment of managers etc.), |
provided such lien does not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps and for the payment of which adequate reserves are held and provided further that such proceedings do not give rise to a material risk of the relevant Ship or any interest in it being seized, sold, forfeited or lost).
"Recognised Organisation" has the meaning given to such term in the Sustainability Pricing Adjustment Schedule.
| (a) | its jurisdiction of incorporation; |
| (c) | any jurisdiction where it conducts its business; and |
| (d) | the jurisdiction whose laws govern the perfection of any of the Transaction Security created, or intended to be created, under the Finance Documents to which it is a party. |
| (a) | each Obligor; |
| (b) | each subsidiary of any Obligor; and |
| (c) | all respective directors, officers, employees, agents and representatives of each of the persons mentioned in paragraphs (a) to (b) above. |
| (b) | any arrest, capture, seizure or detention of that Ship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the relevant Borrower. |
| (a) | listed on or directly or indirectly owned or controlled by a person or persons listed on any Sanctions List; or |
| (c) | otherwise a subject of Sanctions. |
| (b) | in relation to any other Lender, the amount of any Revolving Commitment transferred to it under this Agreement, |
to the extent not cancelled, reduced or transferred by it under this Agreement.
| (a) | made or to be made on the same day that a maturing Advance under the Revolving Facility is due to be repaid; |
| (b) | the aggregate amount of which is equal to or less than the amount of the maturing Advance under the Revolving Facility; and |
| (c) | made or to be made for the purpose of refinancing that maturing Advance under the Revolving Facility. |
| (a) | the Security Council of the United Nations; |
| (b) | the United States; |
| (c) | the United Kingdom; |
| (d) | the European Union; |
| (e) | any member state of the European Union (including, without limitation, The Netherlands and France); |
| (f) | any country in which any Obligor is registered or has material (financial or otherwise) interests or operations; and |
| (a) | the Transaction Security expressed to be granted in favour of the Security Agent as trustee for the Secured Parties and all proceeds of that Transaction Security; |
| (c) | the Security Agent's interest in any turnover trust created under the Finance Documents; |
except:
| (i) | rights intended for the sole benefit of the Security Agent; and |
| (ii) | any moneys or other assets which the Security Agent has transferred to the Facility Agent or (being entitled to do so) has retained in accordance with the provisions of this Agreement. |
"Servicing Party" means the Facility Agent or the Security Agent.
| (a) | the applicable Term SOFR as of the Specified Time and for a period equal in length to the Interest Period of that Term SOFR Loan; or |
| (b) | as otherwise determined pursuant to Clause 12.2 (Unavailability of Term SOFR), |
| (a) | actual, constructive, compromised, agreed or arranged total loss of that Ship; or |
| (b) | any Requisition. |
| (a) | in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of; |
| (b) | in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of: |
| (i) | the date on which a notice of abandonment is given to the insurers; and |
| (ii) | the date of any compromise, arrangement or agreement made by or on behalf of the relevant Borrower with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and |
| (c) | in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Facility Agent that the event constituting the total loss occurred. |
| (a) | a Finance Document; |
| (b) | a Pool Agreement (if any); or |
| (c) | any other document designated as such by the Facility Agent and the Borrower. |
| (a) | the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and |
| (b) | the date on which the Facility Agent executes the relevant Assignment Agreement or Transfer Certificate. |
| (a) | any value added tax imposed by the Value Added Tax Act 1994; |
| (b) | any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and |
| (c) | in relation to any other applicable Bail-In Legislation: |
| (ii) | any similar or analogous powers under that Bail-In Legislation. |
| 1.2 | Construction |
| (a) | Unless a contrary indication appears, a reference in this Agreement to: |
| (ii) | "assets" includes present and future properties, revenues and rights of every description; |
| (iii) | "contingent liability" means a liability which is not certain to arise and/or the amount of which remains unascertained; |
| (iv) | "document" includes a deed and also a letter or telex; |
| (v) | "expense" means any kind of cost, charge or expense (including all legal costs, charges and expenses) and any applicable Tax including VAT; |
| that part of the Loan for a period equal in length to the Interest Period of the Loan or that part of the Loan; |
| (viii) | a "group of Lenders" includes all the Lenders; |
| (ix) | "indebtedness" includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; |
| (xi) | "proceedings" means, in relation to any enforcement provision of a Finance Document, proceedings of any kind, including an application for a provisional or protective measure; |
| (xv) | a provision of law is a reference to that provision as amended or re-enacted from time to time; |
| (xvi) | a time of day is a reference to London time; |
| (xviii) | words denoting the singular number shall include the plural and vice versa; and |
| (xix) | "including" and "in particular" (and other similar expressions) shall be construed as not limiting any general words or expressions in connection with which they are used. |
| (c) | Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents. |
| (e) | A reference in this Agreement to a page or screen of an information service displaying a rate shall include: |
| (i) | any replacement page of that information service which displays that rate; and |
| (ii) | the appropriate page of such other information service which displays that rate from time to time in place of that information service, |
and, if such page or service ceases to be available, shall include any other page or service displaying that rate specified by the Facility Agent after consultation with the Borrower.
| (f) | A reference in this Agreement to a Central Bank Rate shall include any successor rate to, or replacement rate for, that rate. |
| (g) | Any Compounded Rate Supplement overrides anything in: |
| (i) | Schedule 15(Benchmark Terms); or |
| (ii) | any earlier Compounded Rate Supplement. |
| (h) | A Compounding Methodology Supplement relating to the Daily Non-Cumulative Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything relating to that rate in: |
| (i) | Schedule 16 (Daily Non-Cumulative Compounded RFR Rate) or Schedule 17 (Cumulative Compounded RFR Rate), as the case may be; or |
| (ii) | any earlier Compounding Methodology Supplement. |
| (i) | A Potential Event of Default is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived. |
| 1.3 | Construction of insurance terms |
In this Agreement:
| 1.4 | Agreed forms of Finance Documents |
References in Clause 1.1 (Definitions) to any Finance Document being in "agreed form" are to that Finance Document:
| (a) | in a form attached to a certificate dated the same date as this Agreement (and signed by each Borrower and the Facility Agent); or |
| 1.5 | Third party rights |
| (b) | Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time. |
| (d) |
| 2 | The Facilities |
| 2.1 | The Facilities |
Subject to the terms of this Agreement, the Lenders make available to the Borrowers:
| (a) | a dollar revolving credit facility in an aggregate amount not exceeding the Total Revolving Commitments; and |
| (b) | dollar revolving credit accordion facilities in an aggregate amount not exceeding the Total Accordion Facility Commitments. |
| 2.2 | Finance Parties' rights and obligations |
| (c) | A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents. |
| 2.3 | Borrowers' Agent |
| (ii) | each Finance Party to give any notice, demand or other communication to that Borrower and/or the Corporate Guarantor pursuant to the Finance Documents to the Parent Guarantor, |
and in each case each Borrower and/or the Corporate Guarantor shall be bound as though that Borrower and/or the Corporate Guarantor itself had given the notices and instructions (including, without limitation, any Utilisation Requests) or executed or made the agreements or effected the amendments, supplements or variations, or received the relevant notice, demand or other communication.
| 2.4 | Accordion Ships |
Subject to the terms of this Agreement, before the end of the Availability Period in respect of the Accordion Facilities, the Borrowers may utilise the Available Commitment in respect of an Accordion Facility provided that:
| (a) | the Borrowers have complied with Clause 6 (Establishment of an Accordion Facility); |
| (b) | the relevant Additional Borrower accedes to this Agreement in accordance with Clause 33.2 (Additional Borrowers); |
| (c) | the Accordion Ship owned by that Additional Borrower satisfies the Accordion Ship Criteria; |
| (d) | no Default has occurred and is continuing; and |
| 3 | Purpose |
| 3.1 | Purpose |
Each Borrower shall apply all amounts borrowed by it under the Facilities only for the purpose stated in the preamble (Background) to this Agreement.
| 3.2 | Monitoring |
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
| 4 | Conditions of Utilisation |
| 4.1 | Initial conditions precedent |
The Borrowers may not deliver the initial Utilisation Request unless the Facility Agent has received all of the documents and other evidence listed in Part A of Schedule 3 (Conditions Precedent) in form and substance satisfactory to the Facility Agent.
| 4.2 | Further conditions precedent |
The Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation) if on the date of the Utilisation Request and on the proposed Utilisation Date and before the Advance is made available:
| (a) | no Default is continuing or would result from the proposed Advance; |
| (b) | the Repeating Representations to be made by each Obligor are true; |
| (c) | no event described in paragraph (a) of Clause 8.6 (Mandatory prepayment or replacement on sale or Total Loss) has occurred in relation to any Ship; |
| (d) | the Borrowers are in compliance with Clause 29 (Security cover) immediately after the making of any Advance; |
| (e) | no breach of Clause 25 (Financial Covenants) has occurred or will occur as a result of the proposed Advance under an Accordion Facility; |
| (g) | in the case of an Advance under an Accordion Facility the Facility Agent has received, or is satisfied it will receive when that Advance is advanced, all of the documents and other evidence listed in Part C of Schedule 3 (Conditions Precedent) in form and substance satisfactory to the Facility Agent. |
| 4.3 | Notification of satisfaction of conditions precedent |
| 4.4 | Waiver of conditions precedent |
If the Lenders, at their discretion, permit the Loan to be borrowed before any of the conditions precedent referred to in Clause 4.1 (Initial conditions precedent) or Clause 4.2 (Further
conditions precedent) has been satisfied, the Borrowers shall ensure that that condition is satisfied within five Business Days after the relevant Utilisation Date or such later date as the Facility Agent, acting with the authorisation of the Lenders, may agree in writing with the Borrowers.
| 5 | Utilisation |
| 5.1 | Delivery of a Utilisation Request |
| (a) | The Borrowers may utilise the Facilities or any part of them by delivery to the Facility Agent a duly completed Utilisation Request not later than the Specified Time. |
| 5.2 | Completion of a Utilisation Request |
| (a) | Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: |
| (i) | it identifies the Facility to be utilised; |
| (ii) | the proposed Utilisation Date is a Business Day within the relevant Availability Period; |
| (iii) | the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and |
| (iv) | the proposed Interest Period complies with Clause 11 (Interest Periods). |
| (b) | Only one Advance may be requested in each Utilisation Request. |
| 5.3 | Currency and amount |
| (a) | The currency specified in a Utilisation Request must be dollars. |
| (b) | The amount of a proposed Loan must be an amount which is no more than: |
| (i) | in the case of the Revolving Facility, the Available Commitment in relation to the Revolving Facility; and |
| (ii) | in the case of an Accordion Facility, the Available Commitment in relation to the Accordion Facilities. |
| (c) | Subject to paragraph 5.3(d) below, the amount of any proposed Advance under the Revolving Facility, must be a minimum of $1,000,000. |
| (d) | The amount of the proposed Loan must be an amount which is not more than: |
| (i) | in the case of the Revolving Facility, the Available Facility in relation to the Revolving Facility; and |
| (ii) | in the case of an Accordion Facility, the Available Facility in relation to that Accordion Facility. |
| 5.4 | Lenders' participation |
| 5.5 | Cancellation of Commitments |
| (a) | The Revolving Commitments which are unutilised at the end of the Availability Period for the Revolving Facility shall then be cancelled. |
| (b) | The Accordion Facilities Commitments which are unutilised at the end of the Availability Period for the Accordion Facilities shall then be cancelled. |
| 5.6 | Payment to third parties |
The Facility Agent shall, on each Utilisation Date, pay to, or for the account of, the relevant Borrower which is to utilise the relevant Advance the amounts which the Facility Agent receives from the Lenders in respect of that Advance. That payment shall be made in like funds as the Facility Agent received from the Lenders in respect of that Advance to the account of a Borrower, the Corporate Guarantor or of the relevant Existing Facility Agent under the relevant Existing Facility Agreement which the Borrowers specify in the relevant Utilisation Request.
| 5.7 | Disbursement of Loan to third party |
A payment by the Facility Agent under Clause 5.6 (Payment to third parties) to a person other than a Borrower shall constitute the making of the Loan and the Borrowers shall at that time become indebted, as principal and direct obligor, to each Lender in an amount equal to that ▇▇▇▇▇▇'s participation in that Loan.
| 5.8 | Prepositioning of funds |
If, in respect of the Utilisation of any Advance, the Lenders, at the request of the Borrowers and on terms acceptable to all the Lenders and in their absolute discretion, preposition funds with any bank, each Borrower and each Guarantor:
| (b) | shall, without duplication, indemnify each Finance Party against any costs, loss or liability it may incur in connection with such arrangement. |
| 6 | Establishment of an Accordion Facility |
| 6.1 | Selection of Accordion Facility Lenders |
| (a) | Definitions |
In this Clause 6 (Establishment of an Accordion Facility):
| (a) | invites each Lender to participate in a proposed Accordion Facility; and |
| (b) | sets out the proposed Accordion Facility Terms applicable to the Accordion Facility and any fee or commission proposed to be payable to lenders under the proposed Accordion Facility. |
| (b) | Invitation to all Lenders under the Revolving Facility |
The Corporate Guarantor shall invite all Lenders under the Revolving Facility, in writing to become an Accordion Facility Lender on a pro rata basis, by delivery of the Accordion Facility Proposal to the Facility Agent and each of those Lenders.
| (c) | Lender's offer |
Any Lender which wishes to become an Accordion Facility Lender in respect of an Accordion Facility proposed in an Accordion Facility Proposal shall notify the Corporate Guarantor and the Facility Agent of the proposed Accordion Facility Commitment that it unconditionally offers to make available in respect of the proposed Accordion Facility no later than 5:00 p.m. on the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal.
| (d) | Expiry of ▇▇▇▇▇▇'s offer |
Each Participating Lender's offer under paragraph (c) above (as adjusted, if applicable, pursuant to paragraphs (e) or (f) below) in respect of the Accordion Facility proposed in the Accordion Facility Proposal shall, unless otherwise agreed by all the Participating Lenders under the Accordion Facility Proposal, expire on the earlier of:
| (i) | the day falling 30 Business Days after the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal; and |
| (ii) | the day falling 10 Business Days after the Accordion Facility Date in respect of the proposed Accordion Facility. |
| (e) | Scaleback of Lenders' offers |
If the aggregate amount of the proposed Accordion Facility Commitments offered by the Participating Lenders pursuant to paragraph (c) above in respect of the Accordion Facility proposed in the Accordion Facility Proposal exceeds the Proposed Facility Size set out in the Accordion Facility Proposal, those proposed Accordion Facility Commitments shall be reduced pro rata to the extent necessary, provided that any Lender who is a Participating Lender shall have a right of first refusal to be allocated such ▇▇▇▇▇▇'s Accordion Facility Proportion relating to the Proposed Facility Size not greater than the proportion borne by the aggregate of such ▇▇▇▇▇▇'s Commitments to the aggregate of the Commitments of all of the Lenders.
| (f) | Invitation to Participating Lenders if shortfall |
If there is an Accordion Facility Shortfall relating to the Proposed Facility Size set out in the Accordion Facility Proposal, the Corporate Guarantor shall invite each Participating Lender under the Accordion Facility Proposal to increase the proposed Accordion Facility Commitment offered by it in respect of the Accordion Facility proposed in the Accordion Facility Proposal by an amount no greater than that Accordion Facility Shortfall.
| (g) | Deadline for Participating Lenders to offer increase |
Each Participating Lender under the Accordion Facility Proposal shall notify the Corporate Guarantor and the Facility Agent of its offer of an increased proposed Accordion Facility Commitment (if any) pursuant to paragraph (f) above no later than 5:00 p.m. on the day falling 10 Business Days after the last day of the Accordion Facility Solicitation Period relating to the Accordion Facility Proposal.
| (h) | Wider invitation if further shortfall |
If there is a Further Accordion Facility Shortfall relating to the Proposed Facility Size set out in the Accordion Facility Proposal, the Corporate Guarantor may, in any manner, invite any Eligible Institution to offer proposed Accordion Facility Commitments in respect of the Accordion Facility proposed in the Accordion Facility Proposal in a maximum aggregate amount no greater than that Further Accordion Facility Shortfall.
| (i) | Participating Lender's Accordion Facility Commitment |
Each Participating Lender's Accordion Facility Commitment specified in the Accordion Facility Notice delivered in respect of the Accordion Facility proposed in the Accordion Facility Proposal shall, unless that Participating Lender agrees to be allocated an Accordion Facility Commitment in a lower amount, be in an amount equal to the amount of the proposed Accordion Facility Commitment offered by that Participating Lender in response to the Accordion Facility Proposal (as adjusted, if applicable, pursuant to paragraphs (e) or (f) above).
| (j) | Accordion Facility Terms |
The Accordion Facility Terms specified in the Accordion Facility Notice delivered in respect of the Accordion Facility and any fee or commission payable to the Accordion Facility Lenders under the Accordion Facility shall be the same as those set out in the Accordion Facility Proposal relating to the Accordion Facility.
| (k) | Amendment and withdrawal |
The Corporate Guarantor shall not amend the Accordion Facility Proposal but may withdraw the Accordion Facility Proposal at any time.
| (l) | Effect of withdrawal |
Withdrawal of the Accordion Facility Proposal shall terminate the process set out in this Clause 6 (Establishment of Accordion Facility) in respect of the Accordion Facility proposed in the Accordion Facility Proposal and the Accordion Facility shall not be established. Any withdrawal of an Accordion Facility Proposal shall not prohibit the Corporate Guarantor from delivering one or more new Accordion Facility Proposals at a later date but within the Availability Period for the Accordion Facility.
| 6.2 | Accordion Facility Commitment |
The Accordion Facility Commitments specified in the Accordion Facility Notice:
| (a) | must be in an amount of not less than $10,000,000; |
| (b) | must be in an amount that, when aggregated with all other Accordion Facility Commitments, does not exceed $62,000,000. |
| 6.3 | Delivery of the Accordion Facility Notice |
| (b) | The Accordion Facility Notice may not be delivered after the Availability Period. |
| 6.4 | Completion of the Accordion Facility Notice |
| (a) | The Accordion Facility Notice is irrevocable and will not be regarded as having been duly completed unless: |
| (i) | it sets out the Accordion Facility Terms applicable to the Accordion Facility; |
| (ii) | the Accordion Facility Terms applicable to the Accordion Facility comply with Clause 6.5 (Restrictions on Accordion Facility Terms and fees); and |
| (b) | No more than three Accordion Facilities may be requested. |
| 6.5 | Restrictions on Accordion Facility Terms and fees |
| (a) | Currency |
An Accordion Facility shall be denominated in dollars.
| (b) | Commitment fee |
The percentage rate per annum according to which the fee payable under Clause 13.1 (Commitment fee) (updated as applicable to refer to an Accordion Facility) in respect of an Accordion Facility is computed shall not exceed 40 per cent. per annum of the Margin.
| (c) | Borrowers |
An Accordion Facility shall be available only to an Additional Borrower.
| (d) | Purpose |
An Accordion Facility shall only be used for the purpose set out in Clause 3 (Purpose).
| (e) | Availability |
An Accordion Facility shall only be available during the relevant Availability Period.
| 6.6 | Conditions to establishment |
| (a) | The establishment of an Accordion Facility will only be effected in accordance with Clause 6.7 (Establishment of Accordion Facility) if: |
| (i) | on the date of the Accordion Facility Notice and on the Accordion Facility Date: |
| (A) | no Default is continuing or would result from the establishment of the proposed Accordion Facility; and |
| (B) | the Repeating Representations to be made by each Obligor are true in all material respects; |
| (ii) | the Facility Agent has received in form and substance satisfactory to it: |
| (A) | the originals of any Accordion Facility Finance Documents (and of any documents required to be delivered by them); and |
| (C) | such legal opinions as the Facility Agent may require in connection with the documents referred to in this paragraph 6.6(a)(ii)(C). |
| (b) | The Facility Agent shall notify the Corporate Guarantor and the Lenders promptly upon being satisfied under sub-paragraph (a)(ii) of paragraph (a) above. |
| 6.7 | Establishment of Accordion Facility |
| (c) | On the Accordion Facility Date: |
| (v) | each Accordion Facility Lender shall become a Party as a "Lender". |
| 6.8 | Notification of establishment |
The Facility Agent shall, as soon as reasonably practicable after the establishment of an Accordion Facility notify the Borrowers and the Lenders of that establishment and the Accordion Facility Date of that Accordion Facility.
| 6.9 | Accordion Facility costs and expenses |
The Borrowers shall within seven Business Days of demand pay the Facility Agent and the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by either of them and, in the case of the Security Agent, by any Receiver or Delegate in connection with the establishment of an Accordion Facility under this Clause 6 (Establishment of Accordion Facility).
| 6.10 | Prior amendments binding |
Each Accordion Facility Lender, by executing an Accordion Facility Notice, confirms for the avoidance of doubt, that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the establishment of the Accordion Facility requested in the Accordion Facility Notice became effective in accordance with this Agreement and that it is bound by that decision to the same extent as it would have been had it been an Original Lender.
