Marshall Islands
|
66-0818228
|
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer Identification No.)
|
|
27 Signal Road, Stamford, CT
|
06902
|
|
(Address of principal executive offices)
|
(Zip Code)
|
Registrant's telephone number, including area code: (203) 674-9900
|
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
|
Title of Each Class
|
Name of Each Exchange on Which Registered
|
|
Common stock, par value $0.01 per share
|
New York Stock Exchange
|
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
|
Large accelerated filer
☐
|
Accelerated filer
☒
|
Non-accelerated filer
☐
|
Smaller reporting company
☐
|
PART I.
|
||
ITEM 1.
|
BUSINESS
|
1
|
ITEM 1A.
|
RISK FACTORS
|
23
|
ITEM 1B.
|
UNRESOLVED STAFF COMMENTS
|
45
|
ITEM 2.
|
PROPERTIES
|
45
|
ITEM 3.
|
LEGAL PROCEEDINGS
|
45
|
ITEM 4.
|
MINE SAFETY DISCLOSURES
|
45
|
PART II.
|
||
ITEM 5.
|
MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES
|
46
|
ITEM 6.
|
SELECTED FINANCIAL DATA
|
47
|
ITEM 7.
|
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
|
49
|
ITEM 7A.
|
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
63
|
ITEM 8.
|
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
|
64
|
ITEM 9.
|
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
|
64
|
ITEM 9A.
|
CONTROLS AND PROCEDURES
|
64
|
ITEM 9B.
|
OTHER INFORMATION
|
65
|
PART III.
|
||
ITEM 10.
|
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
|
66
|
ITEM 11.
|
EXECUTIVE COMPENSATION
|
66
|
ITEM 12.
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDERS MATTERS
|
66
|
ITEM 13.
|
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE
|
66
|
ITEM 14.
|
PRINCIPAL ACCOUNTANT FEES AND SERVICES
|
66
|
PART IV.
|
||
ITEM 15.
|
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
|
67
|
·
|
future operating or financial results;
|
|
·
|
our limited operating history;
|
|
·
|
pending or recent acquisitions, business strategy and expected capital spending or operating expenses;
|
|
·
|
future production of Liquefied Petroleum Gas, or LPG, refined petroleum products and oil prices;
|
|
·
|
infrastructure to support marine transportation of LPG, including pipelines and terminals;
|
|
·
|
competition in the marine transportation industry;
|
|
·
|
oversupply of LPG vessels comparable to ours;
|
|
·
|
future supply and demand for oil and refined petroleum products and natural gas of which LPG is a byproduct;
|
|
·
|
global and regional economic and political conditions;
|
|
·
|
shipping market trends, including charter rates, factors affecting supply and demand and world fleet composition;
|
|
·
|
ability to employ our vessels profitably;
|
|
·
|
our limited number of assets and small number of customers;
|
|
·
|
performance by the counterparties to our charter agreements;
|
|
·
|
termination of our customer contracts;
|
|
·
|
delays and cost overruns in vessel construction projects;
|
|
·
|
our ability to incur additional indebtedness under and compliance with restrictions and covenants in our debt agreements;
|
|
·
|
our need for cash to meet our debt service obligations and to pay installments in connection with our newbuilding vessels;
|
|
·
|
our levels of operating and maintenance costs;
|
|
·
|
our dependence on key personnel;
|
|
·
|
availability of skilled workers and the related labor costs;
|
|
·
|
compliance with governmental, tax, environmental and safety regulation;
|
·
|
changes in tax laws, treaties or regulations;
|
|
·
|
general economic conditions and conditions in the oil and natural gas industry;
|
|
·
|
effects of new products and new technology in our industry;
|
|
·
|
operating hazards in the maritime transportation industry;
|
|
·
|
adequacy of insurance coverage in the event of a catastrophic event;
|
|
·
|
the volatility of the price of our common shares;
|
|
·
|
our incorporation under the laws of the Republic of the Marshall Islands and the limited rights to relief that may be available compared to other countries, including the United States;
|
|
·
|
our financial condition and liquidity, including our ability to obtain financing in the future to fund capital expenditures, acquisitions and other general corporate activities, the terms of such financing and our ability to comply with covenants set forth in our existing and future financing arrangements; and
|
|
·
|
expectations regarding vessel acquisitions.
|
ITEM 1. | BUSINESS |
|
Capacity
(Cbm)
|
Shipyard
|
Sister
Ships
|
Year Built/
Estimated
Delivery
(1)
|
ECO
Vessel
(2)