| 6.11 | Limitation of responsibility |
Clause 32.4 (Limitation of responsibility of Existing Lenders) shall apply mutatis mutandis in this Clause 6 (Establishment of Accordion Facility) in relation to any Accordion Facility Lender as if references in that Clause to:
| (a) | an "Existing Lender" were references to all the Lenders immediately prior to the Accordion Facility Date; |
| (b) | the "New Lender" were references to an "Accordion Facility Lender"; and |
| (c) | a "re-transfer" and "re-assignment" were references respectively to a "transfer" and "assignment". |
| 7 | Reduction |
| 7.1 | Reduction of Revolving Facility |
| (c) | Any reduction of the Total Revolving Commitments (and each Revolving Facility Tranche) in accordance with this Clause shall reduce rateably the Commitment of each Lender. |
| 7.2 | Repayment of Advances under the Revolving Facility and the Accordion Facility |
| (a) | Without prejudice to the Borrowers’ obligations under Clause 7.1 (Reduction of Revolving Facility) and 7.3 (Reduction of Accordion Facilities) as applicable, if: |
| (i) | an Advance under the Revolving Facility or an Accordion Facility (as applicable) is to be made available: |
| (A) | on the same day that a maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) is due to be repaid; and |
| (B) | in whole or in part for the purpose of refinancing the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable); and |
| (ii) | the proportion borne by each Lender's participation in the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) to the amount of that maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) is the same as the proportion borne by that ▇▇▇▇▇▇'s participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable) to the amount of the new Advance under the Revolving Facility or an Accordion Facility (as applicable), |
the amount of the new Advance under the Revolving Facility or an Accordion Facility (as applicable) shall, unless the Borrowers notify the Facility Agent to the contrary in the relevant Utilisation Request, be treated as if applied in or towards repayment of the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) so that:
| (A) | if the amount of the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) exceeds the amount of the new Advance under the Revolving Facility or an Accordion Facility (as applicable): |
| (1) | the Borrowers will only be required to make a payment under Clause 38.1 (Payments to the Facility Agent) in an amount equal to that excess; and |
| (2) | each Lender's participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable) shall be treated as having been made available and applied by the Borrowers in or towards repayment of that ▇▇▇▇▇▇'s participation in the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) and that Lender will not be required to make a payment under Clause 38.1 (Payments to the Facility Agent) in respect of its participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable); and |
| (B) | if the amount of the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) is equal to or less than the amount of the new Advance under the Revolving Facility or an Accordion Facility (as applicable): |
| (1) | the Borrowers will not be required to make a payment under Clause 38.1 (Payments to the Facility Agent); and |
| (2) | each Lender will be required to make a payment under Clause 38.1 (Payments to the Facility Agent) in respect of its participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable) only to the extent that its participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable) exceeds that Lender's participation in the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable) and the remainder of that ▇▇▇▇▇▇'s participation in the new Advance under the Revolving Facility or an Accordion Facility (as applicable) shall be treated as having been made available and applied by the Borrowers in or towards repayment of that ▇▇▇▇▇▇'s participation in the maturing Advance under the Revolving Facility or an Accordion Facility (as applicable). |
| accordance with this paragraph (c) to the Defaulting Lender concerned as soon as practicable on receipt. |
| (e) | The terms of this Agreement relating to Advances under the Revolving Facility or an Accordion Facility (as applicable) generally shall continue to apply to Separate Advances other than to the extent inconsistent with paragraphs (b) to (d) above, in which case those paragraphs shall prevail in respect of any Separate Advance. |
| 7.3 | Reduction of Accordion Facilities |
| (c) | Any reduction of the Total Accordion Facility Commitments (and each Accordion Facility Tranche) in accordance with this Clause shall reduce rateably the Commitment of each Lender. |
| 7.4 | Effect of cancellation on scheduled reductions |
| (a) | If the Borrowers cancel the whole or any part of any Available Commitment in accordance with Clause 8.8 (Right of replacement or repayment and cancellation in relation to a single Lender) then: |
| (i) | first, the Revolving Commitments and, if applicable, any Accordion Facility Commitments, shall each reduce equally by the amount of the Available Commitment so cancelled; and |
| (b) | If the whole or part of any Commitment is cancelled pursuant to Clause 5.5 (Cancellation of Commitments) or Clause 8.2 (Voluntary and automatic cancellation), |
| (i) | first, the Revolving Commitments and, if applicable, any Accordion Facility Commitments, shall each reduce equally by the amount of the Commitment so cancelled; and |
| 7.5 | Effect of prepayment on scheduled reductions |
| (c) | Subject to the Lenders’ consent (such consent not to be unreasonably withheld), the Borrowers may request that: |
| (i) | instead of applying repayments or prepayments equally against Revolving Commitments and, if applicable, any Accordion Facility Commitment as referred to in paragraphs (a) and (b) above, any such repayments or prepayments may be allocated towards a specific Revolving Facility Tranche or Accordion Facility Tranche (as applicable) and such Revolving Facility Tranche or Accordion Facility Tranche (as applicable) will be reduced by the amount of such repayment or prepayment; and |
| (ii) | instead of adjusting the Reduction Instalments and Accordion Reduction Instalments (as applicable) in accordance with the formula set out in Schedule 12 (Reduction Instalment Formula) as contemplated by paragraphs (a)(ii) and (b)(ii) above, any prepayment or repayment is allocated towards a specific Revolving Facility Tranche or Accordion Facility Tranche (as applicable) and the relevant Reduction Instalments and Accordion Reduction Instalments (as applicable) for that Revolving Facility Tranche or Accordion Facility Tranche will be reduced on a pro rata basis. |
| 7.6 | Termination Date |
On the Termination Date, the Borrowers shall additionally pay to the Facility Agent for the account of the Finance Parties all other sums then accrued and owing under the Finance Documents.
| 7.7 | Reborrowing |
Subject to Clause 7.1 (Reduction of Revolving Facility) and 7.3 (Reduction of Accordion Facilities) and unless a contrary indication appears in this Agreement, any part of the Revolving Facility or an Accordion Facility which is repaid may be reborrowed in accordance with the terms of this Agreement.
| 8 | Payment and Cancellation |
| 8.1 | Illegality |
| (i) | that ▇▇▇▇▇▇ shall promptly notify the Facility Agent upon becoming aware of that event; |
| (ii) | upon the Facility Agent notifying the Borrowers, the Commitment of that ▇▇▇▇▇▇ will be immediately cancelled; and |
| 8.2 | Voluntary and automatic cancellation |
| (b) | The unutilised Accordion Facility Commitment (if any) of each Lender shall be automatically cancelled at close of business on the date on which the final Accordion Facility is made available. |
| 8.3 | Change of control |
| (a) | If, without the Lenders' prior consent, any person or group of persons acting in concert gains control of a Guarantor: |
| (i) | the Parent Guarantor shall promptly notify the Facility Agent upon becoming aware of that event; and |
| (b) | For the purpose of paragraph 8.3(a) above "control" means: |
| (i) | the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: |
| (A) | cast, or control the casting of, more than 25 per cent. of the maximum number of votes that might be cast at a general meeting of either Guarantor; or |
| (B) | appoint or remove all, or the majority, of the directors or other equivalent officers of either Guarantor; or |
| (C) | give directions with respect to the operating and financial policies of either Guarantor with which the directors or other equivalent officers of either Guarantor are obliged to comply; and/or |
| (iii) | the merger or consolidation of either Guarantor which gives rise to a change of control; and/or |
| (iv) | the approval of a complete liquidation or dissolution of either Guarantor. |
| 8.4 | Voluntary prepayment of Advances under the Revolving Facility |
The Borrowers may, if they give the Facility Agent not less than 5 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of an Advance under the Revolving Facility (but, if in part, being an amount that reduces the amount of the relevant Advance by a minimum amount of $1,000,000).
| 8.5 | Voluntary prepayment of Advances under an Accordion Facility |
The Borrowers may, if they give the Facility Agent not less than 5 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, prepay the whole or any part of an Advance under an Accordion Facility (but, if in part, being an amount that reduces the amount of the relevant Advance by a minimum amount of $1,000,000).
| 8.6 | Mandatory prepayment or replacement on sale or Total Loss |
| (i) | prepay the Revolving Facility Tranche or Accordion Facility Tranche (as applicable) relating to that Ship; and |
| (ii) | cancel the Revolving Commitments or Accordion Facility Commitments (as applicable) in an amount corresponding to the Revolving Facility Tranche or Accordion Facility Tranche prepaid under paragraph (i) above, or |
procure that Security over a replacement vessel is provided in accordance with paragraph (f) below.
| (d) | In this Clause 8.6 (Mandatory prepayment or replacement on sale or Total Loss): |
| (a) | in the case of a sale of a Ship, on the date on which the sale is completed by delivery of that Ship to the buyer of that Ship; and |
| (b) | in the case of a Total Loss of a Ship, on the earlier of: |
| (i) | the date falling 180 days after the Total Loss Date; and |
| (ii) | the date of receipt by the Security Agent of the proceeds of insurance relating to such Total Loss. |
| (f) | The provision by the Borrowers of Security over a replacement vessel pursuant to paragraph 8.6(a) above instead of making the applicable prepayment is subject to: |
| (i) | the replacement vessel being acceptable to the Facility Agent (acting on the instructions of the Lenders, not to be unreasonably withheld); |
| (ii) | the replacement vessel being comparable to the Ship that it replaces (in particular regarding class, type, size and age); |
| (vi) | the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of the Majority Lenders, shall approve or require. |
| 8.7 | Mandatory prepayment of Hedging Payment Proceeds |
Any Hedging Prepayment Proceeds arising as a result of any cancellation or prepayment under this Agreement shall, following payment into the Earnings Account in accordance with Clause 30.1 (Payment of Earnings), be applied on the last day of the Interest Period which ends on or after such payment in, in prepayment of the Loan and shall reduce pro rata the amount of each Reduction Instalment or Accordion Reduction Instalment (as applicable) falling after that prepayment by the amount prepaid.
| 8.8 | Right of replacement or repayment and cancellation in relation to a single Lender |
| (a) | If: |
| (i) | any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up); or |
| (ii) | any Lender claims indemnification from a Borrower under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs); or |
| (iii) | the Facility Agent receives notification from a Lender under Clause 12.4 (Market disruption), |
the Borrowers may:
| (A) | whilst in the case of paragraphs (i) and (ii) above the circumstance giving rise to the requirement for that increase or indemnification continues; or |
| (B) | whilst in the case of paragraph (iii) above the situation in relation to the relevant Lender continues, |
give the Facility Agent notice of cancellation of the Commitment of that Lender and its intention to procure the repayment of that ▇▇▇▇▇▇'s participation in the Loan or give the Facility Agent notice of its intention to replace that Lender in accordance with paragraph (d) below.
| (b) | On receipt of a notice of cancellation referred to in paragraph (a) above, the Commitment of that Lender shall immediately be reduced to zero. |
| price in cash or other cash payment payable at the time of the transfer equal to the outstanding principal amount of such ▇▇▇▇▇▇'s participation in the Loan and all accrued interest (to the extent that the Facility Agent has not given a notification under Clause 32.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents. |
| (e) | The replacement of a Lender pursuant to paragraph (d) above shall be subject to the following conditions: |
| (i) | the Borrowers shall have no right to replace a Servicing Party; |
| (ii) | neither the Facility Agent nor any Lender shall have any obligation to find a replacement Lender; |
| (iii) | in no event shall the Lender replaced under paragraph (d) above be required to pay or surrender any of the fees received by such Lender pursuant to the Finance Documents; and |
| 8.9 | Restrictions |
| (d) | No Borrower shall repay or prepay all or any part of the Loan or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement. |
| (e) | No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated. |
| 8.10 | Application of prepayments |
Any prepayment of any part of the Loan (other than a prepayment pursuant to Clause 8.8 (Right of replacement or repayment and cancellation in relation to a single Lender)) shall be applied pro rata to each Lender's participation in that part of the Loan.
| 9 | Interest |
| 9.1 | Calculation of interest |
On and from the date of this Agreement and until a Rate Switch Date, interest under this Agreement should be calculated by reference to the Compounded Reference Rate.
| 9.2 | Calculation of interest – Compounded Rate Loans |
| (a) | The rate of interest on each Compounded Rate Loan for any day during an Interest Period is the percentage rate per annum which is the aggregate of the applicable: |
| (i) | Margin; and |
| (ii) | Compounded Reference Rate for that day. |
| 9.3 | Calculation of interest – Term SOFR Loans |
The rate of interest on each Term SOFR Loan for an Interest Period is the percentage rate per annum which is the aggregate of the applicable:
| (a) | Margin; and |
| (b) | Term SOFR Reference Rate. |
| 9.4 | Payment of interest |
The Borrowers shall pay accrued interest on the Loan or any part of the Loan on the last day of each Interest Period (each an "Interest Payment Date").
| 9.5 | Default interest |
| (b) | If an Unpaid Sum consists of all or part of a Term SOFR Loan which became due on a day which was not the last day of an Interest Period relating to a Term SOFR Loan: |
| (i) | the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to the Loan or that part of the Loan; and |
| (ii) | the rate of interest applying to that Unpaid Sum during that first Interest Period shall be two per cent. higher than the rate which would have applied if that Unpaid Sum had not become due. |
| 9.6 | Notifications |
| (a) | The Facility Agent shall promptly upon a Compounded Rate Interest Payment being determinable, notify: |
| (i) | the Borrowers of that Compounded Rate Interest Payment; |
| (ii) | each Lender of the proportion of that Compounded Rate Interest Payment which relates to that ▇▇▇▇▇▇'s participation in the relevant Compounded Rate Loan; and |
| (iii) | the Lenders and the Borrowers of: |
| (A) | each applicable rate of interest relating to the determination of that Compounded Rate Interest Payment; and |
| (B) | to the extent it is then determinable, the Compounded Market Disruption Rate (if any) relating to the relevant Compounded Rate Loan. |
This paragraph (a) shall not apply to any Compounded Rate Interest Payment determined pursuant to Clause 12.5 (Cost of funds).
| (b) | The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest relating to a Term SOFR Loan. |
| (c) | The Facility Agent shall promptly notify the Borrowers of each Funding Rate relating to the Loan or any part of the Loan. |
| (d) | The Facility Agent shall promptly notify the Lenders and the Borrowers of the determination of a rate of interest relating to a Compounded Rate Loan to which Clause 12.5 (Cost of funds) applies. |
| (e) | This Clause 9.6 (Notifications) shall not require the Facility Agent to make any notification to any Party on a day which is not a Business Day. |
| 9.7 | Hedging |
| (a) | The Borrowers may enter into Hedging Agreements and shall after that date maintain such Hedging Agreements in accordance with this Clause 9.7 (Hedging). |
| (b) | Each Hedging Agreement shall: |
| (i) | be with a Hedge Counterparty and each Hedge Counterparty shall also be a Lender; |
| (ii) | be for a term ending on or before the Termination Date; |
| (iii) | have settlement dates coinciding with the Interest Payment Dates; |
| (iv) | be in agreed form; |
| (vi) | provide that the Termination Currency (as defined in the relevant Hedging Agreement) shall be dollars. |
| (c) | The rights of each Borrower under the Hedging Agreements shall be assigned by way of security under a Hedging Agreement Assignment. |
| (d) | The parties to each Hedging Agreement must comply with the terms of that Hedging Agreement. |
| (e) | Neither a Hedge Counterparty nor a Borrower may amend, supplement, extend or waive the terms of any Hedging Agreement without the consent of the Facility Agent. |
| (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. |
| (i) | Subject to paragraph (j) below, neither a Hedge Counterparty nor a Borrower may terminate or close out any transactions in respect of any Hedging Agreement (in whole or in part) except: |
| (i) | in accordance with paragraph (g) above; |
| (ii) | on the occurrence of an Illegality, Tax Event or Tax event Upon Merger of Force Majeure (as such expressions are defined in the relevant Hedging Agreement); |
| (iv) | in the case of any other termination or closing out by a Hedge Counterparty or a Borrower, with the consent of the Facility Agent; |
| (v) | if the Secured Liabilities (other than in respect of the Hedging Agreements) have been irrevocably and unconditionally paid and discharged in full (including for the purposes of refinancing); |
| (vi) | if a Borrower does not pay on the due date any amount payable pursuant to a Hedging Agreement; |
| (vii) | if the Facility Agent takes any action pursuant to Clause 31.17 (Acceleration); |
| (viii) | if a Hedge Counterparty ceases to be a Lender pursuant to Clause 8 (Payment and cancellation) or Clause 32.10 (Replacement of Lenders by Borrowers); or |
| (ix) | on the occurrence of any event or circumstance set out in Clause 31.7 (Insolvency) or Clause 31.8 (Insolvency proceedings). |
| (n) | The Security Agent shall not be liable for the performance of any of a Borrower's obligations under a Hedging Agreement. |
| 9.8 | Hedging with another bank or financial institution |
A Borrower shall only be permitted to enter into a Hedging Agreement with a bank or financial institution other than a Hedge Counterparty if any Security to be provided by the Borrower or Borrowers to such other bank or financial institution shall be fully subordinated to the Security created pursuant to the Finance Documents on terms and undertakings which are acceptable to the Facility Agent (acting on the instructions of the Majority Lenders).
| 10 | Rate Switch |
| 10.1 | Switch to Term SOFR Reference Rate |
| (a) | Subject to Clause 10.2 (Delayed switch for existing Compounded Rate Loans), on and from the Rate Switch Date: |
| (i) | use of the Term SOFR Reference Rate will replace the use of the Compounded Reference Rate for the calculation of interest for the Loan or any part of the Loan; and |
| (b) | There shall be no more than one Rate Switch Date under this Agreement. |
| 10.2 | Delayed switch for existing Compounded Rate Loans |
If the Rate Switch Date falls before the last day of an Interest Period for a Compounded Rate Loan:
| (c) | on and from the first day of the next Interest Period (if any) for the Loan, relevant part of the Loan or Unpaid Sum (as applicable): |
| (i) | the Loan, relevant part of the Loan or Unpaid Sum (as applicable) shall be a "Term SOFR Loan"; and |
| (ii) | Clause 9.3 (Calculation of interest – Term SOFR Loans) shall apply to it. |
| 11 | Interest Periods |
| 11.1 | Commencement and duration of Interest Periods |
| (a) | Subject to Clause 11.2 (Changes to Interest Periods), each Interest Period shall be three Months or one Month. |
| (c) | An Interest Period in respect of the Loan or any part of the Loan shall not extend beyond the Termination Date. |
| 11.2 | Changes to Interest Periods |
| (b) | If the Facility Agent makes any change to an Interest Period referred to in this Clause 11.2 (Changes to Interest Periods), it shall promptly notify the Borrowers and the Lenders. |
| 11.3 | Non-Business Days |
| 12 | Changes to the Calculation of Interest |
| 12.1 | Interest calculation if no RFR or Central Bank Rate before Rate Switch Date |
If:
| (a) | there is no RFR or Central Bank Rate for the purposes of calculating the Daily Non-Cumulative Compounded RFR Rate for an RFR Banking Day during an Interest Period for a Compounded Rate Loan; and |
| (b) | "Cost of funds will apply as a fallback" is specified in the Benchmark Terms, |
Clause 12.5 (Cost of funds) shall apply to that Compounded Rate Loan for that Interest Period.
| 12.2 | Unavailability of Term SOFR |
| (a) | Interpolated Term SOFR |
If no Term SOFR is available for a Term SOFR Loan, the applicable Term SOFR Reference Rate shall be the Interpolated Term SOFR for a period equal in length to the Interest Period of that Term SOFR Loan.
| (b) | Historic Term SOFR |
If no Term SOFR is available for a Term SOFR Loan and it is not possible to calculate the Interpolated Term SOFR, the applicable Term SOFR Reference Rate shall be the Historic Term SOFR for the Term SOFR Loan.
| (c) | Interpolated Historic Term SOFR |
If paragraph (b) above applies but no Historic Term SOFR is available for a Term SOFR Loan, the applicable Term SOFR Reference Rate shall be the Interpolated Historic Term SOFR for a period equal in length to the Interest Period of the Term SOFR Loan.
| 12.3 | Cost of funds |
If paragraph 12.2(c) of Clause 12.2 above applies but it is not possible to calculate the Interpolated Historic Term SOFR, there shall be no Term SOFR Reference Rate for the Term SOFR Loan and Clause 12.5 (Cost of funds) shall apply to the Term SOFR Loan.
| 12.4 | Market disruption |
| (a) | In the case of a Compounded Rate Loan, if: |
| (i) | a Compounded Market Disruption Rate is specified in the Benchmark Terms; and |
then Clause 12.5 (Cost of funds) shall apply to the Loan or that part of the Loan (as applicable) for the relevant Interest Period.
| 12.5 | Cost of funds |
| (i) | the Margin; and |
| (ii) | the weighted average of the rates notified to the Facility Agent by each Lender as soon as practicable and in any event |
| (A) | in relation to a Compounded Rate Loan, by the Reporting Time for that Compounded Rate Loan |
to be that which expresses as a percentage rate per annum its cost of funds relating to its participation in the Loan or that part of the Loan.
| (e) | If this Clause 12.5 (Cost of funds) applies pursuant to Clause 12.4 (Market disruption) and: |
| (g) | If this Clause 12.5 (Cost of funds) applies, the Facility Agent shall, as soon as practicable, notify the Borrowers. |
| 12.6 | Break Costs |
| (b) | Paragraph (a) above shall apply in respect of a Compounded Rate Loan if an amount is specified as Break Costs in the Benchmark Terms. |
| 13 | Fees |
| 13.1 | Commitment fee |
| (b) | The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the relevant Availability Period, on the last day of the relevant |
| Availability Period and, if cancelled, on the cancelled amount of the relevant Lender's Commitment at the time the cancellation is effective. |
| 13.2 | Upfront fees |
The Borrowers shall pay to each Mandated Lead Arranger the upfront fees in the amounts and at the times agreed in each Fee Letter.
| 13.3 | Agent fee |
The Borrowers shall pay to the Facility Agent and Security Agent for their account an agency fee in the amount and at the times agreed in a Fee Letter.
| 14 | Tax Gross Up and Indemnities |
| 14.1 | Definitions |
In this Agreement:
| (b) | This Clause 14 (Tax Gross Up and Indemnities) shall not apply to any Hedging Agreement. |
| 14.2 | Tax gross-up |
| (a) | Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law. |
| Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority. |
| 14.3 | Tax indemnity |
| (b) | Paragraph (a) above shall not apply: |
| (i) | with respect to any Tax assessed on a Finance Party: |
| (B) | under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction, |
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or
| (ii) | to the extent a loss, liability or cost: |
| (A) | is fully compensated for by an increased payment under Clause 14.2 (Tax gross-up); or |
| (B) | relates to a FATCA Deduction required to be made by a Party. |
| (d) | A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3 (Tax indemnity), notify the Facility Agent. |
| 14.4 | Tax Credit |
If an Obligor makes a Tax Payment and the relevant Finance Party determines that:
| (a) | a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and |
| (b) | that Finance Party has obtained, utilised and retained that Tax Credit, |
the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.
| 14.5 | Stamp taxes |
The Borrowers shall pay and, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability which that Secured Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
| 14.6 | VAT |
| the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be). |
| 14.7 | FATCA Information |
| (a) | Subject to paragraph (c) below, each Party shall, within 10 Business Days of a reasonable request by another Party: |
| (i) | confirm to that other Party whether it is: |
| (A) | a FATCA Exempt Party; or |
| (B) | not a FATCA Exempt Party; and |
| (i) | any law or regulation; |
| (ii) | any fiduciary duty; or |
| (iii) | any duty of confidentiality. |
| 14.8 | FATCA Deduction |
| (a) | Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase |
| any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. |
| 15 | Increased Costs |
| 15.1 | Increased costs |
| (i) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or |
| (ii) | compliance with any law or regulation made, including any costs attributable to the implementation, application of, or compliance with, Basel III or CRD IV, |
in each case after the date of this Agreement; or
| (iii) | the implementation, application of or compliance with Basel III or CRD IV or any law or regulation that implements or applies Basel III or CRD IV. |
| (b) | In this Agreement: |
| (i) | "Basel III" means: |
| (C) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". |
| (ii) | "CRD IV" means: |
| (A) | Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and |
| investment firms and amending regulation (EU) No. 648/2012, as amended by Regulation (EU) 2019/876; |
| (C) | any other law or regulation which implements Basel III. |
| (iii) | In this Agreement, "Increased Costs" means: |
| (A) | a reduction in the rate of return from a Facility or on a Finance Party's (or its Affiliate's) overall capital; |
| (B) | an additional or increased cost; or |
| (C) | a reduction of any amount due and payable under any Finance Document, |
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into its Commitment or funding or performing its obligations under any Finance Document.
| 15.2 | Increased cost claims |
| (b) | Each Finance Party shall, as soon as practicable after a demand by the Facility Agent, provide a certificate confirming the amount of its Increased Costs. |
| 15.3 | Exceptions |
Clause 15.1 (Increased costs) does not apply to the extent any Increased Cost is:
| (a) | attributable to a Tax Deduction required by law to be made by an Obligor; |
| (b) | relates to a FATCA Deduction required to be made by a Party; |
| (d) | compensated for by any payment made pursuant to Clause 16.3 (Mandatory Cost); |
| (e) | attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or |
| (f) | incurred by a Hedge Counterparty in its capacity as such. |
| 16 | Other Indemnities |
| 16.1 | Currency indemnity |
| (i) | making or filing a claim or proof against that Obligor; or |
| (ii) | obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
that Obligor shall, as an independent obligation, on demand, indemnify each Secured Party to which that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available to that person at the time of its receipt of that Sum.
| (b) | Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable. |
| (c) | This Clause 16.1 (Currency indemnity) does not apply to any sum due to a Hedge Counterparty in its capacity as such. |
| 16.2 | Other indemnities |
| (a) | Each Obligor shall, on demand, indemnify each Secured Party against any cost, loss or liability incurred by it as a result of: |
| (i) | the occurrence of any Event of Default; |
| (iv) | the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrowers. |
| the condition or operation of, or any incident occurring in relation to, any Ship unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person. |
| (i) | arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or |
| (ii) | in connection with any Environmental Claim. |
| 16.3 | Mandatory Cost |
Each Borrower shall, on demand by the Facility Agent, pay to the Facility Agent for the account of the relevant Lender, such amount which any Lender certifies in a notice to the Facility Agent to be its good faith determination of the amount necessary to compensate it for complying with:
which, in each case, is referable to that ▇▇▇▇▇▇'s participation in the Loan.
| 16.4 | Indemnity to the Servicing Parties |
Each Obligor shall, on demand, indemnify each Servicing Party against any reasonable cost, loss or liability incurred by that Servicing Party (acting reasonably) as a result of:
| (a) | investigating any event which it reasonably believes is a Default; |
| (b) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; and |
| (c) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents. |
| 16.5 | Indemnity to the Facility Agent |
Each Obligor shall, on demand, indemnify the Facility Agent against any reasonable cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 38.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent in acting as Facility Agent under the Finance Documents.
| 16.6 | Indemnity to the Security Agent |
| (a) | Each Obligor shall, on demand, indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them: |
| (i) | in relation to or as a result of: |
| (A) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised; |
| (B) | the taking, holding, protection or enforcement of the Finance Documents and the Transaction Security; |
| (C) | the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law; |
| (D) | any default by any Transaction Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; |
| (E) | any action by any Obligor which vitiates, reduces the value of, or is otherwise prejudicial to, the Transaction Security; and |
| (F) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under the Finance Documents. |
| 16.7 | Indemnity to the Sustainability Coordinator |
Each Obligor shall, on demand, indemnify the Sustainability Coordinator against any reasonable cost, loss or liability incurred by the Sustainability Coordinator (otherwise than by reason of the Sustainability Coordinator's gross negligence or wilful misconduct) or, in the case of any cost, loss or liability pursuant to Clause 38.11 (Disruption to Payment Systems etc.)
notwithstanding the Sustainability Coordinator's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Sustainability Coordinator in acting as Sustainability Coordinator under the Finance Documents.
| 17 | Mitigation by the Finance Parties |
| 17.1 | Mitigation |
| (b) | Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
| 17.2 | Limitation of liability |
| (a) | Each Borrower shall, on demand, indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 17.1 (Mitigation). |
| (b) | A Finance Party is not obliged to take any steps under Clause 17.1 (Mitigation) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
| 18 | Costs and Expenses |
| 18.1 | Transaction expenses |
The Borrowers shall, on demand, pay the Facility Agent, the Security Agent and each Mandated Lead Arranger the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by any Secured Party in connection with the negotiation, preparation, printing, execution, syndication and perfection of:
| (a) | this Agreement and any other documents referred to in this Agreement; |
| (b) | the Transaction Security; and |
| (c) | any other Finance Documents executed after the date of this Agreement. |
| 18.2 | Amendment costs |
If:
| (a) | an Obligor requests an amendment, waiver or consent; or |
| (b) | an amendment is required pursuant to Clause 38.9 (Change of currency) or as contemplated in Clause 46.4 (Changes to reference rates); or |
| (c) | an Obligor requests, and the Security Agent agrees to, the release of all or any part of the Charged Property from the Transaction Security, |
the Borrowers shall, on demand, reimburse each of the Facility Agent and the Security Agent for the amount of all reasonable costs and expenses (including legal fees) reasonably incurred by each Secured Party in responding to, evaluating, negotiating or complying with that request or requirement.
| 18.3 | Enforcement and preservation costs |
The Borrowers shall, on demand, pay to each Secured Party the amount of all costs and expenses (including legal fees) incurred by that Secured Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and the Transaction Security and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Transaction Security or enforcing those rights.
| 18.4 | Reference rate transition costs |
The Borrowers shall on demand reimburse each of the Facility Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by each Secured Party in connection with:
| (a) | the negotiation or entry into of any Compounded Rate Supplement or Compounding Methodology Supplement; or |
| (b) | any amendment, waiver or consent relating to: |
| (i) | the transition to the Compounded Reference Rate; |
| (ii) | any Compounded Rate Supplement or Compounding Methodology Supplement; or |
| (iii) | any change arising as a result of an amendment required under Clause 46.4 (Changes to reference rates). |
| 19 | Guarantee and Indemnity – Guarantors |
| 19.1 | Guarantee and indemnity |
Each Guarantor irrevocably and unconditionally:
| (a) | guarantees to each Finance Party punctual performance by each Obligor other than the Guarantors of all such other Obligor's obligations under the Finance Documents; |
| 19.2 | Continuing guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
| 19.3 | Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the Guarantors under this Clause 19 (Guarantee and Indemnity – Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
| 19.4 | Waiver of defences |
The obligations of the Guarantors under this Clause 19 (Guarantee and Indemnity – Guarantors) and in respect of any Transaction Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 19.4 (Waiver of defences), would reduce, release or prejudice any of its obligations under this Clause 19 (Guarantee and Indemnity – Guarantors) or in respect of any Transaction Security (without limitation and whether or not known to it or any Secured Party) including:
| (a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
| (b) | the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; |
| (f) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
| (g) | any insolvency or similar proceedings. |
| 19.5 | Immediate recourse |
The Guarantors each waive any right they may have of first requiring any Secured 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 (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 19 (Guarantee and Indemnity – Guarantors). This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
| 19.6 | Appropriations |
Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Secured Party (or any trustee or agent on its behalf) may:
| (b) | hold in an interest-bearing suspense account any moneys received from the Guarantors or on account of either Guarantor's liability under this Clause 19 (Guarantee and Indemnity – Guarantors). |
| 19.7 | Deferral of Parent Guarantors' rights |
All rights which either Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against any Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period and unless the Facility Agent otherwise
directs, the Guarantors will not exercise any rights which they may have (whether in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by either Guarantor of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 19 (Guarantee and Indemnity – Guarantors):
| (a) | to be indemnified by an Obligor; |
| (b) | to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents; |
| (e) | to exercise any right of set-off against any Obligor; and/or |
| (f) | to claim or prove as a creditor of any Obligor in competition with any Secured Party. |
If either Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 38 (Payment Mechanics).
| 19.8 | Additional security |
This guarantee and any other Security given by the Guarantors is in addition to and is not in any way prejudiced by, and shall not prejudice, any other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to combine accounts in connection with the Finance Documents.
| 19.9 | Applicability of provisions of Guarantee to other Security |
Clauses 19.2 (Continuing guarantee), 19.3 (Reinstatement), 19.4 (Waiver of defences), 19.5 (Immediate recourse), 19.6 (Appropriations), 19.7 (Deferral of Parent Guarantors' rights) and 19.8 (Additional security) shall apply, with any necessary modifications, to any Security which the Parent Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
| 20 | Joint and Several Liability of the Guarantors |
| 20.1 | Joint and several liability |
All liabilities and obligations of the Guarantors under this Agreement shall, whether expressed to be so or not, be joint and several.
| 20.2 | Waiver of defences |
The liabilities and obligations of a Guarantor shall not be impaired by:
| (a) | this Agreement being or later becoming void, unenforceable or illegal as regards the other Guarantor; |
| (b) | any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with the other Guarantor; |
| (c) | any Lender or the Security Agent releasing the other Guarantor or any Security created by a Finance Document; or |
| (d) | any time, waiver or consent granted to, or composition with the other Guarantor or other person; |
| (e) | the release of the other Guarantor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
| (g) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the other Guarantor or any other person; |
| (i) | any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or |
| (j) | any insolvency or similar proceedings. |
| 20.3 | Principal Debtor |
Each Guarantor declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and no Guarantor shall, in any circumstances, be construed to be a surety for the obligations of the other Guarantor under this Agreement.
| 20.4 | Guarantor restrictions |
| (a) | Subject to paragraph (b) below, during the Security Period no Guarantor shall: |
| (ii) | take or enforce any form of security from the other Guarantor for such an amount, or in any the way seek to have recourse in respect of such an amount against any asset of the other Guarantor; or |
| (iii) | set off such an amount against any sum due from it to the other Guarantor; or |
| (iv) | prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving the other Guarantor; or |
| (v) | exercise or assert any combination of the foregoing. |
| 20.5 | Deferral of Guarantors' rights |
Until all amounts which may be or become payable by the Guarantors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility 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 the other Guarantor; or |
| (b) | to claim any contribution from the other Guarantor in relation to any payment made by it under the Finance Documents. |
| 21 | Joint and Several Liability of the Borrowers |
| 21.1 | Joint and several liability |
All liabilities and obligations of the Borrowers under this Agreement shall, whether expressed to be so or not, be joint and several.
| 21.2 | Waiver of defences |
The liabilities and obligations of a Borrower shall not be impaired by:
| (a) | this Agreement being or later becoming void, unenforceable or illegal as regards any other Borrower; |
| (b) | any Lender or the Security Agent entering into any rescheduling, refinancing or other arrangement of any kind with any other Borrower; |
| (c) | any Lender or the Security Agent releasing any other Borrower or any Security created by a Finance Document; or |
| (d) | any time, waiver or consent granted to, or composition with any other Borrower or other person; |
| (e) | the release of any other Borrower or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
| (g) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any other Borrower or any other person; |
| (i) | any unenforceability, illegality or invalidity of any obligation or any person under any Finance Document or any other document or security; or |
| (j) | any insolvency or similar proceedings. |
| 21.3 | Principal Debtor |
Each Borrower declares that it is and will, throughout the Security Period, remain a principal debtor for all amounts owing under this Agreement and the Finance Documents and no Borrower shall, in any circumstances, be construed to be a surety for the obligations of any other Borrower under this Agreement.
| 21.4 | Borrower restrictions |
| (a) | Subject to paragraph (b) below, during the Security Period no Borrower shall: |
| (ii) | take or enforce any form of security from any other Borrower for such an amount, or in any the way seek to have recourse in respect of such an amount against any asset of any other Borrower; or |
| (iii) | set off such an amount against any sum due from it to any other Borrower; or |
| (iv) | prove or claim for such an amount in any liquidation, administration, arrangement or similar procedure involving any other Borrower; or |
| (v) | exercise or assert any combination of the foregoing. |
| 21.5 | Deferral of Borrowers' rights |
Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Borrower 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 any other Borrower; or |
| (b) | to claim any contribution from any other Borrower in relation to any payment made by it under the Finance Documents. |
| 22 | Guarantee and Indemnity – Hedge Guarantors |
| 22.1 | Guarantee and indemnity |
Each Hedge Guarantor irrevocably and unconditionally:
| (a) | guarantees to each Finance Party punctual performance by each Borrower of all that Borrower's obligations under the Hedging Agreements; |
| 22.2 | Continuing guarantee |
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Borrower under the Hedging Agreements, regardless of any intermediate payment or discharge in whole or in part.
| 22.3 | Reinstatement |
If any discharge, release or arrangement (whether in respect of the obligations of any Borrower or any security for those obligations or otherwise) is made by a Secured Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Hedge Guarantor under this Clause 22 (Guarantee and Indemnity – Hedge Guarantors) will continue or be reinstated as if the discharge, release or arrangement had not occurred.
| 22.4 | Waiver of defences |
The obligations of each Hedge Guarantor under this Clause 22 (Guarantee and Indemnity – Hedge Guarantors) (and in respect of any Transaction Security will not be affected or discharged by an act, omission, matter or thing which, but for this Clause 22.4 (Waiver of defences), would reduce, release or prejudice any of its obligations under this Clause 22 (Guarantee and Indemnity – Hedge Guarantors)) or in respect of any Transaction Security (without limitation and whether or not known to it or any Secured Party) including:
| (a) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
| (b) | the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group; |
| (d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person; |
| (f) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
| (g) | any insolvency or similar proceedings. |
| 22.5 | Immediate recourse |
Each Hedge Guarantor waives any right it may have of first requiring any Secured 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 (including without limitation to commence any proceedings under any Finance Document or to enforce any Transaction Security) before claiming or commencing proceedings under this Clause 22 (Guarantee and Indemnity – Hedge Guarantors).
This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
| 22.6 | Appropriations |
Until all amounts which may be or become payable by the Borrowers under or in connection with the Hedging Agreements have been irrevocably paid in full, each Secured Party (or any trustee or agent on its behalf) may:
| 22.7 | Deferral of Hedge Guarantors' rights |
All rights which each Hedge Guarantor at any time has (whether in respect of this guarantee, a mortgage or any other transaction) against any Borrower, any other Obligor or their respective assets shall be fully subordinated to the rights of the Secured Parties under the Finance Documents and until the end of the Security Period and unless the Facility Agent otherwise directs, no Hedge Guarantor will exercise any rights which it may have (whether in respect of any Finance Document to which it is a Party or any other transaction) by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 22 (Guarantee and Indemnity – Hedge Guarantors):
| (a) | to be indemnified by an Obligor; |
| (b) | to claim any contribution from any third party providing security for, or any other guarantor of, any Obligor's obligations under the Finance Documents; |
| (e) | to exercise any right of set-off against any Obligor; and/or |
| (f) | to claim or prove as a creditor of any Obligor in competition with any Secured Party. |
If a Hedge Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Secured Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Secured Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent may direct for application in accordance with Clause 38 (Payment Mechanics).
| 22.8 | Additional security |
This guarantee and any other Security given by a Hedge Guarantor is in addition to and is not in any way prejudiced by, and shall not prejudice, any other guarantee or Security or any other right of recourse now or subsequently held by any Secured Party or any right of set-off or netting or right to combine accounts in connection with the Finance Documents.
| 22.9 | Applicability of provisions of Guarantee to other Security |
Clauses 22.2 (Continuing guarantee), 22.3 (Reinstatement), 22.4 (Waiver of defences), 22.5 (Immediate recourse), 22.6 (Appropriations), 22.7 (Deferral of Hedge Guarantors' rights) and 22.8 (Additional security) shall apply, with any necessary modifications, to any Security which a Hedge Guarantor creates (whether at the time at which it signs this Agreement or at any later time) to secure the Secured Liabilities or any part of them.
| 23 | Representations |
| 23.1 | General |
Each Obligor makes the representations and warranties set out in this Clause 23 (Representations) to each Finance Party on the date of this Agreement.
| 23.2 | Status |
| (b) | It has the power to own its assets and carry on its business as it is being conducted. |
| 23.3 | Membership interests and ownership |
| (a) | The aggregate membership interests expressed in terms of shares authorised to be issued is: |
| (i) | in the case of Borrower A and Borrower B, 100 LLC shares; |
| (ii) | in the case of Borrower C, 5,913,289 LLC shares; |
| (iii) | in the case of Borrower D, 2,963,289 LLC shares; |
| (iv) | in the case of ▇▇▇▇▇▇▇▇ E, 11,821,252 LLC shares; |
| (v) | in the case of Borrower F, 100 LLC shares; and |
| (vi) | in the case of Borrower G, 100 LLC shares, |
which shares are, in each case, uncertificated.
| (b) | The legal title to and beneficial interest in the membership interests in each Borrower is held free of any Security or any other claim by the Corporate Guarantor. |
| (c) | None of the membership interests in any Borrower is subject to any option to purchase, pre-emption rights or similar rights. |
| (d) | The legal title to and beneficial interest in the membership interests in the Corporate Guarantor is held free of any Security or any other claim by the Parent Guarantor. |
| 23.4 | Binding obligations |
The obligations expressed to be assumed by it in each Transaction Document to which it is a party are legal, valid, binding and enforceable obligations.
| 23.5 | Validity, effectiveness and ranking of Security |
| (b) | No third party has or will have any Security (except for Permitted Security) over any assets that are the subject of any Transaction Security granted by it. |
| (d) | No concurrence, consent or authorisation of any person is required for the creation of or otherwise in connection with any Transaction Security. |
| 23.6 | Non-conflict with other obligations |
The entry into and performance by it of, and the transactions contemplated by, each Transaction Document to which it is a party do not and will not conflict with:
| (a) | any law or regulation applicable to it; |
| (b) | the constitutional documents of any member of the Group; or |
| 23.7 | Power and authority |
| (a) | It has the power to enter into, perform and deliver, and has taken all necessary action to authorise: |
| (i) | its entry into, performance and delivery of, each Transaction Document to which it is or will be a party and the transactions contemplated by those Transaction Documents; and |
| (ii) | in the case of each Borrower, its registration of the Ship owned by it under its Approved Flag. |
| (b) | No limit on its powers will be exceeded as a result of the borrowing, granting of security or giving of guarantees or indemnities contemplated by the Transaction Documents to which it is a party. |
| 23.8 | Validity and admissibility in evidence |
All Authorisations required or desirable:
| (a) | to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party; and |
| (b) | to make the Transaction Documents to which it is a party admissible in evidence in its Relevant Jurisdictions, |
have been obtained or effected and are in full force and effect.
| 23.9 | Governing law and enforcement |
| (a) | The choice of governing law of each Transaction Document to which it is a party will be recognised and enforced in its Relevant Jurisdictions. |
| 23.10 | Insolvency |
No:
| (a) | corporate action, legal proceeding or other procedure or step described in paragraph (a) of Clause 31.8 (Insolvency proceedings); or |
| (b) | creditors' process described in Clause 31.9 (Creditors' process), |
has been taken or, to its knowledge, threatened in relation to a member of the Group; and none of the circumstances described in Clause 31.7 (Insolvency) applies to a member of the Group.
| 23.11 | No filing or stamp taxes |
Except for the filing in the ▇▇▇▇▇▇▇▇ Islands Registry of the Mortgages over the Ships, under the laws of its Relevant Jurisdictions it is not necessary that the Finance Documents to which it is a party be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar taxes or fees be paid on or in relation to the Finance Documents to which it is a party or the transactions contemplated by those Finance Documents except any filing, recording or enrolling or any tax or fee payable which is referred to in any legal opinion delivered pursuant to Clause 4 (Conditions of Utilisation) and which will be made or paid promptly after the date of the relevant Finance Document.
| 23.12 | Deduction of Tax |
It is not required to make any Tax Deduction from any payment it may make under any Finance Document to which it is a party.
| 23.13 | No default |
| 23.14 | No misleading information |
| (b) | The financial projections contained in any such information have been prepared on the basis of recent historical information and on the basis of reasonable assumptions. |
| 23.15 | Financial Statements |
| (a) | Its most recent financial statements delivered pursuant to Clause 24.2 (Financial statements): |
| (i) | have been prepared in accordance with Clause 24.4 (Requirements as to financial statements); and |
| 23.16 | Pari passu ranking |
Its payment obligations under the Finance Documents to which it is a party rank 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.
| 23.17 | No proceedings pending or threatened |
No litigation, arbitration or administrative proceedings or investigations (including proceedings or investigations relating to any alleged or actual breach of the ISM Code or of the ISPS Code) of or before any court, arbitral body or agency have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against it, which might have a Material Adverse Effect.
| 23.18 | Validity and completeness of the Pool Agreements |
| (a) | The Pool Agreements constitute legal, valid, binding and enforceable obligations of the parties to it. |
| (b) | The copies of the Pool Agreements delivered to the Facility Agent before the date of this Agreement are a true and complete copy. |
| (c) | No material amendments or additions to the Pool Agreements have been agreed nor have any rights under the Pool Agreements been waived. |
| 23.19 | Valuations |
| (b) | It has not omitted to supply any information to an Approved Valuer which, if disclosed, would adversely affect any valuation prepared by such Approved Valuer. |
| 23.20 | No breach of laws |
It has not breached any law or regulation which breach has had or could reasonably be expected to have a Material Adverse Effect.
| 23.21 | No Charter |
No Ship is subject to any Charter other than a Permitted Charter.
| 23.22 | Compliance with Environmental Laws |
All Environmental laws relating to the ownership, operation and management of each Ship and the business of each member of the Group (as now conducted and as reasonably anticipated to be conducted in the future) and the terms of all Environmental Approvals have been complied with.
| 23.23 | No Environmental Claim |
No Environmental Claim has been made or threatened against any member of the Group or any Ship.
| 23.24 | No Environmental Incident |
No Environmental Incident has occurred and no person has claimed that an Environmental Incident has occurred.
| 23.25 | ISM and ISPS Code compliance |
All requirements of the ISM Code and the ISPS Code as they relate to each Borrower, each Approved Manager and each Ship have been complied with or will be complied with.
| 23.26 | Taxes paid |
| (b) | No claims or investigations are being, or could reasonably be expected to be, made or conducted against it (or any other member of the Group) with respect to Taxes. |
| 23.27 | Financial Indebtedness |
No Borrower has any Financial Indebtedness outstanding other than as permitted by this Agreement.
| 23.28 | Overseas companies |
No Obligor has delivered particulars, whether in its name stated in the Finance Documents or any other name, of any UK Establishment to the Registrar of Companies as required under the Overseas Regulations or, if it has so registered, it has provided to the Facility Agent sufficient details to enable an accurate search against it to be undertaken by the Lenders at the Companies Registry.
| 23.29 | Good title to assets |
It has good, valid and marketable title to, or valid leases or licences of, and all appropriate Authorisations to use, the assets necessary to carry on its business as presently conducted.
| 23.30 | Ownership |
| (a) | On the first Utilisation Date, Borrower A will be the sole legal and beneficial owner of Ship A, its Earnings and its Insurances. |
| (b) | On the first Utilisation Date, Borrower B will be the sole legal and beneficial owner of Ship B, its Earnings and its Insurances. |
| (c) | On the first Utilisation Date, Borrower C will be the sole legal and beneficial owner of Ship C, its Earnings and its Insurances. |
| (d) | On the first Utilisation Date, Borrower D will be the sole legal and beneficial owner of Ship D, its Earnings and its Insurances. |
| (e) | On the Utilisation Date in respect of Ship E, Borrower E will be the sole legal and beneficial owner of Ship E, its Earnings and its Insurances. |
| (f) | On the Utilisation Date in respect of Ship F, Borrower F will be the sole legal and beneficial owner of Ship F, its Earnings and its Insurances. |
| (g) | On the Utilisation Date in respect of Ship G, Borrower G will be the sole legal and beneficial owner of Ship G, its Earnings and its Insurances. |
| 23.31 | Centre of main interests and establishments |
For the purposes of The Council of the European Union Regulation No. 2015/848 on Insolvency Proceedings (recast) (the "Regulation"), its centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in Bermuda and it has no "establishment" (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction save as disclosed to, and agreed by, the Lenders.
| 23.32 | Place of business |
No Obligor has a place of business in any country other than as disclosed to the Facility Agent in writing, and agreed to by the Lenders, on or around the date of this Agreement.
| 23.33 | No employee or pension arrangements |
No Obligor has any employees (save as disclosed at the date of this Agreement) or any liabilities under any pension scheme.
| 23.34 | Sanctions |
Each Relevant Person has been and is in compliance with all Sanctions and no Relevant Person:
| (a) | is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party; or |
| (b) | has received formal notice in writing of any inquiry, claim, action, suit, proceeding or investigation against it with respect to Sanctions. |
| 23.35 | Anti-corruption and anti-money laundering obligations |
| 23.36 | Anti-terrorism |
No Transaction Obligor, nor any of their Subsidiaries or joint ventures, nor any of their respective directors, officers or employees nor, to the knowledge of the Transaction Obligors, any persons acting on any of their behalf, has engaged in any activity or conduct which would violate any anti-terrorism laws applicable to it.
| 23.37 | Shareholder loans |
The Borrowers have not received any shareholder loans.
| 23.38 | Repetition |
The Repeating Representations are deemed to be made by each Obligor by reference to the facts and circumstances then existing on the date of each Utilisation Request and the first day of each Interest Period.
| 24 | Information Undertakings |
| 24.1 | General |
The undertakings in this Clause 24 (Information Undertakings) remain in force throughout the Security Period unless the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders), may otherwise permit.
| 24.2 | Financial statements |
The Obligors shall ensure that there are provided to the Facility Agent in sufficient copies for all the Lenders:
| 24.3 | Compliance Certificate and Sustainability Certificate |
| (c) | Each Compliance Certificate and Sustainability Certificate shall be signed by one officer of the Parent Guarantor. |
| 24.4 | Requirements as to financial statements |
| (b) | The Borrowers shall procure that each set of financial statements delivered pursuant to Clause 24.2 (Financial statements) is prepared using GAAP. |
| reference periods and its auditors (or, if appropriate, the auditors of the Obligor) deliver to the Facility Agent: |
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
| 24.5 | DAC6 |
| (a) | In this Clause 24.5 (DAC6), "DAC6" means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU or any replacement legislation applicable in the United Kingdom. |
| (b) | Each Borrower shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests): |
| 24.6 | Information: miscellaneous |
Each Obligor shall provide to the Facility Agent (in sufficient copies for all the Lenders, if the Facility Agent so requests):
| (a) | all documents dispatched by it to its shareholders (or any class of them) unless of an administrative nature or to its creditors generally at the same time as they are dispatched; |
| (c) | on the date the Sustainability Certificate is provided as per Clause 24.3 (Compliance Certificate and Sustainability Certificate), information as to: |
| (d) | promptly, such further information and/or documents regarding: |
| (i) | each Ship, its Earnings and its Insurances; |
| (ii) | the Charged Property; |
| (iii) | compliance of the Transaction Obligors with the terms of the Finance Documents; |
| (iv) | the financial condition, business and operations of any member of the Group, |
as any Finance Party (through the Facility Agent) may reasonably request; and
| 24.7 | Information: sanctions |
The Obligors shall:
| 24.8 | Notification of default |
| 24.9 | Use of websites |
| (i) | the Facility Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method; |
| (ii) | both the relevant Obligor and the Facility Agent are aware of the address of and any relevant password specifications for the Designated Website; and |
| (iii) | the information is in a format previously agreed between the relevant Obligor and the Facility Agent. |
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Facility Agent shall notify the Obligors accordingly and each Obligor shall supply the information to the Facility Agent (in sufficient copies for each Paper Form Lender) in paper form. In any event each Obligor shall supply the Facility Agent with at least one copy in paper form of any information required to be provided by it.
| (c) | An Obligor shall promptly upon becoming aware of its occurrence notify the Facility Agent if: |
| (i) | the Designated Website cannot be accessed due to technical failure; |
| (ii) | the password specifications for the Designated Website change; |
| (iii) | any new information which is required to be provided under this Agreement is posted onto the Designated Website; |
| (iv) | any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or |
| (v) | if that Obligor becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software. |
If an Obligor notifies the Facility Agent under paragraph 24.9(c)(i) or paragraph 24.9(c)(v) above, all information to be provided by the Obligors under this Agreement after the date of that notice shall be supplied in paper form unless and until the Facility Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.
| 24.10 | "Know your customer" checks |
| (a) | If: |
| (i) | the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement; |
| (ii) | any change in the status of an Obligor after the date of this Agreement; |
| (iii) | a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer; or |
| (iv) | any anti-money laundering or anti-terrorism financing laws and regulations applicable to the Facility Agent or any Lender, |
obliges a Finance Party (or, in the case of paragraph (iii) above, 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, each Obligor shall promptly upon the request of any Finance Party supply, or procure the supply of, such documentation and other evidence as is reasonably requested by a Servicing Party (for itself or on behalf of any other Finance Party) or any Lender (for itself or, in the case of the event described in paragraph (iii) above, on behalf of any prospective new Lender) in order for such Finance Party or, in the case of the event described in paragraph (iii) above, any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.
| 25 | Financial Covenants |
| 25.1 | Financial covenants |
The Parent Guarantor shall at all times during the Security Period (save that in the case of paragraph (b) this shall apply from the first Utilisation Date throughout the remainder of the Security Period) on a consolidated basis maintain:
| (a) | a minimum Solvency of at least 30 per cent.; |
| (b) | minimum Cash and Cash Equivalents of an amount the greater of: |
| (i) | if the Fleet Vessel size is below 40 vessels: |
| (A) | $750,000 per Fleet Vessel; and |
| (B) | 5 per cent. of the Total Consolidated Debt; or |
| (ii) | upon the Fleet Vessel size increasing to 40 vessels or more: |
| (A) | $30,000,000; |
| (B) | $500,000 per Fleet Vessel; and |
| (C) | 5 per cent. of the Total Consolidated Debt, |
in each case, with at least 60 per cent. of such minimum amount being held in cash and, for the purposes of this paragraph 25.1(b), Cash and Cash Equivalents shall include undrawn amounts under the Revolving Facility provided that the Termination Date in relation to the Revolving Facility is not within the next 12 Months;
| (c) | a positive Working Capital excluding: |
| (i) | Balloon Repayments; and |
| (ii) | any amounts outstanding under the ABN AMRO Receivables Facility Agreement provided that the facility provided thereunder has a remaining maturity of more than three months, |
in this instance current liabilities shall exclude the current portion of debt and leases;
| (d) | an Adjusted Tangible Net Worth of not less than $200,000,000; and |
| (e) | compliance with Clause 29.1 (Minimum required security cover). |
The financial covenants contained in this Clause 25.1 (Financial covenants) shall, following the first Utilisation Date, be tested quarterly (save in the case of paragraph 25.1(e) above which shall be tested on 30 June and 30 December of each year) on the basis of the annual and quarterly financial statements provided under Clause 24.2 (Financial statements) and shall be confirmed in the relevant compliance certificate referred to in Clause 24.3 (Compliance Certificate and Sustainability Certificate).
In addition, for the purpose of testing the Fair Market Value of the Fleet Vessels, the Borrowers shall provide valuations of the Fleet Vessels in June and December of each year during the Security Period and the most recent of such valuations shall be used to determine the Fair Market Value of the Fleet Vessels. Provided that, in the case of testing the financial covenants at the end of the first and third financial quarters in each year, the Borrowers shall obtain up to date Fair Market Values of any of the Fleet Vessels if requested by the Agent, acting on the instructions of the Majority Lenders. The valuations shall be at the Borrower's cost, but no more than twice per year, unless the valuations show a breach of the required security cover ratio in Clause 29.1 (Minimum required security cover), in which case any additional valuations will be at the Borrower's cost.
| 25.2 | Financial covenant definitions |
The expressions used in this Clause 25 (Financial Covenants) shall be construed in accordance with GAAP as applicable, or for the purposes of this Agreement:
| (a) | cash in hand or held with banks or financial institutions of the Parent Guarantor in Dollars or another currency freely convertible in Dollars, which is free of any Security; |
| (b) | any cash equivalent of the Parent Guarantor and/or its Subsidiaries; and |
| (c) | any marketable securities of the Parent Guarantor and/or its Subsidiaries which are free of any Security, |
as stated in the most recent financial statements of the Group provided in accordance with Clause 24.2 (Financial statements) and determined in accordance with GAAP.
| (a) | by using the Market Value Adjusted Total Assets value for the Fleet Vessels; and |
| (b) | by excluding intangible assets (including goodwill but not long-term contract revenue is acquired as part of a business combination). |
"Current Assets" means the current assets of the Parent Guarantor on a consolidated basis as stated in the most recent financial statements of the Group provided in accordance with Clause 24.2 (Financial statements) and determined in accordance with GAAP.
"Revolving Facility" means each of:
| (i) | the revolving credit facility made available under the facilities agreement dated 30 June 2022, as amended and restated on 29 July 2022 and made between (i) Faroe Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Fair Isle Shipco LLC, Humber Shipco LLC, Forth Shipco LLC, Trafalgar Shipco LLC, Wight Shipco LLC, Saltee Shipco LLC and Blasket Shipco LLC as joint and several borrowers and hedge guarantors, (ii) Ardmore Shipping LLC as corporate guarantor, (iii) Ardmore Shipping Corporation as parent guarantor (iv) the banks and financial institutions named therein as lenders, (v) the banks and financial institutions named therein as hedge counterparties, (vi) Nordea Bank Abp, filial i Norge and Skandinaviska Enskilda ▇▇▇▇▇▇ ▇▇ (publ) as mandated lead arrangers and bookrunners, (vii) Skandinaviska Enskilda ▇▇▇▇▇▇ ▇▇ (publ) as documentation agent and sustainability coordinator and (viii) Nordea Bank Abp, filial i Norge as facility agent and security agent, in relation to facilities of up to $245,500,000 comprising a revolving credit facility in a principal amount not exceeding $185,500,000 and an accordion facility in a principal amount not exceeding $60,000,000; |
| (ii) | the revolving credit facility made available under this Agreement; and |
| (iii) | any other committed revolving credit facilities in which the Borrowers may enter into, with the Facility Agent’s prior written approval. |
| 25.3 | Most favoured Lenders |
In the event that the Parent Guarantor agrees to the incorporation of any additional financial covenants or financial covenants which are more onerous than those contained in Clause 25.1 (Financial covenants) into any financial contract or financial document relating to any other senior secured indebtedness of the Parent Guarantor, the Parent Guarantor shall immediately notify the Facility Agent and those financial covenants shall be deemed to apply to this Agreement as if set out in full herein with effect from the date of such financial contract or financial document and during the currency of that financial contract or financial document. The Parent Guarantor shall enter into additional documentation as the Facility Agent may reasonably require in respect of such incorporation.
| 26 | General Undertakings |
| 26.1 | General |
The undertakings in this Clause 26 (General Undertakings) remain in force throughout the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
| 26.2 | Authorisations |
Each Obligor shall, and shall procure that each other Transaction Obligor will, promptly:
| (a) | obtain, comply with and do all that is necessary to maintain in full force and effect; and |
| (b) | supply certified copies to the Facility Agent, |
| (c) | of any Authorisation required under any law or regulation of a Relevant Jurisdiction or the state of the Approved Flag at any time of each Ship to enable it to: |
| (i) | perform its obligations under the Transaction Documents to which it is a party; |
| (iii) | own and operate each Ship (in the case of the Borrowers). |
| 26.3 | Compliance with laws |
Each Obligor shall, and shall procure that each other member of the Group and each Affiliate of any of them shall, comply in all respect with all laws and regulations to which it may be subject, including Sanctions, all Anti-Corruption Laws and all anti-money laundering laws.
| 26.4 | Sanctions |
| (a) | Each Obligor shall (and shall procure that each member of the Group will) comply with all Sanctions. |
| (b) | Each Obligor shall ensure that neither it nor any member of the Group is or will become a Restricted Party, or act on behalf of, or as an agent of, a Restricted Party, and each Obligor |
| shall use reasonable endeavours to procure that no director, officer, employee, agent or representative of it or of any Subsidiary is or will become a Restricted Party. |
| 26.5 | Environmental compliance |
Each Obligor shall, and shall procure that each other Transaction Obligor will, and the Parent Guarantor shall ensure that each other member of the Group will:
| (a) | comply with all Environmental Laws; |
| (b) | obtain, maintain and ensure compliance with all requisite Environmental Approvals; |
| (c) | implement procedures to monitor compliance with and to prevent liability under any Environmental Law, |
in relation to a member of the Group not including an Obligor only, where failure to do so has had or could reasonably be expected to have a Material Adverse Effect.
| 26.6 | Environmental claims |
Each Obligor shall, and shall procure that each other Transaction Obligor will, (through the Parent Guarantor), promptly upon becoming aware of the same, inform the Facility Agent in writing of:
| (a) | any Environmental Claim against any member of the Group which is current, pending or threatened; and |
| (b) | any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any member of the Group, |
where the claim against a member of the Group not including an Obligor, has had or could reasonably be expected to have a Material Adverse Effect.
| 26.7 | Taxation |
| (i) | such payment is being contested in good faith; |
| (iii) | such payment can be lawfully withheld and failure to pay those Taxes does not have or could not reasonably be expected to have a Material Adverse Effect. |
| (b) | No Obligor shall change its residence for Tax purposes. |
| 26.8 | Overseas companies |
Each Obligor shall promptly inform the Facility Agent if it delivers to the Registrar particulars required under the Overseas Regulations of any UK Establishment and it shall comply with any directions given to it by the Facility Agent regarding the recording of any Transaction Security on the register which it is required to maintain under The Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009.
| 26.9 | Pari passu ranking |
Each Obligor shall, and shall procure that each other Transaction Obligor will, ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.
| 26.10 | Title |
| (a) | From the first Utilisation Date, Borrower A shall hold the legal title to, and own the entire beneficial interest in Ship A, its Earnings and its Insurances. |
| (b) | From the first Utilisation Date, Borrower B shall hold the legal title to, and own the entire beneficial interest in Ship B, its Earnings and its Insurances. |
| (c) | From the first Utilisation Date, Borrower C shall hold the legal title to, and own the entire beneficial interest in Ship C, its Earnings and its Insurances. |
| (d) | From the first Utilisation Date, Borrower D shall hold the legal title to, and own the entire beneficial interest in Ship D, its Earnings and its Insurances. |
| (e) | From the Utilisation Date in respect of Ship E, Borrower E shall hold the legal title to, and own the entire beneficial interest in Ship E, its Earnings and its Insurances. |
| (f) | From the Utilisation Date in respect of Ship F, Borrower F shall hold the legal title to, and own the entire beneficial interest in Ship F, its Earnings and its Insurances. |
| (g) | From the Utilisation Date in respect of Ship G, Borrower G shall hold the legal title to, and own the entire beneficial interest in Ship G, its Earnings and its Insurances. |
| 26.11 | Negative pledge |
| (a) | No Borrower shall create or permit to subsist any Security over any of its assets which are the subject of the Security created or intended to be created by the Finance Documents. |
| (b) | No Borrower shall: |
| (i) | sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by a Borrower or any other member of the Group; |
| (ii) | sell, transfer or otherwise dispose of any of its receivables on recourse terms; or |
| (iii) | enter into any other preferential arrangement having a similar effect, |
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
| (c) | Paragraphs (a) and (b) above do not apply to any Permitted Security. |
| 26.12 | Disposals |
| (b) | Paragraph (a) above does not apply to any charter of a Ship to which Clause 28.14 (Restrictions on chartering, appointment of managers etc.) applies. |
| 26.13 | Merger |
No Obligor shall enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction Provided that this restriction shall not apply if there is no change of control (as defined in Clause 8.3(b) (Change of control)) of the Obligors and the Obligors are in compliance with Clause 8.3 (Change of control) after any such amalgamation, demerger, merger, consolidation or corporate reconstruction.
| 26.14 | Change of business |
| (a) | The Parent Guarantor shall procure that no substantial change is made to the general nature of the business of the Parent Guarantor or the Group from that carried on at the date of this Agreement. |
| (b) | No Borrower shall engage in any business other than the ownership and operation of its Ship. |
| 26.15 | Financial Indebtedness |
The Borrowers shall not incur any Financial Indebtedness except for Permitted Financial Indebtedness.
| 26.16 | Expenditure |
No Borrower shall incur any expenditure, except for expenditure reasonably incurred in the ordinary course of owning, operating, maintaining and repairing its Ship.
| 26.17 | Membership interests |
No Borrower shall:
| (a) | purchase, cancel or redeem any of its membership interests; |
| (b) | increase or reduce its authorised membership interests; |
| (d) | appoint any further director or officer of that ▇▇▇▇▇▇▇▇ (unless the provisions of the Membership Interests Security applicable to that Borrower are complied with). |
| 26.18 | Dividends |
Each Obligor may make or pay any dividend or other distribution (in cash or in kind) in respect of its membership interests provided always that no Default has occurred and is continuing or would result from the making of any such payment and for the avoidance of doubt, there is no breach of Clause 25 (Financial Covenants) resulting from a payment of any such dividend.
| 26.19 | Accounts |
No Borrower shall open or maintain any account with any bank or financial institution except its Earnings Account and accounts with the Account Bank, the Facility Agent or the Security Agent for the purposes of the Finance Documents.
| 26.20 | Other transactions |
No Borrower shall:
| (a) | be the creditor in respect of any loan or any form of credit to any person other than another Obligor and where such loan or form of credit is Permitted Financial Indebtedness; |
| (c) | enter into any material agreement other than: |
| (i) | the Transaction Documents; |
| (ii) | any other agreement expressly allowed under any other term of this Agreement; and |
| (d) | enter into any transaction on terms which are, in any respect, less favourable to that Borrower than those which it could obtain in a bargain made at arms' length; or |
| (e) | acquire any shares or other securities other than US or UK Treasury bills and certificates of deposit issued by major North American or European banks. |
| 26.21 | Unlawfulness, invalidity and ranking; Security imperilled |
No Obligor shall, and the Obligors shall procure that no other Transaction Obligor will, do (or fail to do) or cause or permit another person to do (or omit to do) anything which could be expected to:
| (a) | make it unlawful for an Obligor to perform any of its obligations under the Transaction Documents; |
| (b) | cause any obligation of an Obligor under the Transaction Documents to cease to be legal, valid, binding or enforceable; |
| (c) | cause any Transaction Document to cease to be in full force and effect; |
| (d) | cause any Transaction Security to rank after, or lose its priority to, any other Security; and |
| (e) | imperil or jeopardise the Transaction Security. |
| 26.22 | Further assurance |
| (iv) | to enable or assist the Security Agent to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any item of the Security Property. |
| (i) | set out the text of a resolution of that Transaction Obligor's directors specifically authorising the execution of the document specified by the Security Agent; and |
| 26.23 | Transactions with Affiliates and Intercompany Borrowings |
| (a) | The Obligors each undertake that any intercompany loan to be made to a Borrower by either of the Guarantors will be: |
| (ii) | not bear any cash interest; |
| (iii) | have a maturity date of at least one year after the Termination Date; and |
| (iv) | shall not be secured against any of the Ships or other Security which secures the Borrowers' obligations hereunder. |
| redemption of preference shares shall be permitted subject to the provisions of Clause 26.18 (Dividends) and provided always that no Default has occurred and is continuing or would result from the making of any such payment. |
| 26.24 | Maintenance of listing |
The Parent Guarantor shall at all times during the Security Period maintain its listing as a publicly-traded corporation on the New York Stock Exchange.
| 27 | Insurance Undertakings |
| 27.1 | General |
In respect of a Ship, the undertakings in this Clause 27 (Insurance Undertakings) shall apply and remain in force on and from the date of this Agreement and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
| 27.2 | Maintenance of obligatory insurances |
Each Borrower shall keep the Ship owned by it insured at its expense against:
| (a) | fire and usual marine risks (including hull and machinery, increased value and excess risks); |
| (b) | war risks (including blocking and trapping); |
| (c) | protection and indemnity risks (including freight, demurrage and defence); and |
| 27.3 | Terms of obligatory insurances |
In respect of each Ship, the Borrowers shall effect such insurances:
| (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 Ships then subject to a Mortgage, 120 per cent. of the Loan; and |
| (ii) | the market value of that Ship; |
| (d) | in the case of protection and indemnity risks, in respect of the full tonnage of its Ship; |
| (e) | on approved terms; and |
| 27.4 | Further protections for the Finance Parties |
In addition to the terms set out in Clause 27.3 (Terms of obligatory insurances), each Borrower shall procure that the obligatory insurances effected by it shall:
| (a) | subject always to paragraph (b), name that ▇▇▇▇▇▇▇▇ as the sole named assured unless the interest of every other named assured is limited: |
| (i) | in respect of any obligatory insurances for hull and machinery and war risks; |
| (A) | to any provable out-of-pocket expenses that it has incurred and which form part of any recoverable claim on underwriters; and |
| (B) | to any third party liability claims where cover for such claims is provided by the policy (and then only in respect of discharge of any claims made against it); and |
and every other named assured has undertaken in writing to the Security Agent (in such form as it requires) that any deductible shall be apportioned between that Borrower and every other named assured in proportion to the gross claims made or paid by each of them and that it shall do all things necessary and provide all documents, evidence and information to enable the Security Agent to collect or recover any moneys which at any time become payable in respect of the obligatory insurances;
| (c) | name the Security Agent as loss payee with such directions for payment as the Facility Agent may specify; |
| (d) | provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Agent 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 Agent or any other Finance Party; and |
| (f) | provide that the Security Agent may make proof of loss if that ▇▇▇▇▇▇▇▇ fails to do so. |
| 27.5 | Renewal of obligatory insurances |
Each Borrower shall:
| (a) | at least 21 days before the expiry of any obligatory insurance effected by it: |
| (ii) | obtain the Facility Agents' approval to the matters referred to in sub-paragraph (i) of paragraph (a) above; |
| (b) | at least 14 days before the expiry of any obligatory insurance, renew that obligatory insurance in accordance with the Facility Agent's approval pursuant to paragraph (a) above; and |
| 27.6 | Copies of policies; letters of undertaking |
Each Borrower shall ensure that the Approved Brokers provide the Security Agent with:
| (a) | pro forma copies of all policies relating to the obligatory insurances which they are to effect or renew; and |
| (b) | a letter or letters or undertaking in a form required by the Facility Agent and including undertakings by the Approved Brokers that: |
| (ii) | they will hold such policies, and the benefit of such insurances, to the order of the Security Agent in accordance with such loss payable clause; |
| (iii) | they will advise the Security Agent immediately of any material change to the terms of the obligatory insurances; |
| (v) | if they receive instructions to renew the obligatory insurances, they will promptly notify the Facility Agent of the terms of the instructions; |
| (vi) | they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Borrower under such obligatory insurances any premiums or other |
| amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason of non-payment of such premiums or other amounts; and |
| (vii) | they will arrange for a separate policy to be issued in respect of the Ship owned by that ▇▇▇▇▇▇▇▇ forthwith upon being so requested by the Facility Agent. |
| 27.7 | Copies of certificates of entry |
Each Borrower shall ensure that any protection and indemnity and/or war risks associations in which the Ship owned by it is entered provide the Security Agent with:
| (a) | a certified copy of the certificate of entry for that Ship; |
| (b) | a letter or letters of undertaking in such form as may be required by the Facility Agent acting on the instructions of Majority Lenders; and |
| 27.8 | Deposit of original policies |
Each Borrower shall ensure that all policies relating to obligatory insurances effected by it are deposited with the Approved Brokers through which the insurances are effected or renewed.
| 27.9 | Payment of premiums |
Each Borrower shall punctually pay all premiums or other sums payable in respect of the obligatory insurances effected by it and produce all relevant receipts when so required by the Facility Agent or the Security Agent.
| 27.10 | Guarantees |
Each Borrower shall ensure that any guarantees required by a protection and indemnity or war risks association are promptly issued and remain in full force and effect.
| 27.11 | Compliance with terms of insurances |
| (b) | Without limiting paragraph (a) above, each Borrower shall: |
| (ii) | not make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances; |
| 27.12 | Alteration to terms of insurances |
No Borrower shall make or agree to any alteration to the terms of any obligatory insurance or waive any right relating to any obligatory insurance.
| 27.13 | Settlement of claims |
Each Borrower shall:
| (a) | not settle, compromise or abandon any claim under any obligatory insurance for Total Loss or for a Major Casualty; and |
| 27.14 | Provision of copies of communications |
Each Borrower shall provide the Security Agent, at the time of each such communication, with copies of all written communications between that ▇▇▇▇▇▇▇▇ and:
| (a) | the Approved Brokers; |
| (b) | the approved protection and indemnity and/or war risks associations; and |
| (c) | the approved insurance companies and/or underwriters, |
which relate directly or indirectly to:
| (i) | that Borrower's obligations relating to the obligatory insurances including, without limitation, all requisite declarations and payments of additional premiums or calls; and |
| 27.15 | Provision of information |
Each Borrower shall promptly provide the Facility Agent (or any persons which it may designate) with any information which the Facility Agent (or any such designated person) requests for the purpose of:
| (a) | obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or |
and the Borrowers shall, forthwith upon demand, indemnify the Security Agent in respect of all fees and other expenses incurred by or for the account of the Security Agent in connection with any such report as is referred to in paragraph (a) above.
| 27.16 | Mortgagee's interest and additional perils insurances |
| 28 | Ship Undertakings |
| 28.1 | General |
In respect of a Ship, the undertakings in this Clause 28 (Ship Undertakings) shall apply and remain in force on and from the date of this Agreement and throughout the rest of the Security Period except as the Facility Agent, acting with the authorisation of the Majority Lenders (or, where specified, all the Lenders) may otherwise permit.
| 28.2 | Ships' names and registration |
Each Borrower shall, in respect of the Ship owned by it:
| (a) | keep that Ship registered in its name under an Approved Flag from time to time at its port of registration; |
| (b) | not do or allow to be done anything as a result of which such registration might be suspended, cancelled or imperilled; and |
| (c) | not change the name of that Ship, |
provided that any change of flag of a Ship shall be subject to:
| (ii) | the execution of such other documentation amending and supplementing the Finance Documents as the Facility Agent, acting with the authorisation of the Majority Lenders, shall approve or require. |
| 28.3 | Repair and classification |
Each Borrower shall keep the Ship owned by it in a good and safe condition and state of repair:
| (a) | consistent with first class ship ownership and management practice; and |
| (b) | so as to maintain the Approved Classification free of overdue recommendations and conditions affecting that Ship's class. |
| 28.4 | Modifications |
No Borrower shall unless after consultation, and agreement, with the Facility Agent, make any modification or repairs to, or replacement of, any Ship or equipment installed on it which would or might materially alter the structure, type or performance characteristics of that Ship or materially reduce its value save for changes or modifications that are required to be made in order to satisfy updated rules and regulations from time to time applicable to that Ship.
| 28.5 | Removal and installation of parts |
| (a) | Subject to paragraph (b) below, no Borrower shall remove any material part of any Ship, or any item of equipment installed on any Ship unless the part or item so removed: |
| (i) | 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; |
| (ii) | is free from any Security in favour of any person other than the Security Agent; and |
| (iii) | becomes, on installation on that Ship, the property of that ▇▇▇▇▇▇▇▇ and subject to the security constituted by the Mortgage on that Ship. |
| (b) | A Borrower may install equipment owned by a third party if the equipment can be removed without any risk of damage to the Ship owned by that Borrower. |
| 28.6 | Surveys |
Each Borrower shall submit the Ship owned by it regularly to all periodic or other surveys which may be required for classification purposes and, if so required by the Facility Agent acting on the instructions of the Majority Lenders, provide the Facility Agent, with copies of all survey reports and, in addition, the Facility Agent shall have the right to have a technical survey carried out at any time on each Ship and the Borrowers shall pay the cost of 1 such survey of each Ship per year at the Facility Agent's request.
| 28.7 | Inspection |
Each Borrower shall permit the Security Agent (acting through surveyors or other persons appointed by it for that purpose) to board the Ship owned by it at all reasonable times and at least once per calendar year to inspect its condition or to satisfy themselves about proposed or executed repairs and shall afford all proper facilities for such inspections provided that the Facility Agent provides three months' notice of the intended date of such inspection and such inspection does not delay or interfere with that Ship's operation, loading or unloading, unless an Event of Default has occurred, in which case as often as the Facility Agent shall be entitled to perform an inspection whether or not it interferes with the trading and operation of the Ship.
| 28.8 | Prevention of and release from arrest |
| (a) | Each Borrower shall, in respect of the Ship owned by it, promptly discharge amounts due in respect of: |
| (i) | all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against that Ship, its Earnings or its Insurances; |
| (ii) | all Taxes, dues and other amounts charged in respect of that Ship, its Earnings or its Insurances; and |
| (iii) | all other outgoings whatsoever in respect of that Ship, its Earnings or its Insurances. |
| 28.9 | Compliance with laws etc. |
Each Borrower shall:
| (a) | comply, or procure compliance with all laws or regulations: |
| (i) | relating to its business generally; and |
| (ii) | relating to the Ship owned by it, its ownership, employment, operation, management and registration, |
including the ISM Code, the ISPS Code, all Environmental Laws, all Sanctions and the laws of the Approved Flag;
| (b) | obtain, comply with and do all that is necessary to maintain in full force and effect any Environment Approvals; |
| (d) | procure that neither any Obligor nor any other member of the Group is or becomes a Restricted Party. |
| 28.10 | ISPS Code |
Without limiting paragraph (a) of Clause 28.9 (Compliance with laws etc.), each Borrower shall:
| (a) | procure that the Ship owned by it and the company responsible for that Ship's compliance with the ISPS Code comply with the ISPS Code; and |
| (b) | maintain an ISSC for that Ship; and |
| (c) | notify the Facility Agent immediately in writing of any actual or threatened withdrawal, suspension, cancellation or modification of the ISSC. |
| 28.11 | Trading in war zones |
In the event of hostilities in any part of the world (whether war is declared or not), no Borrower shall cause or permit any Ship to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless either:
| (b) |
| (i) | the prior written consent of the Security Agent acting on the instructions of the Majority ▇▇▇▇▇▇▇ has been given; and |
| (ii) | that Borrower has (at its expense) effected any special, additional or modified insurance cover which the Security Agent acting on the instructions of the Majority Lenders may require. |
| 28.12 | Provision of information |
Without prejudice to Clause 24.6 (Information: miscellaneous) each Borrower shall, in respect of the Ship owned by it, promptly provide the Facility Agent with any information which it requests regarding:
| (a) | that Ship, its employment, position and engagements; |
| (b) | the Earnings and payments and amounts due to its master and crew; |
| (c) | any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of that Ship and any payments made by it in respect of that Ship; |
| (d) | any towages and salvages; and |
| (e) | its compliance, the Approved Manager's compliance and the compliance of that Ship with the ISM Code and the ISPS Code, |
and, upon the Facility Agent's request, provide copies of any current charter relating to that Ship, of any current guarantee of any such charter, the Ship's Safety Management Certificate and any relevant Document of Compliance.
| 28.13 | Notification of certain events |
Each Borrower shall, in respect of the Ship owned by it, immediately notify the Facility Agent by electronic mail, confirmed forthwith by letter of:
| (a) | any casualty to that Ship which is or could reasonably be expected to be or to become a Major Casualty; |
| (b) | any occurrence as a result of which that Ship has become or could reasonably be expected, by the passing of time or otherwise, to become a Total Loss; |
| (c) | any requisition of that Ship for hire; |
| (d) | any requirement or recommendation made in relation to that Ship by any insurer or classification society or by any competent authority which is not immediately complied with; |
| (e) | any arrest or detention of that Ship, any exercise or purported exercise of any lien on that Ship or the Earnings or any requisition of that Ship for hire; |
| (f) | any intended dry docking of that Ship; |
| (g) | any Environmental Claim made against that Borrower or in connection with that Ship, or any Environmental Incident; |
| (h) | any claim for breach of the ISM Code or the ISPS Code being made against that Borrower, an Approved Manager or otherwise in connection with that Ship; 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 each Borrower shall keep the Facility Agent advised in writing on a regular basis and in such detail as the Facility Agent shall require as to that ▇▇▇▇▇▇▇▇'s, any such Approved Manager's or any other person's response to any of those events or matters.
| 28.14 | Restrictions on chartering, appointment of managers etc. |
No Borrower shall, in relation to the Ship owned by it:
| (a) | let that Ship on demise charter for any period; |
| (b) | enter into any time or consecutive voyage charter in respect of that Ship other than a Permitted Charter; |
| (c) | appoint a manager of that Ship other than the Approved Commercial Manager and the Approved Technical Manager or agree to any alteration to the terms of an Approved Manager's appointment; |
| (d) | de activate or lay up that Ship; or |
| 28.15 | Notice of Mortgage |
Each Borrower shall keep the relevant Mortgage registered against the Ship owned by it as a valid first priority or preferred mortgage, carry on board that Ship a certified copy of the relevant Mortgage and place and maintain in a conspicuous place in the navigation room and the master's cabin of that Ship a framed printed notice stating that that Ship is mortgaged by that Borrower to the Security Agent.
| 28.16 | Sharing of Earnings |
No Borrower shall enter into any agreement or arrangement for the sharing of any Earnings, except for a Pool Agreement (if any), (for the avoidance of doubt) or pursuant to a time charter entered into by a Borrower with a third party which includes profit sharing agreements which (except in the case of a Permitted Charter where no further approval is required) are on terms approved by the Lenders.
| 28.17 | Inventory of Hazardous Materials |
Each Borrower shall procure that the Ship owned by it has, from the date the Borrower which owns that Ship is legally obliged to do so, obtained an Inventory of Hazardous Material, in respect of said Ship which shall be maintained until the Loan has been fully repaid.
| 28.18 | Sustainable and socially responsible dismantling of Ships |
Each of the Obligors confirms that as long as it is in a lending relationship with any Lender, it will ensure that any Ship controlled by it or sold to an intermediary with the intention of being scrapped, is recycled at a recycling yard which conducts its recycling business in a socially and environmentally responsible manner, in accordance with the provisions of The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and/or EU Ship Recycling Regulation.
| 28.19 | Poseidon Principles |
Each Borrower shall, upon the reasonable request of any Lender and at the cost of the Borrowers, on or before 31 July in each calendar year, supply or procure the supply by the Approved Classification Society (as specified by the relevant Lender) to such Lender of all information necessary in order for any Lender to comply with its obligations under the Poseidon Principles in respect of the preceding year, including, without limitation, all ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI and any Statement of Compliance, together with a Carbon Intensity and Climate Alignment Certificate or equivalent, in each case relating to the Ship owned by it for the preceding calendar year provided always that, for the avoidance of doubt, such information shall be "Confidential Information" for the purposes of Clause 47 (Confidentiality) but the Obligors acknowledge that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the relevant Lender's portfolio climate alignment.
| 28.20 | Sanctions and Ship trading |
| (a) | Without limiting Clause 28.9 (Compliance with laws etc.), each Borrower shall procure: |
| (i) | that the Ship owned by it shall not be used by or for the benefit of a Restricted Party; |
| (iii) | that such Ship shall not be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and |
| 28.21 | Anti-terrorism |
The Borrowers shall, and shall ensure that each of the other Obligors will, comply with all anti-terrorism laws in each case applicable to it and shall take all actions necessary or which may be required by the Lenders to allow the Lenders to comply with any anti-terrorism laws applicable to it.
| 28.22 | Notification of compliance |
Each Borrower shall promptly provide the Facility Agent from time to time with evidence (in such form as the Facility Agent requires) that it is complying with this Clause 28 (Ship Undertakings).
| 29 | Security Cover |
| 29.1 | Minimum required security cover |
Clause 29.2 (Provision of additional security; prepayment) applies if, the Facility Agent notifies the Borrowers that:
| (i) | the aggregate Fair Market Value of each Ship then subject to a Mortgage and which has not become a Total Loss; plus |
| (ii) | the net realisable value of additional Security previously provided under this Clause 29 (Security Cover), |
is below 130 per cent. of the aggregate of the Loan and, in circumstances where a Hedging Agreement has been entered into with a Hedge Counterparty, the Hedging Close Out Liabilities.
| 29.2 | Provision of additional security; prepayment |
| (i) | has a net realisable value at least equal to the shortfall; and |
| (ii) | is documented in such terms as the Facility Agent may approve or require, |
before the Prepayment Date; and conditional upon such security being provided in such manner, it shall satisfy such prepayment obligation.
| 29.3 | Value of additional vessel security |
The net realisable value of any additional security which is provided under Clause 29.2 (Provision of additional security; prepayment) and which consists of Security over a vessel shall be the Fair Market Value of the vessel concerned.
| 29.4 | Valuations binding |
Any valuation under this Clause 29 (Security Cover) shall be binding and conclusive as regards each Borrower.
| 29.5 | Provision of information |
| 29.6 | Prepayment mechanism |
Any prepayment pursuant to Clause 29.2 (Provision of additional security; prepayment) shall be made in accordance with the relevant provisions of Clause 8 (Payment and Cancellation) but ignoring any restriction as to prepayments being made on the last day of the Interest Period.
| 29.7 | Provision of valuations |
| (b) | The valuations referred to in this Clause 29.7 (Provision of valuations) are to be obtained: |
| (ii) | at any other time requested by the Facility Agent in its absolute discretion. |
| 30 | Application of Earnings |
| 30.1 | Payment of Earnings |
Each Borrower shall ensure that,
| (a) | subject only to the provisions of the General Assignment to which it is a party, all the Earnings in respect of the Ship owned by it are paid in to its Earnings Account; and |
| (b) | all payments by a Hedge Counterparty to that Borrower under a Hedging Agreement are paid to the Earnings Account. |
| 30.2 | Use of credit balances on the Earnings Account |
Each Borrower may withdraw moneys from the Earnings Account in its name provided that no Default is continuing.
| 30.3 | Location of accounts |
Each Borrower shall promptly:
| (a) | comply with any requirement of the Facility Agent as to the location or relocation of its Earnings Account (or any of them); and |
| 31 | Events of Default |
| 31.1 | General |
Each of the events or circumstances set out in this Clause 31 (Events of Default) is an Event of Default except for Clause 31.17 (Acceleration) and Clause 31.18 (Enforcement of security).
| 31.2 | Non-payment |
An Obligor does not pay on the due date any amount payable pursuant to a Finance Document at the place at and in the currency in which it is expressed to be payable unless:
| (a) | its failure to pay is caused by: |
| (i) | administrative or technical error (including intermediary bank delays); or |
| (ii) | a Disruption Event; and |
| (b) | payment is made within 3 Business Days of its due date. |
| 31.3 | Specific obligations |
A breach occurs of Clause 4.4 (Waiver of conditions precedent), Clause 23.34 (Sanctions), Clause 25 (Financial Covenants), Clause 26.4 (Sanctions), Clause 26.10 (Title), Clause 26.11 (Negative pledge), Clause 26.21 (Unlawfulness, invalidity and ranking; Security imperilled), Clause 28.20 (Sanctions and Ship trading), Clause 27.2 (Maintenance of obligatory insurances), Clause 27.3 (Terms of obligatory insurances), Clause 27.5 (Renewal of obligatory insurances), Clause 28.3 (Repair and classification) or, save to the extent such breach is a failure to pay and therefore subject to Clause 31.2 (Non-payment), Clause 29 (Security Cover).
| 31.4 | Other obligations |
| (a) | A Transaction Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 31.2 (Non-payment) and Clause 31.3 (Specific obligations)). |
| 31.5 | Misrepresentation |
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents or any other document delivered by or on behalf of any Transaction Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made and which has had or could reasonably be expected to have a Material Adverse Effect.
| 31.6 | Cross default |
| (a) | Any Financial Indebtedness of any Obligor is not paid when due nor within any originally applicable grace period. |
| (b) | Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described). |
| (c) | Any commitment for any Financial Indebtedness of any Obligor is cancelled or suspended by a creditor of any Obligor as a result of an event of default (however described). |
| 31.7 | Insolvency |
| (a) | An Obligor: |
| (i) | is unable or admits inability to pay its debts as they fall due; |
| (ii) | is deemed to, or is declared to, be unable to pay its debts under applicable law; |
| (iii) | suspends or threatens to suspend making payments on any of its debts; or |
| (b) | The value of the assets of any Obligor is less than its liabilities (taking into account contingent and prospective liabilities). |
| (c) | A moratorium is declared in respect of any indebtedness of any Obligor. If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium. |
| 31.8 | Insolvency proceedings |
| (a) | Any corporate action, legal proceedings or other procedure or step is taken in relation to: |
| (ii) | a composition, compromise, assignment or arrangement with any creditor of any member of the Group; |
| (iv) | enforcement of any Security over any assets of any member of the Group, |
or any analogous procedure or step is taken in any jurisdiction.
| (b) | Paragraph (a) above shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement. |
| 31.9 | Creditors' process |
Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an Obligor having an aggregate value of $1,500,000.
| 31.10 | Unlawfulness, invalidity and ranking |
| (a) | It is or becomes unlawful for a Transaction Obligor to perform any of its obligations under the Finance Documents. |
| (d) | Any Transaction Security proves to have ranked after, or loses its priority to, any other Security. |
| 31.11 | Security imperilled |
Any Security created or intended to be created by a Finance Document is in any way imperilled or in jeopardy.
| 31.12 | Cessation of business |
Any Obligor suspends or ceases to carry on (or threatens to suspend or ceases to carry on) all or a material part of its business.
| 31.13 | Expropriation |
The authority or ability of any member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other person in relation to any member of the Group or any of its assets.
| 31.14 | Repudiation and rescission of agreements |
An Obligor (or any other relevant party) rescinds or purports to rescind or repudiates or purports to repudiate a Transaction Document or any of the Transaction Security or evidences an intention to rescind or repudiate a Transaction Document or any Transaction Security.
| 31.15 | Litigation |
Any litigation, arbitration, administrative, governmental, regulatory or other investigations, proceedings or disputes are commenced or threatened in relation to any of the Transaction Documents or the transactions contemplated in any of the Transaction Documents or against any member of the Group or its assets which has or may have a Material Adverse Effect and, for the avoidance of doubt, this clause shall not apply to any proceedings or dispute which is frivolous or vexatious and is discharged, stayed or dismissed within 14 days of commencement.
| 31.16 | Material adverse change |
Any event or circumstance occurs which has had or could reasonably be expected to have a Material Adverse Effect.
| 31.17 | Acceleration |
On and at any time after the occurrence of an Event of Default which is continuing the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrowers:
| (a) | cancel the Total Commitments, whereupon they shall immediately be cancelled; |
| (c) | declare that all or part of the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Lenders, |
and the Facility Agent may serve notices under paragraphs (a), (b) and (c) above simultaneously or on different dates and the Security Agent may take any action referred to in Clause 31.18 (Enforcement of security) if no such notice is served or simultaneously with or at any time after the service of any of such notice.
| 31.18 | Enforcement of security and other rights |
On and at any time after the occurrence of an Event of Default which is continuing the Security Agent may, and shall if so directed by the Majority Lenders, take any action which, as a result of the Event of Default or any notice served under Clause 31.17 (Acceleration), the Security Agent is entitled to take under any Finance Document or any applicable law or regulation.
| 32 | Changes to the Lenders |
| 32.1 | Assignments and transfers by the Lenders |
Subject to this Clause 32 (Changes to the Lenders), a Lender (the "Existing Lender") may:
| (a) | assign any of its rights; or |
| (b) | transfer by novation any of its rights and obligations, |
under the Finance Documents to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (except for a hedge fund, other than at a time when a Default is continuing) (the "New Lender") but in no event to a member of the Group or a holding company, or holding company acting in concert, of the Parent Guarantor.
| 32.2 | Conditions of assignment or transfer |
| (a) | The consent of the Borrowers is required for an assignment or transfer by an Existing Lender, unless the assignment or transfer is: |
| (i) | to another Lender or an Affiliate of a Lender; |
| (iv) | made at a time when a Default is continuing. |
| (d) | An assignment will only be effective on: |
| (i) | receipt by the Facility Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the |
| Facility Agent) that the New Lender will assume the same obligations to the other Secured Parties as it would have been under if it were an Original Lender; and |
| (e) | A transfer will only be effective if the procedure set out in Clause 32.5 (Procedure for transfer) is complied with. |
| (f) | If: |
| (i) | a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and |
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.
| 32.3 | Assignment or transfer fee |
The New Lender shall, on or before the date upon which an assignment or transfer takes effect, pay to the Facility Agent (for its own account) a fee of $3,000 unless the assignment or transfer is to an Affiliate of the Existing Lender.
| 32.4 | Limitation of responsibility of Existing Lenders |
| (a) | Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for: |
| (i) | the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents, the Transaction Security or any other documents; |
| (ii) | the financial condition of any Transaction Obligor; |
| (iii) | the performance and observance by any Transaction Obligor of its obligations under the Finance Documents or any other documents; or |
| (iv) | the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document, |
and any representations or warranties implied by law are excluded.
| (b) | Each New Lender confirms to the Existing Lender and the other Finance Parties and the Secured Parties that it: |
| (ii) | will continue to make its own independent appraisal of the creditworthiness of each Transaction Obligor and its related entities throughout the Security Period. |
| (c) | Nothing in any Finance Document obliges an Existing Lender to: |
| (i) | accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 32 (Changes to the Lenders); or |
| (ii) | support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Transaction Obligor of its obligations under the Finance Documents or otherwise. |
| 32.5 | Procedure for transfer |
| (c) | Subject to Clause 32.9 (Pro rata interest settlement), on the Transfer Date: |
| (iv) | the New Lender shall become a Party as a "Lender". |
| 32.6 | Procedure for assignment |
| (c) | Subject to Clause 32.9 (Pro rata interest settlement), on the Transfer Date: |
| (iii) | the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations. |
| 32.7 | Copy of Transfer Certificate or Assignment Agreement to Borrowers |
The Facility Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Obligors a copy of that Transfer Certificate or Assignment Agreement.
| 32.8 | Security over Lenders' rights |
In addition to the other rights provided to Lenders under this Clause 32 (Changes to the Lenders), each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security 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 to secure obligations to a federal reserve or central bank; and |
except that no such charge, assignment or Security shall:
| 32.9 | Pro rata interest settlement |
If the Facility Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 32.5 (Procedure for transfer) or any assignment pursuant to Clause 32.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):
| (b) | The rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt: |
| (i) | when the Accrued Amounts become payable, those Accrued Amounts will be payable to the Existing Lender; and |
| 32.10 | Replacement of Lender by Borrowers |
| (a) | The Borrowers may, at any time (other than where an Event of Default or a Potential Event of Default has occurred and is continuing) in respect of: |
| (i) | a Lender whose costs of funds charged to the Borrowers are (in the Borrowers' reasonable opinion) materially higher than those of the other Lenders generally; or |
| (ii) | a Lender which is a Defaulting Lender; or |
| (iii) | a Lender which is a Non-Consenting Lender, |
| (b) | Any transfer of rights and obligations of an Outgoing Lender under this Clause is subject to the following conditions: |
| (i) | neither the Facility Agent nor the Outgoing Lender will have any obligation to the Borrowers to find a Replacement Lender; |
| (ii) | the transfer must take place no later than 10 Business Days after the Borrowers' notice referred to above; and |
| 33 | Changes to the Obligors |
| 33.1 | Assignment or transfer by Obligors |
No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
| 33.2 | Additional Borrowers |
| (ii) | it owns an Accordion Ship or Accordion Ships which is (or will be) subject to Security for any Advance pursuant to this Agreement; |
| (iii) | it delivers to the Facility Agent a duly completed and executed Accession Deed; and |
| (iv) | the Borrowers confirm that no Default is continuing or would occur as a result of that Subsidiary becoming an Additional Borrower; and |
| 34 | The Facility Agent and the Mandated Lead Arrangers |
| 34.1 | Appointment of the Facility Agent |
| (a) | Each other Finance Party appoints the Facility Agent to act as its agent under and in connection with the Finance Documents. |
| 34.2 | Duties of the Facility Agent |
| (f) | The Facility Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
| 34.3 | Role of the Mandated Lead Arrangers and Sustainability Coordinator |
Except as specifically provided in the Finance Documents, neither the Mandated Lead Arrangers nor the Sustainability Coordinator has any obligations of any kind to any other Party under, or in connection with, any Finance Document.
| 34.4 | No fiduciary duties |
| Lenders' instructions), 34.9 (Responsibility for documentation), 34.10 (Exclusion of liability), 34.11 (Lenders' indemnity to the Facility Agent) and 34.18 (Full freedom to enter into transactions). |
| (c) | Nothing in the Finance Documents constitutes the Facility Agent or either Mandated Lead Arranger a trustee of any other person. |
| 34.5 | Application of receipts |
Except as expressly stated to the contrary in any Finance Document, any moneys which the Facility Agent receives or recovers in its capacity as Facility Agent shall be applied by the Facility Agent in accordance with Clause 38.5 (Application of receipts; partial payments).
| 34.6 | Business with the Group |
The Facility Agent and either Mandated Lead Arranger may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
| 34.7 | Rights and discretions of the Facility Agent |
| (a) | The Facility Agent may rely on: |
| (i) | any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and |
| (ii) | any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify. |
| (b) | The Facility Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders) that: |
| (i) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 31.2 (Non-payment)); |
| (ii) | any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and |
| (iii) | any notice or request made by any Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors. |
| (c) | The Facility Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts. |
| (d) | The Facility Agent may act in relation to the Finance Documents through its personnel and agents. |
| (e) | The Facility Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. |
| 34.8 | Majority Lenders' instructions |
| (a) | Unless a contrary indication appears in a Finance Document, the Facility Agent shall: |
| (ii) | not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders. |
| (b) | Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties. |
| 34.9 | Responsibility for documentation |
Neither the Facility Agent nor either Mandated Lead Arranger:
| (b) | is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or the Transaction Security or any other agreement, arrangement or |
| document entered into or made or executed in anticipation of, or in connection with, any Transaction Document or the Transaction Security; or |
| 34.10 | Exclusion of liability |
| 34.11 | ▇▇▇▇▇▇▇' indemnity to the Facility Agent |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of its gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 38.11 (Disruption to Payment Systems etc.) notwithstanding the Facility Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by an Obligor pursuant to a Finance Document).
| 34.12 | Resignation of the Facility Agent |
| (a) | The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrowers. |
| (b) | Alternatively, the Facility Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority ▇▇▇▇▇▇▇ may appoint a successor Facility Agent. |
| (e) | The Facility Agent's resignation notice shall only take effect upon the appointment of a successor. |
| (h) | The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Facility Agent. |
| (iii) | the Facility Agent notifies the Borrowers and the Lenders that the Facility Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
| 34.13 | Confidentiality |
| 34.14 | Relationship with the Lenders |
| (i) | entitled to or liable for any payment due under any Finance Document on that day; and |
| (ii) | entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day, |
unless it has received not less than five Business Days' prior notice from that Lender or Hedge Counterparty to the contrary in accordance with the terms of this Agreement.
| (b) | Each Lender shall supply the Facility Agent with any information required by the Facility Agent in order to calculate the Mandatory Cost. |
| 34.15 | Credit appraisal by the Lenders |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Lender and Hedge Counterparty confirms to the Facility Agent and each Mandated Lead Arranger that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under, or in connection with, any Finance Document including but not limited to:
| (a) | the financial condition, status and nature of each member of the Group; |
| 34.16 | Facility Agent's management time |
Any amount payable to the Facility Agent under Clause 16.4 (Indemnity to the Servicing Parties), Clause 18 (Costs and Expenses) and Clause 34.11 (Lenders' indemnity to the Facility Agent) shall include the cost of utilising the Facility Agent's management time or other resources to the extent that this relates to extraordinary matters which arise following the occurrence of any Default or Event of Default, such as requests for waivers or amendments and/or a potential Default or Event of Default, and the compensation payable to the Facility Agent for such use of its management time shall, upon the Facility Agent's request, be agreed between the Borrowers, the Lenders and the Facility Agent and will be payable by the Borrowers in addition to any fee paid or payable to the Facility Agent under Clause 13 (Fees).
| 34.17 | Deduction from amounts payable by the Facility Agent |
If any Party owes an amount to the Facility Agent under the Finance Documents, the Facility Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Facility Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
| 34.18 | Full freedom to enter into transactions |
Notwithstanding any rule of law or equity to the contrary, the Facility Agent shall be absolutely entitled:
| (b) | to deal in and enter into and arrange transactions relating to: |
| (i) | any securities issued or to be issued by any Transaction Obligor or any other person; or |
| (ii) | any options or other derivatives in connection with such securities; and |
| (c) | to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, the Facility Agent shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
| 34.19 | Amounts paid in error |
| (b) | Neither: |
| (i) | the obligations of any Party to the Facility Agent; nor |
| (ii) | the remedies of the Facility Agent, |
(whether arising under this Clause 34.19 (Amounts paid in error) or otherwise) which relate to an Erroneous Payment will be affected by any act, omission, matter or thing which, but for this paragraph (b), would reduce, release or prejudice any such obligation or remedy (whether or not known by the Facility Agent or any other Party).
| (d) | In this Agreement, "Erroneous Payment" means a payment of an amount by the Facility Agent to another Party which the Facility Agent determines (in its sole discretion) was made in error. |
| 35 | The Security Agent |
| 35.1 | Trust |
| 35.2 | Parallel Debt (Covenant to pay the Security Agent) |
| (b) | The Parallel Debt of an Obligor: |
| (i) | shall become due and payable at the same time as its Corresponding Debt; |
| (ii) | is independent and separate from, and without prejudice to, its Corresponding Debt. |
| (c) | For purposes of this Clause 35.2 (Parallel Debt (Covenant to pay the Security Agent)), the Security Agent: |
| (i) | is the independent and separate creditor of each Parallel Debt; |
| (ii) | acts in its own name and not as agent, representative or trustee of the Finance Parties and its claims in respect of each Parallel Debt shall not be held on trust; and |
| (d) | The Parallel Debt of an Obligor shall be: |
| (i) | decreased to the extent that its Corresponding Debt has been irrevocably and unconditionally paid or discharged; and |
| (ii) | increased to the extent that its Corresponding Debt has increased, |
and the Corresponding Debt of an Obligor shall be:
| (A) | decreased to the extent that its Parallel Debt has been irrevocably and unconditionally paid or discharged; and |
| (B) | increased to the extent that its Parallel Debt has increased, |
in each case provided that the Parallel Debt of an Obligor shall never exceed its Corresponding Debt.
| (f) | This Clause 35.2 (Parallel Debt (Covenant to pay the Security Agent)) shall apply, with any necessary modifications, to each Finance Document. |
| 35.3 | No independent power |
The Secured Parties shall not have any independent power to enforce, or have recourse to, any of the Transaction Security or to exercise any rights or powers arising under the Finance Documents creating the Transaction Security except through the Security Agent.
| 35.4 | Application of receipts |
| (b) | Paragraph (a) above is without prejudice to the rights of the Security Agent, each Receiver and each Delegate: |
| (i) | under Clause 16.6 (Indemnity to the Security Agent) to be indemnified out of the Charged Property; and |
| (ii) | under any Finance Document to credit any moneys received or recovered by it to any suspense account. |
| (c) | Any transfer by the Security Agent to the Facility Agent in accordance with paragraph (a) above shall be a good discharge, to the extent of that payment, by the Security Agent. |
| 35.5 | Deductions from receipts |
| (a) | Before transferring any moneys to the Facility Agent under Clause 35.4 (Application of receipts), the Security Agent may, in its discretion: |
| 35.6 | Prospective liabilities |
Following acceleration of any of the Transaction Security, the Security Agent may, in its discretion, or at the request of the Facility Agent, hold any Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) for later payment to the Facility Agent for application in accordance with Clause 38.5 (Application of receipts; partial payments) in respect of:
| (a) | any sum to the Security Agent, any Receiver or any Delegate; and |
| (b) | any part of the Secured Liabilities, |
that the Security Agent or, in the case of paragraph (b) only, the Facility Agent, reasonably considers, in each case, might become due or owing at any time in the future.
| 35.7 | Investment of proceeds |
Prior to the payment of the proceeds of the Recoveries to the Facility Agent for application in accordance with Clause 38.5 (Application of receipts; partial payments) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing (if applicable) suspense or impersonal account(s) with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest (if any) being credited to the relevant account) pending the payment from time to time of those moneys in the Security Agent's discretion in accordance with the provisions of this Clause 35.7 (Investment of proceeds).
| 35.8 | Instructions to Security Agent and exercise of discretion |
| (ii) | unless it has received actual notice of revocation, that those instructions or directions have not been revoked. |
| (d) | Paragraph (a) above shall not apply: |
| (i) | where a contrary indication appears in this Agreement; |
| (ii) | where this Agreement requires the Security Agent to act in a specified manner or to take a specified action; |
| 35.9 | Security Agent's Actions |
Without prejudice to the provisions of Clause 35.4 (Application of receipts), the Security Agent may (but shall not be obliged to), in the absence of any instructions to the contrary, take such action in the exercise of any of its powers and duties under the Finance Documents as it considers in its discretion to be appropriate.
| 35.10 | Security Agent's discretions |
| (a) | The Security Agent may: |
| (ii) | any notice or request made by any Borrower (other than the Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors; |
| (v) | act in relation to the Finance Documents through its personnel and agents; |
| (vi) | disclose to any other Party any information it reasonably believes it has received as security agent under this Agreement; |
| 35.11 | Security Agent's obligations |
The Security Agent shall promptly:
| (a) | copy to the Facility Agent the contents of any notice or document received by it from any Obligor under any Finance Document; |
| 35.12 | Excluded obligations |
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent shall not:
| (a) | be bound to enquire as to (i) whether or not any Default has occurred or (ii) the performance, default or any breach by a Transaction Obligor of its obligations under any of the Finance Documents; |
| (b) | be bound to account to any other Party for any sum or the profit element of any sum received by it for its own account; |
| (d) | have or be deemed to have any relationship of trust or agency with, any Obligor. |
| 35.13 | Responsibility for documentation |
None of the Security Agent, any Receiver nor any Delegate shall accept responsibility or be liable for:
| (e) | any shortfall which arises on the enforcement or realisation of the Security Property. |
| 35.14 | Exclusion of liability |
| 35.15 | No proceedings |
No Party (other than the Security Agent, that Receiver or that Delegate) may take any proceedings against any officer, employee or agent of the Security Agent, a Receiver or a Delegate in respect of any claim it might have against the Security Agent, a Receiver or a Delegate or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document or any Security Property and any officer, employee or agent of the Security Agent, a Receiver or a Delegate may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
| 35.16 | Lenders' indemnity to the Security Agent |
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Security Agent and every Receiver and every Delegate, within three Business Days of demand, against any cost, loss or liability incurred by any of them (otherwise than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) in acting as Security Agent, Receiver or Delegate under the Finance Documents (unless the relevant Security Agent, Receiver or Delegate has been reimbursed by a Transaction Obligor pursuant to a Finance Document).
| 35.17 | Security Agent's management time |
| (b) | Without prejudice to paragraph (a) above, in the event of: |
| (i) | a Default; |
| (iii) | the Security Agent and the Borrowers agreeing that it is otherwise appropriate in the circumstances, |
the Borrowers shall pay to the Security Agent any additional remuneration (together with any applicable VAT) that may be agreed between them or determined pursuant to paragraph (c) below.
| 35.18 | Own responsibility |
Without affecting the responsibility of any Transaction Obligor for information supplied by it or on its behalf in connection with any Finance Document, each Secured Party confirms to the Security Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Finance Document including but not limited to:
| (a) | the financial condition, status and nature of each member of the Group; |
and each Secured Party warrants to the Security Agent that it has not relied on and will not at any time rely on the Security Agent in respect of any of these matters.
| 35.19 | No responsibility to perfect Transaction Security |
The Security Agent shall not be liable for any failure to:
| (a) | require the deposit with it of any deed or document certifying, representing or constituting the title of any Transaction Obligor to any of the Charged Property; |
| (e) | require any further assurances in relation to any of the Finance Documents creating the Transaction Security. |
| 35.20 | Insurance by Security Agent |
| 35.21 | Custodians and nominees |
The Security Agent may appoint and pay any person to act as a custodian or nominee on any terms in relation to any assets of the trust as the Security Agent may determine, including for the purpose of depositing with a custodian this Agreement or any document relating to the trust created under this Agreement and the Security Agent shall not be responsible for any loss, liability, expense, demand, cost, claim or proceedings incurred by reason of the misconduct, omission or default on the part of any person appointed by it under this Agreement or be bound to supervise the proceedings or acts of any person.
| 35.22 | Acceptance of title |
The Security Agent shall be entitled to accept without enquiry, and shall not be obliged to investigate, any right and title that any of the Transaction Obligors may have to any of the Charged Property and shall not be liable for or bound to require any Transaction Obligor to remedy any defect in its right or title.
| 35.23 | Refrain from illegality |
Notwithstanding anything to the contrary expressed or implied in the Finance Documents, the Security Agent may refrain from doing anything which in its opinion will or may be contrary to any relevant law, directive or regulation of any jurisdiction and the Security Agent may do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
| 35.24 | Business with the Group |
The Security Agent may accept deposits from, lend money to, and generally engage in any kind of banking or other business with, any member of the Group.
| 35.25 | Winding up of trust |
If the Security Agent, with the approval of the Facility Agent determines that (a) all of the Secured Liabilities and all other obligations secured by the Finance Documents creating the Transaction Security have been fully and finally discharged and (b) none of the Secured Parties is under any commitment, obligation or liability (actual or contingent) to make advances or provide other financial accommodation to any Obligor pursuant to the Finance Documents:
| (b) | any Retiring Security Agent shall release, without recourse or warranty, all of its rights under each of the Finance Documents creating the Transaction Security. |
| 35.26 | Powers supplemental |
The rights, powers and discretions conferred upon the Security Agent by this Agreement shall be supplemental to the Trustee Act 1925 and the Trustee Act 2000 and in addition to any which may be vested in the Security Agent by general law or otherwise.
| 35.27 | Trustee division separate |
| 35.28 | Disapplication |
In addition to its rights under or by virtue of this Agreement and the other Finance Documents, the Security Agent shall have all the rights conferred on a trustee by the Trustee Act 1925, the Trustee Delegation Act 1999, the Trustee Act 2000 and by general law or otherwise, provided that:
| (a) | section 1 of the Trustee Act 2000 shall not apply to the duties of the Security Agent in relation to the trusts constituted by this Agreement and the other Finance Documents; and |
| 35.29 | Full freedom to enter into transactions |
Notwithstanding any rule of law or equity to the contrary, the Security Agent shall be absolutely entitled:
| (b) | to deal in and enter into and arrange transactions relating to: |
| (i) | any securities issued or to be issued by any Transaction Obligor or any other person; or |
| (ii) | any options or other derivatives in connection with such securities; and |
| (c) | to provide advice or other services to any Borrower or any person who is a party to, or referred to in, a Finance Document, |
and, in particular, each Servicing Party shall be absolutely entitled, in proposing, evaluating, negotiating, entering into and arranging all such transactions and in connection with all other matters covered by paragraphs (a), (b) and (c) above, to use (subject only to insider dealing legislation) any information or opportunity, howsoever acquired by it, to pursue its own interests exclusively, to refrain from disclosing such dealings, transactions or other matters or any information acquired in connection with them and to retain for its sole benefit all profits and benefits derived from the dealings transactions or other matters.
| 35.30 | Resignation of the Security Agent |
| (a) | The Security Agent may resign and appoint one of its affiliates as successor by giving notice to the Borrowers and each Finance Party. |
| (b) | Alternatively the Security Agent may resign by giving notice to the other Parties in which case the Majority ▇▇▇▇▇▇▇ may appoint a successor Security Agent. |
| (f) | Upon the appointment of a successor, the Retiring Security Agent shall be discharged, by way of a document executed as a deed, from any further obligation in respect of the Finance |
| Documents (other than its obligations under paragraph (b) of Clause 35.25 (Winding up of trust) and under paragraph (d) above) but shall, in respect of any act or omission by it whilst it was the Security Agent, remain entitled to the benefit of Clause 35 (The Security Agent), Clause 16.6 (Indemnity to the Security Agent), Clause 35.16 (Lenders' indemnity to the Security Agent) and any other provisions of a Finance Document which are expressed to limit or exclude its liability in acting as Security Agent. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if that successor had been an original Party. |
| (h) | The consent of any Borrower (or any other Obligor) is not required for an assignment or transfer of rights and/or obligations by the Security Agent. |
| 35.31 | Delegation |
| 35.32 | Additional Security Agents |
| (a) | The Security Agent may at any time appoint (and subsequently remove) any person to act as a separate trustee or as a co-trustee jointly with it: |
| (i) | if it considers that appointment to be in the interests of the Secured Parties; or |
| (ii) | for the purposes of conforming to any legal requirements, restrictions or conditions which the Security Agent deems to be relevant; or |
| (iii) | for obtaining or enforcing any judgment in any jurisdiction, |
and the Security Agent shall give prior notice to the Borrowers and the Facility Agent of that appointment.
| 36 | Conduct of Business by the Finance Parties |
No provision of this Agreement will:
| (a) | interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit; |
| (b) | oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or |
| (c) | oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax. |
| 37 | Sharing Among the Finance Parties |
| 37.1 | Payments to Finance Parties |
If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 38 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due to it under the Finance Documents then:
| (a) | the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Facility Agent; |
| 37.2 | Redistribution of payments |
The Facility Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it among the Finance Parties (other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 38.5 (Application of receipts; partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
| 37.3 | Recovering Finance Party's rights |
On a distribution by the Facility Agent under Clause 37.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.
| 37.4 | Reversal of redistribution |
If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:
| (b) | as between the relevant Obligor and each relevant Sharing Finance Party, an amount equal to the relevant Redistributed Amount will be treated as not having been paid by that Obligor. |
| 37.5 | Exceptions |
| (i) | it notified that other Finance Party of the legal or arbitration proceedings; and |
| 38 | Payment Mechanics |
| 38.1 | Payments to the Facility Agent |
| (b) | Payment shall be made to such account in the principal financial centre of the country of that currency and with such bank as the Facility Agent, in each case, specifies. |
| 38.2 | Distributions by the Facility Agent |
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 38.3 (Distributions to an Obligor) and Clause 38.4 (Clawback and pre-funding) be made available by the Facility Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Facility Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre of the country of that currency, as specified by that Party or, in the case of an Advance, to such account of such person as may be specified by the Borrowers in a Utilisation Request.
| 38.3 | Distributions to an Obligor |
The Facility Agent may (with the consent of the Obligor or in accordance with Clause 39 (Set-Off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
| 38.4 | Clawback and pre-funding |
| (c) | If the Facility Agent is willing to make available amounts for the account of the Borrowers before receiving funds from the Lenders then if and to the extent that the Facility Agent does |
| so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to the Borrowers: |
| (i) | the Borrowers shall on demand refund it to the Facility Agent; and |
| 38.5 | Application of receipts; partial payments |
| (i) | first, in or towards payment of any amounts then due and payable under any of the Finance Documents; |
| (iii) | thirdly, any surplus shall be paid to the Borrowers or to any other person who appears to be entitled to it. |
| (ii) | secondly, in or towards payment pro rata of: |
| (A) | any accrued interest and fees due but unpaid to the Lenders under this Agreement; and |
| (B) | any periodical payments (not being payments as a result of termination or closing out) due but unpaid to the Hedge Counterparties under the Hedging Agreements; |
| (iii) | thirdly, in or towards payment pro rata of: |
| (A) | any principal due but unpaid to the Lenders under this Agreement; and |
| (B) | any payments as a result of termination or closing out due but unpaid to the Hedge Counterparties under the Hedging Agreements; and |
| (iv) | fourthly, in or towards payment pro rata of any other sum due to any Finance Party but unpaid under the Finance Documents. |
| (d) | Paragraphs (a), (b) and (c) above will override any appropriation made by an Obligor. |
| 38.6 | No set-off by Obligors |
| (a) | All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim. |
| (b) | Paragraph (a) above shall not affect the operation of any payment or close-out netting in respect of any amounts owing under any Hedging Agreement. |
| 38.7 | Business Days |
| 38.8 | Currency of account |
| (a) | Subject to paragraphs (b) and (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document. |
| (b) | Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred. |
| (c) | Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency. |
| 38.9 | Change of currency |
| (a) | Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then: |
| (ii) | any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or |
| currency unit into the other, rounded up or down by the Facility Agent (acting reasonably). |
| 38.10 | Currency Conversion |
| (b) | The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion. |
| 38.11 | Disruption to Payment Systems etc. |
If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by a Borrower that a Disruption Event has occurred:
| (f) | the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above. |
| 39 | Set-Off |
A Finance Party may set off any obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
| 40 | Bail-In |
| 40.1 | Contractual recognition of bail-in |
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
| (a) | any Bail-In Action in relation to any such liability, including (without limitation): |
| (i) | a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; |
| (ii) | a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and |
| (iii) | a cancellation of any such liability; and |
| (b) | a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability. |
| 41 | Notices |
| 41.1 | Communications in writing |
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by letter.
| 41.2 | Addresses |
The address (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 Borrowers, that specified in Schedule 2(The Parties); |
| (c) | in the case of the Facility Agent, that specified in Schedule 2 (The Parties); and |
| (d) | in the case of the Security Agent, that specified in Schedule 2 (The Parties), |
or any substitute address, department or officer as the Party may notify to the Facility Agent (or the Facility Agent may notify to the other Parties, if a change is made by the Facility Agent) by not less than five Business Days' notice.
| 41.3 | Delivery |
| (c) | All notices from or to an Obligor shall be sent through the Facility Agent unless otherwise specified in any Finance Document. |
| (d) | Any communication or document made or delivered to the Borrowers in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors. |
| 41.4 | Notification of address |
Promptly upon receipt of notification of an address or change of address pursuant to Clause 41.2 (Addresses) or changing its own address, the Facility Agent shall notify the other Parties.
| 41.5 | Electronic communication |
| (i) | notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and |
| (ii) | notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice. |
| (c) | Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day. |
| 41.6 | English language |
| (a) | Any notice given under or in connection with any Finance Document must be in English. |
| (b) | All other documents provided under or in connection with any Finance Document must be: |
| (i) | in English; or |
| 41.7 | Hedging Agreement |
Notwithstanding anything in Clause 1.1 (Definitions), references to the Finance Documents or a Finance Document in this clause do not include any Hedging Agreement entered into by the Borrowers with the Hedge Counterparty in connection with the Facilities.
| 42 | Calculations and Certificates |
| 42.1 | Accounts |
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by a Finance Party are prima facie evidence of the matters to which they relate.
| 42.2 | Certificates and determinations |
Any certification or determination by a Finance Party of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
| 42.3 | Day count convention and interest calculation |
| (a) | Any interest, commission or fee accruing under a Finance Document will accrue from day to day and the amount of any such interest, commission or fee is calculated: |
| (i) | on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice; and |
| (ii) | subject to paragraph (c) below, without rounding. |
| (b) | The Facility Agent shall provide the Borrowers with its calculations in relation to any amount referred to in paragraph (a) above, if the Borrowers request this in writing to the Facility Agent. |
| (c) | The aggregate amount of any accrued interest, commission or fee which is, or becomes, payable by an Obligor under a Finance Document shall be rounded to two decimal places. |
| 42.4 | Partial Invalidity |
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
| 43 | Remedies and Waivers |
No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any right or remedy under the Finance Documents shall operate as a waiver of any such right or remedy or constitute an election to affirm any of the Finance Documents. No election to affirm any of the Finance Documents on the part of a Secured Party shall be effective unless it is in writing. No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
| 44 | Settlement or Discharge Conditional |
Any settlement or discharge under any Finance Document between any Finance Party and any Obligor shall be conditional upon no security or payment to any Finance Party by any Obligor or any other person being set aside, adjusted or ordered to be repaid, whether under any insolvency law or otherwise.
| 45 | Irrevocable Payment |
If the Facility Agent considers that an amount paid or discharged by, or on behalf of, an Obligor or by any other person in purported payment or discharge of an obligation of that Obligor to a Finance Party under the Finance Documents is capable of being avoided or otherwise set aside on the liquidation or administration of that Obligor or otherwise, then that amount shall not be considered to have been unconditionally and irrevocably paid or discharged for the purposes of the Finance Documents.
| 46 | Amendments and Waivers |
| 46.1 | Required consents |
| (b) | The Facility Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 46 (Amendments and Waivers). |
| 46.2 | All Lender matters |
| (a) | Subject to Clause 46.4 (Changes to reference rate), an amendment of or waiver or consent in relation to any term of any Finance Document that has the effect of changing or which relates to: |
| (i) | the definitions of "Majority Lenders", "Restricted Party", "Sanctions" or "Sanctions List" in Clause 1.1 (Definitions); |
| (ii) | the definition of "Majority Lenders" in Clause 1.1 (Definitions); |
| (iv) | a reduction in the Margin or the amount of any payment of principal, interest, fees or commission payable; |
| (v) | a change in currency of payment of any amount under the Finance Documents; |
| (vii) | a change to any Obligor; |
| (viii) | any provision which expressly requires the consent of all the Lenders; |
| (ix) | this Clause 46 (Amendments and Waivers); |
| (xii) | (other than as expressly permitted by the provisions of any Finance Document), the nature or scope of: |
| (B) | the Charged Property; or |
| (C) | the manner in which the proceeds of enforcement of the Transaction Security are distributed, |
(except in the case of paragraphs (B) and (C) above, insofar as it relates to a sale or disposal of an asset which is the subject of the Transaction Security where such sale or disposal is expressly permitted under this Agreement or any other Finance Document);
shall not be made, or given, without the prior consent of all the Lenders.
| 46.3 | Other exceptions |
| (b) | An amendment or waiver which relates to the rights or obligations of a Hedge Counterparty (in its capacity as such) may not be effected without the consent of that Hedge Counterparty. |
| (c) | The Borrowers and the Facility Agent, either Mandated Lead Arranger or the Security Agent, as applicable, may amend or waive a term of a Fee Letter to which they are party. |
| 46.4 | Changes to reference rates |
| (a) | Subject to Clause 46.3 (Other exceptions), any amendment or waiver which relates to: |
| (i) | providing for the use of a Replacement Reference Rate; and |
| (ii) |
| (A) | aligning any provision of any Finance Document to the use of that Replacement Reference Rate; |
| (C) | implementing market conventions applicable to that Replacement Reference Rate; |
| (D) | providing for appropriate fallback (and market disruption) provisions for that Replacement Reference Rate; or |
may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrowers.
| (i) | relates to the use of the RFR on a compounded basis in the international or any relevant domestic syndicated loan markets; and |
| (ii) | is issued on or after the date of this Agreement, |
may be made with the consent of the Facility Agent (acting on the instructions of the Majority Lenders) and the Borrower.
| (ii) | its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
| (d) | In this Clause 46.4 (Changes to reference rates): |
| (a) | the RFR; or |
| (b) | Term SOFR for any Quoted Tenor. |
| (a) | formally designated, nominated or recommended as the replacement for a Published Rate by: |
| (i) | the administrator of that Published Rate (provided that the market or economic reality that such reference rate measures is the same as that measured by that Published Rate); or |
| (ii) | any Relevant Nominating Body, |
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both paragraphs, the "Replacement Reference Rate" will be the replacement under sub-paragraph (ii) above;
| (c) | in the opinion of the Majority ▇▇▇▇▇▇▇ and the Borrower, an appropriate successor or alternative to a Published Rate. |
| 46.5 | Obligor Intent |
| 47 | Confidentiality |
| 47.1 | Confidential Information |
Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 47.2 (Disclosure of Confidential Information) and Clause 47.3 (Disclosure to numbering service providers) and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
| 47.2 | Disclosure of Confidential Information |
Any Finance Party may disclose:
| Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information; |
| (b) | to any person: |
| (iv) | who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above; |
| (vi) | 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; |
| (vii) | to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 32.8 (Security over Lenders' rights); |
| (viii) | who is a Party, a member of the Group or any related entity of an Obligor; |
| (ix) | 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; or |
| (x) | with the consent of the Parent Guarantor; |
in each case, such Confidential Information as that Finance Party shall consider appropriate if:
| professional obligations to maintain the confidentiality of the Confidential Information; |
| (e) | to the U.S. Securities and Exchange Commission (the "SEC") such Confidential Information as may be required to be disclosed to the SEC. |
| 47.3 | DAC6 |
Nothing in any Finance Document shall prevent disclosure of any Confidential Information or other matter to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Finance Documents or any transaction carried out in connection with any transaction contemplated by the Finance Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
| 47.4 | Disclosure to numbering service providers |
| (i) | names of Obligors; |
| (ii) | country of domicile of Obligors; |
| (iii) | place of incorporation of Obligors; |
| (iv) | date of this Agreement; |
| (v) | the names of the Facility Agent and each Mandated Lead Arranger; |
| (vi) | date of each amendment and restatement of this Agreement; |
| (vii) | amount of Total Commitments; |
| (viii) | currency of the Facilities; |
| (ix) | type of Facilities; |
| (x) | ranking of Facilities; |
| (xi) | Termination Date for Facilities; |
| (xii) | changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and |
| (xiii) | such other information agreed between such Finance Party and the Borrowers, |
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.
| (c) | Each Obligor represents that none of the information set out in paragraphs (a)(i) to (a)(xiii) above is, nor will at any time be, unpublished price-sensitive information. |
| (d) | The Facility Agent shall notify each Obligor and the other Finance Parties of: |
| (i) | the name of any numbering service provider appointed by the Facility Agent in respect of this Agreement, the Facilities and/or one or more Obligors; and |
| (ii) | the number or, as the case may be, numbers assigned to this Agreement, the Facilities and/or one or more Obligors by such numbering service provider. |
| 47.5 | Entire agreement |
This Clause 47 (Confidentiality) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
| 47.6 | Inside information |
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
| 47.7 | Notification of disclosure |
Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrowers:
| (b) | upon becoming aware that Confidential Information has been disclosed in breach of this Clause 47 (Confidentiality). |
| 47.8 | Continuing obligations |
The obligations in this 47 (Confidentiality) are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
| (b) | the date on which such Finance Party otherwise ceases to be a Finance Party. |
| 48 | Confidentiality of Funding Rates |
| 48.1 | Confidentiality and disclosure |
| (a) | The Facility Agent and each Obligor agree to keep each Funding Rate confidential and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c) below. |
| (b) | The Facility Agent may disclose: |
| (i) | any Funding Rate to the Borrowers pursuant to Clause 9.6 (Notifications); and |
| (c) | The Facility Agent and each Obligor may disclose any Funding Rate to: |
| (iv) | any person with the consent of the relevant Lender. |
| 48.2 | Related obligations |
| (b) | The Facility Agent and each Obligor agree (to the extent permitted by law and regulation) to inform the relevant Lender: |
| (ii) | upon becoming aware that any information has been disclosed in breach of this Clause 48 (Confidentiality of Funding Rates). |
| 48.3 | No Event of Default |
No Event of Default will occur under Clause 31.4 (Other obligations) by reason only of an Obligor's failure to comply with this Clause 48 (Confidentiality of Funding Rates).
| 49 | Counterparts |
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
| 50 | Governing Law |
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
| 51 | Enforcement |
| 51.1 | Jurisdiction |
| (b) | The Obligors accept that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Obligor will argue to the contrary. |
| 51.2 | Service of process |
| (a) | Without prejudice to any other mode of service allowed under any relevant law, each Obligor (other than an Obligor incorporated in England and Wales): |
| (ii) | agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned. |
This Agreement has been entered into on and amended and restated on the dates stated at the beginning of this Agreement.
Execution version
Name of Borrower | Place of Formation | Registration number (or equivalent, if any) | Address for Communication |
Fitzroy Shipco LLC ▇▇▇▇▇▇ Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands The ▇▇▇▇▇▇▇▇ Islands | 961629 961628 | c/o Ardmore Shipping Services (Ireland) Limited Attn: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇▇ ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
Cromarty Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands | 961750 | |
Dogger Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands | 961903 | |
▇▇▇▇▇ Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands | 962431 | |
Viking Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands | 961902 | |
Tramore Shipco LLC | The ▇▇▇▇▇▇▇▇ Islands | 963547 | |
| | | |
Name of Parent Guarantor | Place of Formation | Registration number (or equivalent, if any) | Address for Communication |
Ardmore Shipping Corporation | The ▇▇▇▇▇▇▇▇ Islands | 61477 | c/o Ardmore Shipping Services (Ireland) Limited Attn: |
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THE HEDGE COUNTERPARTIES
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Name of Facility Agent | Address for Communication |
ABN AMRO Bank N.V. | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: Agency Syndicated Loans, Team 1 |
Name of Security Agent | Address for Communication |
ABN AMRO Bank N.V. | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Attn: Agency Syndicated Loans, Team 1 |
187EUROPE/75083879v5
| 1 | Obligors |
| 1.1 | A copy of the constitutional documents of each Obligor. |
| 1.2 | A copy of a resolution of the member or the board of directors, as the case may be, of each Obligor: |
| (a) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; |
| (b) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
| 1.3 | An original of the power of attorney of any Obligor authorising a specified person or persons to execute the Finance Documents to which it is a party. |
| 1.4 | A specimen of the signature of each person authorised by the resolution referred to in paragraph 1.2 above. |
| 2 | Pool Agreement and other Documents |
| 2.1 | Copies of any Pool Agreement and of all documents signed in connection with it. |
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| 2.3 | Copies of each Hedging Agreement executed by a Hedge Counterparty and the relevant Borrower. |
| 3 | Security |
| 3.2 | A duly executed original of the Hedging Agreement Assignment in respect of each of the Borrowers (and of each document to be delivered under each of them). |
| 4 | Legal opinions |
| 5 | Other documents and evidence |
| 5.1 | Evidence that any process agent referred to in Clause 51.2 (Service of process), if not an Obligor, has accepted its appointment. |
| 5.3 | The original of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts. |
| 5.4 | Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees) and Clause 18 (Costs and Expenses) have been paid or will be paid by the first Utilisation Date. |
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For the purposes of this Schedule 3 Part B:
| 1 | Relevant Borrower |
A certificate of an authorised signatory of the Relevant Borrower certifying that each copy document which it is required to provide under this Part B of Schedule 3 (Conditions Precedent) is correct, complete and in full force and effect as at the Utilisation Date of the Relevant Advance.
| 2 | Release of Existing Security |
If relevant, an original of each Deed of Release and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Facility Agent of its due execution by the parties to it.
| 3 | Ship and other security |
| 3.2 | Documentary evidence that the Relevant Initial Ship: |
| (b) | is definitively and permanently registered in the name of the Relevant Borrower under the Approved Flag; |
| (c) | is in the absolute and unencumbered ownership of the Relevant Borrower save as contemplated by the Finance Documents; |
| (d) | maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and |
| (e) | is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with. |
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| (a) | a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and |
| 3.4 | An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require. |
| 4 | Legal opinions |
Legal opinions of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in England and Wales, the jurisdiction of the Approved Flag of the Relevant Initial Ship and the ▇▇▇▇▇▇▇▇ Islands and such other relevant jurisdictions as the Facility Agent may require and in substance and form acceptable to the Lenders.
| 5 | Other documents and evidence |
| 5.1 | Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees) and Clause 18 (Costs and Expenses) have been paid or will be paid by the first Utilisation Date. |
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| 1 | Relevant Borrowers |
A certificate of an authorised signatory of the Borrowers certifying that each copy document which it is required to provide under this Part C of Schedule 3 (Conditions Precedent) is correct, complete and in full force and effect as at the Utilisation Date of the Relevant Advance.
| 2 | Additional Borrowers |
| (a) | A copy of the constitutional documents of each Additional Borrower. |
| (b) | A copy of a resolution of the member or the board of directors, as the case may be, of each Additional Borrower: |
| (i) | approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party; |
| (ii) | authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and |
| (c) | An original of the power of attorney of any Additional Borrower authorising a specified person or persons to execute the Finance Documents to which it is a party. |
| 3 | Release of Existing Security |
An original of any deed of release of Security in relation to each Accordion Ship and of each document to be delivered under or pursuant to it, together with evidence satisfactory to the Facility Agent of its due execution by the parties to it.
| 4 | Hedging Agreements |
If relevant, copies of each Hedging Agreement executed by a Hedge Counterparty and the relevant Additional Borrower.
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| 5 | Accordion Ship and other security |
| (b) | A duly executed original of the Hedging Agreement Assignment in respect of each Additional Borrower (and of each document to be delivered under each of them). |
| (d) | Documentary evidence that each relevant Accordion Ship: |
| (ii) | is definitively and permanently registered in the name of the relevant Additional Borrower under the Approved Flag; |
| (iii) | is in the absolute and unencumbered ownership of the relevant Additional Borrower save as contemplated by the Finance Documents; |
| (iv) | maintains the Approved Classification with the Approved Classification Society free of all overdue recommendations and conditions of the Approved Classification Society; and |
| (v) | is insured in accordance with the provisions of this Agreement and all requirements in this Agreement in respect of insurances have been complied with. |
| (i) | a Manager's Undertaking for each of the Approved Technical Manager and the Approved Commercial Manager; and |
| (f) | An opinion from an independent insurance consultant acceptable to the Facility Agent on such matters relating to the Insurances as the Facility Agent may require. |
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| 6 | Legal opinions |
Legal opinions of the legal advisers to the Mandated Lead Arrangers, the Facility Agent and the Security Agent in England and Wales, the jurisdiction of the Approved Flag of each relevant Accordion Ship and the ▇▇▇▇▇▇▇▇ Islands and such other relevant jurisdictions as the Facility Agent may require and in substance and form acceptable to the Lenders.
| 7 | Other documents and evidence |
| (a) | A duly executed Accession Deed. |
| (b) | Evidence that the fees, costs and expenses then due from the Borrowers pursuant to Clause 13 (Fees) and Clause 18 (Costs and Expenses) have been paid or will be paid by the first Utilisation Date. |
| (c) | The original of any mandates or other documents required in connection with the opening or operation of the Earnings Accounts. |
194EUROPE/75083879v5
From:Fitzroy Shipco LLC
▇▇▇▇▇▇ Shipco LLC
Cromarty Shipco LLC
Dogger Shipco LLC
▇▇▇▇▇ Shipco LLC
Viking Shipco LLC
Tramore Shipco LLC
To:ABN AMRO Bank N.V. as Facility Agent
Dated: [⚫]
Dear Sirs
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 2 | We wish to borrow an Advance under [the Revolving Facility] [an Accordion Facility] on the following terms: |
Proposed Utilisation Date: [⚫] (or, if that is not a Business Day, the next Business Day)
Amount: [⚫] or, if less, the Available Facility
Interest Period: [⚫]
Calculation of interest: interest shall be calculated pursuant to [Clause 9.2 (Calculation of interest – Compounded Rate Loans)] [Clause 9.3 (Calculation of interest – Term SOFR Loans)].
| 5 | You are authorised and requested to deduct from the Advance prior to funds being remitted the fees in Clause 13.2 (Upfront fees) and Clause 13.3 (Agent fee). |
| 6 | The proceeds of this Advance should be credited to the following account: |
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Company: Ardmore Shipping LLC
Bank:ABN AMRO Bank
Address 1:▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
Address 2:1082 PP Amsterdam
Country:Netherlands
Account Name:Ardmore Shipping LLC
Account Number: 619867647
SWIFT Number:▇▇▇▇▇▇▇▇▇▇▇
IBAN Number:▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
Currency:USD
[This Advance is to be made in [whole][part] for the purpose of refinancing [identify maturing Advance under Revolving Facility / Accordion Facility].
| 7 | This Utilisation Request is irrevocable. |
Yours faithfully
authorised signatory for
FITZROY SHIPCO LLC
authorised signatory for
▇▇▇▇▇▇ SHIPCO LLC
authorised signatory for
CROMARTY SHIPCO LLC
authorised signatory for
DOGGER SHIPCO LLC
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authorised signatory for
▇▇▇▇▇ SHIPCO LLC
authorised signatory for
VIKING SHIPCO LLC
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To:ABN AMRO BANK N.V. as Facility Agent
From:[SUBSIDIARY] and
FITZROY SHIPCO LLC
▇▇▇▇▇▇ SHIPCO LLC
CROMARTY SHIPCO LLC
DOGGER SHIPCO LLC
▇▇▇▇▇ SHIPCO LLC
VIKING SHIPCO LLC
TRAMORE SHIPCO LLC
Dated: [●]
Dear Sirs
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 3 | The Borrowers confirm that no Default is continuing or would occur as a result of [Subsidiary] becoming an Additional Borrower. |
| 4 | [Subsidiary's] administrative details for the purposes of the Agreement are as follows: |
Address:
Email:
Attention:
| 5 | [Subsidiary] (for the purposes of this paragraph 5, the "Acceding Debtor") intends to incur Secured Liabilities under the following documents: |
| (a) | [Insert details (date, parties and description) of relevant documents] |
the "Relevant Documents".
| 6 | IT IS AGREED as follows: |
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| (a) | The Acceding Debtor and the Security Agent agree that the Security Agent shall hold: |
| (b) | any Security in respect of the Secured Liabilities created or expressed to be created pursuant to the Relevant Documents; |
| (c) | all proceeds of that Security; |
on trust for the Secured Parties on the terms and conditions contained in the Agreement.
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Accession Deed has been signed on behalf of the Security Agent (for the purposes of paragraph 5 above only), signed on behalf of each Borrower and executed as a deed by [Subsidiary] and is delivered on the date stated above.
199EUROPE/75083879v5
EXECUTION PAGES
[SUBSIDIARY]
EXECUTED as a DEED)
By: [SUBSIDIARY])
)
_________________________________)Director
)
)
_________________________________)Director/Secretary
BORROWERS
EXECUTED as a DEED)
By: FITZROY SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
EXECUTED as a DEED)
By: ▇▇▇▇▇▇ SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
EXECUTED as a DEED)
By: CROMARTY Shipco LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
EXECUTED as a DEED)
By: DOGGER SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
EXECUTED as a DEED)
By: ▇▇▇▇▇ SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
200EUROPE/75083879v5
EXECUTED as a DEED)
By: VIKING SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
EXECUTED as a DEED)
By: TRAMORE SHIPCO LLC)
)
By: _________________________________)[OFFICER TITLE][Attorney-in-fact]
SECURITY AGENT
EXECUTED as a DEED)
By: ABN AMRO BANK N.V.)
)
_________________________________)Director
)
)
_________________________________)Director/Secretary
201EUROPE/75083879v5
To:ABN AMRO BANK N.V. as Facility Agent
From:[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated: [⚫]
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 2 | We refer to Clause 32.5 (Procedure for transfer) of the Agreement: |
| (b) | The proposed Transfer Date is [⚫]. |
| (c) | The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 41.2 (Addresses) of the Agreement are set out in the Schedule. |
| 4 | This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate. |
| 5 | This Transfer Certificate and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| 6 | This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate. |
Note: The execution of this Transfer Certificate may not transfer a proportionate share of the Existing ▇▇▇▇▇▇'s interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing ▇▇▇▇▇▇'s Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
202EUROPE/75083879v5
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address and attention details for notices
and account details for payments.]
[Existing Lender][New Lender]
By:[⚫]By:[⚫]
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [⚫].
[Facility Agent]
By:[⚫]
203EUROPE/75083879v5
To: | ABN AMRO BANK N.V. as Facility Agent and Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC as Borrowers, for and on behalf of each Obligor |
From:[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
Dated: [⚫]
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 2 | We refer to Clause 32.6 (Procedure for assignment): |
| (c) | The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above. |
| 3 | The proposed Transfer Date is [⚫]. |
| 4 | On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender. |
| 5 | The Facility Office and address and attention details for notices of the New Lender for the purposes of Clause 41.2 (Addresses) are set out in the Schedule. |
| 6 | The New Lender expressly acknowledges the limitations on the Existing ▇▇▇▇▇▇'s obligations set out in paragraph 32.4(c) of Clause 32.4 (Limitation of responsibility of Existing Lenders). |
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| 8 | This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement. |
| 9 | This Assignment Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| 10 | This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement. |
Note: The execution of this Assignment Agreement may not transfer a proportionate share of the Existing ▇▇▇▇▇▇'s interest in the Transaction Security in all jurisdictions. It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in the Existing ▇▇▇▇▇▇'s Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
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THE SCHEDULE
Commitment rights and obligations to be transferred by assignment, release and accession
[insert relevant details]
[Facility office address and attention details for notices
and account details for payments]
[Existing Lender][New Lender]
By:[⚫]By:[⚫]
This Assignment Agreement is accepted by the Facility Agent and the Transfer Date is confirmed as [⚫].
Signature of this Assignment Agreement by the Facility Agent constitutes confirmation by the Facility Agent of receipt of notice of the assignment referred to herein, which notice the Facility Agent receives on behalf of each Finance Party.
[Facility Agent]
By:
206EUROPE/75083879v5
To: ABN AMRO BANK N.V. as Facility Agent
From: | Ardmore Shipping Corporation |
▇▇▇▇▇▇ Shipco LLC
Cromarty Shipco LLC
Dogger Shipco LLC
▇▇▇▇▇ Shipco LLC
Viking Shipco LLC
Tramore Shipco LLC
Dated: [⚫]
Dear Sirs
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 2 | We confirm that we have maintained the following financial covenants pursuant to clause 25.1 (Financial covenants) of the Agreement: |
| (a) | a minimum Solvency of at least 30 per cent.; |
| (b) | minimum Cash and Cash Equivalents of an amount the greater of: |
| (i) | if the Fleet Vessel size is below 40 vessels: |
| (A) | $750,000 per Fleet Vessel; and |
| (B) | 5 per cent. of the Total Consolidated Debt, |
| (ii) | upon the Fleet Vessel size becoming 40 vessels or more: |
| (A) | $30,000,000; |
| (B) | $500,000 per Fleet Vessel; and |
| (C) | 5 per cent. of the Total Consolidated Debt, |
in each case, with at least 60 per cent. of such minimum amount being held in cash and, for the purposes of this paragraph (b), Cash and Cash Equivalents shall include undrawn amounts
207EUROPE/75083879v5
under the Revolving Facility provided that the Termination Date in relation to the Revolving Facility is not within the next 12 Months.
| (c) | a positive Working Capital excluding: |
| (i) | Balloon Repayments; and |
| (ii) | any amounts outstanding under the ABN AMRO Receivables Facility Agreement provided that the facility provided thereunder has a remaining maturity of more than three months, |
in this instance current liabilities shall exclude the current portion of debt and leases[; and
| (d) | compliance with Clause 29.1 (Minimum required security cover)1. |
| (e) | an Adjusted Tangible Net Worth of not less than $200,000,000. |
Please refer to the attached documents which confirm the calculation for the above financial covenants and the accompanying Financial Statements.
| 3 | [We confirm that no Default is continuing.]* |
Officer
of
Ardmore Shipping Corporation
1 To be included in 30 June and 30 December compliance certificates only.
208EUROPE/75083879v5
To: ABN AMRO BANK N.V. as Facility Agent
From:ARDMORE SHIPPING CORPORATION as Parent Guarantor
[●], 20[●]
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
Sustainability Certificate dated [●] 20[●]
| 2 | We confirm that, as at the date hereof: |
| (a) | the calculation of the Fleet Sustainability Score for the prior calendar year ending 31 December 20[●], as evidenced by the Carbon Intensity and Climate Alignment Certificate, was as follows: |
[●]
| (c) | accordingly the Sustainability Pricing Adjustment is as follows: [●] |
| (d) | we have provided the Facility Agent (for onward distribution to the Lenders) with a copy of the most recent Sustainability Report. |
We confirm that no Default is continuing.
Officer
of
ARDMORE SHIPPING CORPORATION
209EUROPE/75083879v5
Fleet Sustainability Score, as set forth in the relevant Sustainability Certificate | ||||
Above or equal to 15.0% and below 20.0% | Above or equal to 10.0% and below 15.0% | Below 10.0% | ||
Adjustment to Applicable Margin | No adjustment | |||
Diversity | ||||
Bursary Percentage Target not met | Bursary Percentage Target met | | | |
Adjustment | | | ||
| (b) | In relation to each Sustainability Pricing Adjustment, the starting point for calculating any adjustment to the Margin shall be 2.50 per cent per annum ("Applicable Margin"). |
| (c) | Any Sustainability Pricing Adjustment for that year shall become effective on the first day of the next Interest Period following the KPI Reporting Date for that Advance. |
| (d) | No Sustainability Pricing Adjustment shall result in the Margin being increased or decreased from the Applicable Margin by more than 5 basis points per annum. |
| (f) | For the avoidance of doubt, failure to report shall not constitute an Event of Default. |
210EUROPE/75083879v5
Defined terms used herein:
"AER Trajectory Value" means, with respect to any Fleet Vessel, the relevant AER trajectory value as published on the website of the Poseidon Principles. The Poseidon Trajectory based off the fourth IMO GHG Study (published in 2020) will be the trajectory used for the duration of this facility. See the table below as a reference.
"Average Efficiency Ratio" or "AER" means, with respect to any Fleet Vessel, the average efficiency ratio of such Fleet Vessel as calculated per the Poseidon Principles as follows:
where Ci is the carbon emissions for voyage i computed using the fuel consumption and carbon factor of each type of fuel, DWT is the design deadweight of a Fleet Vessel, and ▇▇ is the distance travelled on voyage i. The AER with respect to any Fleet Vessel is computed for all voyages performed by the Fleet Vessel over a calendar year.
"Bursary Percentage" means, with respect to any calendar year, the percentage of bursaries provided to women cadets as a percentage of total bursaries provided and to be evidenced by back-up documentation.
"Bursary Percentage Target" means, with respect to any calendar year, a Bursary Percentage of at least 25 per cent.
"Carbon Intensity and Climate Alignment Certificate" means a certificate from a Recognised Organisation relating to a Fleet Vessel and a calendar year setting out:
| (b) | the climate alignment of that Fleet Vessel for such calendar year: |
in each case as calculated in accordance with the Poseidon Principles and, in relation to the first certificate delivered under this Agreement, calculated based on data for year-end 2022.
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"DWT" means, with respective to any Fleet Vessel, the difference in tons between displacement of the Fleet Vessel in water of relative density of 1025 kg/m3 at the summer load draught and the lightweight of the Fleet Vessel; the summer load draught should be taken as the maximum summer draught as certified in the stability booklet approved by the relevant maritime administration or an organization recognized by it.
"Fleet Sustainability Score" means, with respect to any calendar year and verified by a Recognised Organisation, the weighted average (rounded to two decimal places) of the Vessel Sustainability Score of all Fleet Vessels for such calendar year, determined based on Vessel Weighting.
"Fleet Vessel" has the meaning given to such term in Clause 25.2 (Financial covenant definitions).
"KPI" means Key Performance Indicator and is a common definition for the KPI 1 (Fleet Sustainability Score), KPI 2 (Bursary Percentage).
"KPI Performance Misrepresentation" means if any confirmation, representation or statement made under or in connection with any Sustainability Certificate is or proves to have been incorrect or misleading when made, the Borrower shall notify the Agent of such misrepresentation promptly upon becoming aware of its occurrence and provide to the Agent as soon as reasonably practicable (at its own expense) a revised Sustainability Certificate for the same Financial Year and any other information reasonably requested by the Agent in each case: (i) correcting any inaccuracies giving rise to the relevant misrepresentation and (ii) confirming whether or not the Target(s) are met. Upon the occurrence of such misrepresentation, the Borrower shall pay to the Agent (for the account of each Lender) the amount required to put the Lenders in the position each Lender would have been in had the misrepresentation had not occurred and the correct Margin been applicable in the relevant period.
"KPI Reporting Date" means the date the Agent receives, in satisfactory form to the Lenders, the Sustainability Certificate.
"KPI Reporting Longstop Date" means 210 calendar days from year-end.
"Owned Days" means, for a given Fleet Vessel, the number of days in a calendar year that such Fleet Vessel is owned, whether directly or indirectly, by the Borrowers.
"Recognised Organisation" means, in respect of a Fleet Vessel an independent organisation representing and verifying that Fleet ▇▇▇▇▇▇'s flag state as agreed between the Borrowers and the Lenders and, for the purposes of Clause 28.19 (Poseidon Principles), duly authorised to determine whether the Borrowers have complied with regulation 22A of ▇▇▇▇▇ ▇▇.
"Trajectory Adjustments" means changes to Target 1 (in reference to paragraph (a), (b), and/or (c) below) and/or Trajectory (in reference to paragraph 1.1(c)) either due to:
| (a) | changes to the calculation methodology for KPI 1; |
| (b) | significant changes in data due to better data accessibility; or |
| (c) | a fleet sale or purchase of 5 or more vessels in one transaction or a group of related transactions, |
such as, but not limited to, transactions in the form of sale, purchase, merger, acquisition, spin-off of vessels or of companies. Such transactions may require a recalculation or pro forma adjustment of the Trajectory (with adjustments to Target 1 when applicable).
Notwithstanding the above, the below 1.1(d) applies in addition 1.1(a) through 1.1(c).
| (d) |
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| (i) | If either: |
| (A) | the Borrowers; and/or |
| (B) | the Facility Agent (acting on the instructions of any of the Lenders) and/or the Sustainability Coordinator |
determine that a KPI and/or a Target is no longer available, cannot be calculated, or is no longer appropriate with respect to the Borrowers, such party may request, by written notice to the other parties, that each such party shall negotiate in good faith, following which the Borrower and the Sustainability Coordinator shall negotiate in good faith for a period of 30 days with a view to agreeing:
| (1) | relevant new KPI(s) to replace one or more of the existing KPI(s); |
| (2) | relevant new Target to replace one or more of the existing Target(s); and/or |
| (3) | appropriate consequential amendments to one or more of the existing KPI(s) and/or Target(s) and/or related provisions (as applicable), |
and, for the avoidance of doubt, any such new KPI(s), new Target(s) and/or appropriate consequential amendments shall be agreed by the Company and the Facility Agent (acting on the instructions of the Lenders).
| (iii) | if: |
| (A) | the Company has not engaged in such negotiations (where applicable); or |
| (B) | no agreement is reached between the relevant parties; |
following a 30-day negotiation period, the Facility Agent (acting on the instructions of the Lenders) may, by notice to the Company, declassify the Facilities Agreement as a sustainability-linked financing, upon which the Sustainability Pricing Adjustment shall cease to apply for the remaining life of the Facility.
"Vessel Sustainability Score" means, for any Vessel in the Fleet, and a particular calendar year, the percentage difference between the AER Trajectory Value and the Vessel’s Average Efficiency Ratio and at the same point in time, calculated as set out in the Poseidon Principles. A ▇▇▇▇▇▇’s Vessel Sustainability Score shall be evidenced by a Carbon Intensity and Climate Alignment Certificate.
"Vessel Weighting" shall mean, for any Fleet Vessel for any calendar year, the product of (i) the Owned Days and (ii) the Fleet Vessel’s DWT.
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Shipbroker | Country |
Arrow Valuation Ltd | United Kingdom |
Fearnleys AS | Norway /Singapore |
▇▇▇▇▇▇▇▇▇ Platou | United Kingdom |
Braemar Shipbrokers Ltd | United Kingdom |
▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | France |
Maersk Broker | Denmark |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ | United Kingdom |
| |
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A = B / (16.5 years – age of the Ship relating to that Revolving Commitment or Accordion Facility Commitment (as applicable) / 4
A = each quarterly Reduction Instalment amount in relation to a Revolving Commitment or Accordion Facility Commitment (as applicable) *
B = relevant amount of the Revolving Commitments or Accordion Facility Commitment (as applicable)
*Balloon instalment to be added to the final Reduction Instalment
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Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request)) | Five Business Days before the intended Utilisation Date (Clause 5.1 (Delivery of a Utilisation Request)) |
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders' participation) | Two Business Days before the intended Utilisation Date. |
Term SOFR Reference Rate is fixed | Quotation Day |
| |
| |
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To:ABN AMRO BANK N.V. as Facility Agent
From: | FITZROY SHIPCO LLC, |
▇▇▇▇▇▇ SHIPCO LLC,
CROMARTY SHIPCO LLC,
DOGGER SHIPCO LLC,
▇▇▇▇▇ SHIPCO LLC,
VIKING SHIPCO LLC,
TRAMORE SHIPCO LLC,
as joint and several Borrowers and the entities listed in the Schedule as Accordion Facility Lenders (the "Accordion Facility Lenders")
Dated: [●]
Fitzroy Shipco LLC, ▇▇▇▇▇▇ Shipco LLC, Cromarty Shipco LLC, Dogger Shipco LLC, ▇▇▇▇▇ Shipco LLC, Viking Shipco LLC and Tramore Shipco LLC – Facilities Agreement for up to $150,388,077 dated 2 August 2022 (as amended and restated from time to time, including by the second amendment and restatement agreement dated [●] 2024) (the "Agreement")
| 2 | We refer to Clause 6 (Establishment of Accordion Facility) of the Agreement. |
| 3 | We request the establishment of an Accordion Facility with the following Accordion Facility Terms: |
Currency: $
Margin:
Fees:
| 4 | Borrowers |
The Accordion Facility shall be available only to the Borrowers.
| 5 | Purpose |
The Accordion Facility shall only be used for the purpose set out in Clause 3 (Purpose) of the Agreement.
| 6 | Availability |
The Accordion Facility shall only be available during the Availability Period relating to the Accordion Facility.
| 7 | The proposed Accordion Facility Date is [●]. |
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| 8 | The Borrowers confirm that the Accordion Facility Terms set out above comply with Clause 6.5 (Restrictions on Accordion Facility Terms and fees) of the Agreement; |
| (b) | each condition specified in sub-paragraph (i) of paragraph (a) of Clause 6.6 (Conditions to establishment) of the Agreement is satisfied on the date of this Accordion Facility Notice. |
| 10 | On the Accordion Facility Date each Accordion Facility Lender becomes party to the relevant Finance Documents as a Lender. |
| 11 | Each Accordion Facility Lender expressly acknowledges the limitations on the Lenders' obligations referred to in Clause 6.11 (Limitation of responsibility) of the Agreement. |
| 12 | This Accordion Facility Notice is irrevocable. |
| 14 | This Accordion Facility Notice and any non-contractual obligations arising out of or in connection with it are governed by English law. |
| 15 | This Accordion Facility Notice has been entered into on the date stated at the beginning of this Accordion Facility Notice. |
| 16 | The facility office and address and attention details for notices of the Accordion Facility Lenders for the purposes of Clause 41 (Notices) of the Agreement are: |
| (a) | [●] |
Note: The execution of this Accordion Facility Notice may not be sufficient for each Accordion Facility Lender to obtain the benefit of the Transaction Security in all jurisdictions. It is the responsibility of each Accordion Facility Lender to ascertain whether any other documents or other formalities are required to obtain the benefit of the Transaction Security in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
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THE SCHEDULE
Name of Accordion Facility Lender | Accordion Facility Commitment ($) |
| |
| |
| |
BORROWERS
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
FITZROY SHIPCO LLC
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
▇▇▇▇▇▇ SHIPCO LLC
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
CROMARTY SHIPCO LLC
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
DOGGER SHIPCO LLC
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
▇▇▇▇▇ SHIPCO LLC
By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
VIKING SHIPCO LLC
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By: ____________________________[OFFICER TITLE][Attorney-in-fact]
For and on behalf of
TRAMORE SHIPCO LLC
ACCORDION FACILITY LENDERS
By: ___________________________
For and on behalf of
[●]
This document is accepted as an Accordion Facility Notice for the purposes of the Agreement by the Facility Agent and the Accordion Facility Date is confirmed as [●].
FACILITY AGENT
By: ______________________________
For and on behalf of
ABN AMRO BANK N.V.
220EUROPE/75083879v5
221EUROPE/75083879v5
that period shall end on the last Business Day in that calendar month; and | |
| |
| (b) If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). |
(a) The short-term interest rate target set by the US Federal Open Market Committee as published by the Federal Reserve Bank of New York from time to time; or (b) if that target is not a single figure, the arithmetic mean of: (i) the upper bound of the short-term interest rate target range set by the US Federal Open Market Committee and published by the Federal Reserve Bank of New York; and (ii) the lower bound of that target range. | |
| |
In relation to the Central Bank Rate prevailing at close of business on any RFR Banking Day, the 20 per cent trimmed arithmetic mean (calculated by the Facility Agent or by any other Finance Party which agrees to determine that mean in place of the Facility Agent), of the Central Bank Rate Spreads for the five most immediately preceding RFR Banking Days for which the RFR is available. | |
In relation to any RFR Banking Day, the difference (expressed as a percentage rate per annum) calculated by the Facility Agent (or by any other Finance Party which agrees to determine that rate in place of the Facility Agent) of: (a) the RFR for that RFR Banking Day; and |
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(b) the Central Bank Rate prevailing at close of business on that RFR Banking Day. | ||
The percentage rate per annum which is the Cumulative Compounded RFR Rate for the Interest Period of the relevant Compounded Rate Loan. | ||
| (a) the RFR for that RFR Banking Day; or | |
| ||
| (i) the Central Bank Rate for that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment; or | |
| (c) if paragraph (b) above applies but the Central Bank Rate for that RFR Banking Day is not available, the percentage rate per annum which is the aggregate of: (i) the most recent Central Bank Rate for a day which is no more than five RFR Banking Days before that RFR Banking Day; and (ii) the applicable Central Bank Rate Adjustment, | |
Interest Periods | | |
Length of Interest Periods: | Three Months | |
Five RFR Banking Days. | ||
| | |
The market for overnight cash borrowing collateralised by US Government securities. | ||
The Business Day which follows the day which is the Lookback Period prior to the last day of the Interest Period. | ||
Reporting Times | | |
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Deadline for Lenders to report market disruption in accordance with Clause 12.4 (Market disruption) | Close of business in London on the Reporting Day for the relevant Compounded Rate Loan. | |
Deadline for Lenders to report their cost of funds in accordance with Clause 12.5 (Cost of funds) | Close of business on the date falling two Business Days after the Reporting Day for the relevant Compounded Rate Loan (or, if earlier, on the date falling three Business Days before the date on which interest is due to be paid in respect of the Interest Period for that Compounded Rate Loan). | |
The secured overnight financing rate (SOFR) administered by the Federal Reserve Bank of New York (or any other person which takes over the administration of that rate) published by the Federal Reserve Bank of New York (or any other person which takes over the publication of that rate). | ||
Any day other than: (a) a Saturday or Sunday; and (b) a day on which the Securities Industry and Financial Markets Association (or any successor organisation) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in US Government securities. | ||
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The "Daily Non-Cumulative Compounded RFR Rate" for any RFR Banking Day "i" during an Interest Period for a Compounded Rate Loan is the percentage rate per annum (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose) calculated as set out below:
where:
"UCCDRi" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking Day "i";
"UCCDRi-1" means, in relation to that RFR Banking Day "i", the Unannualised Cumulative Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest Period;
"dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number;
"ni" means the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day; and
the "Unannualised Cumulative Compounded Daily Rate" for any RFR Banking Day (the "Cumulated RFR Banking Day") during that Interest Period is the result of the below calculation (without rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities of any software used for that purpose):
where:
"ACCDR" means the Annualised Cumulative Compounded Daily Rate for that Cumulated RFR Banking Day;
"tni" means the number of calendar days from, and including, the first day of the Cumulation Period to, but excluding, the RFR Banking Day which immediately follows the last day of the Cumulation Period;
"Cumulation Period" means the period from, and including, the first RFR Banking Day of that Interest Period to, and including, that Cumulated RFR Banking Day;
"dcc" has the meaning given to that term above; and
the "Annualised Cumulative Compounded Daily Rate" for that Cumulated RFR Banking Day is the percentage rate per annum (rounded to five decimal places) calculated as set out below:
225EUROPE/75083879v5
where:
"d0" means the number of RFR Banking Days in the Cumulation Period;
"Cumulation Period" has the meaning given to that term above;
"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order in the Cumulation Period;
"DailyRatei-LP" means, for any RFR Banking Day "i" in the Cumulation Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i";
"ni" means, for any RFR Banking Day "i" in the Cumulation Period, the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;
"dcc" has the meaning given to that term above; and
"tni" has the meaning given to that term above.
226EUROPE/75083879v5
The "Cumulative Compounded RFR Rate" for any Interest Period for a Compounded Rate Loan is the percentage rate per annum (rounded to the same number of decimal places as is specified in the definition of "Annualised Cumulative Compounded Daily Rate" in Schedule 16 (Daily Non-Cumulative Compounded RFR Rate)) calculated as set out below:
where:
"d0" means the number of RFR Banking Days during the Interest Period;
"i" means a series of whole numbers from one to d0, each representing the relevant RFR Banking Day in chronological order during the Interest Period;
"DailyRatei-LP" means for any RFR Banking Day "i" during the Interest Period, the Daily Rate for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "i";
"ni" means, for any RFR Banking Day "i", the number of calendar days from, and including, that RFR Banking Day "i" up to, but excluding, the following RFR Banking Day;
"dcc" means 360 or, in any case where market practice in the Relevant Market is to use a different number for quoting the number of days in a year, that number; and
"d" means the number of calendar days during that Interest Period.
227EUROPE/75083879v5
BORROWERS
SIGNED by )
for and on behalf of)
FITZROY SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
▇▇▇▇▇▇ SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
CROMARTY SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
DOGGER SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
228EUROPE/75083879v5
SIGNED by)
for and on behalf of)
▇▇▇▇▇ SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
VIKING SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
TRAMORE SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
HEDGE GUARANTORS
SIGNED by )
for and on behalf of)
FITZROY SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
229EUROPE/75083879v5
SIGNED by)
for and on behalf of)
▇▇▇▇▇▇ SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
CROMARTY SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
DOGGER SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
▇▇▇▇▇ SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
230EUROPE/75083879v5
SIGNED by)
for and on behalf of)
VIKING SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
for and on behalf of)
TRAMORE SHIPCO LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
PARENT GUARANTOR
SIGNED by)
for and on behalf of)
ARDMORE SHIPPING )
CORPORATION
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
CORPORATE GUARANTOR
SIGNED by )
for and on behalf of)
ARDMORE SHIPPING LLC
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
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ORIGINAL LENDERS
SIGNED by)
duly authorised )
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
duly authorised )
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
ORIGINAL HEDGE COUNTERPARTIES
SIGNED by)
duly authorised )
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
232EUROPE/75083879v5
SIGNED by)
duly authorised)
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
MANDATED LEAD ARRANGERS
SIGNED by)
duly authorised )
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SIGNED by)
duly authorised )
for and on behalf of)
CRÉDIT AGRICOLE CORPORATE )
AND INVESTMENT BANK)
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
FACILITY AGENT
SIGNED by )
duly authorised)
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
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SECURITY AGENT
SIGNED by)
duly authorised )
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
SUSTAINABILITY COORDINATOR
SIGNED by)
duly authorised )
for and on behalf of)
ABN AMRO BANK N.V. )
in the presence of:)
Witness' signature:)
Witness' name:)
Witness' address:)
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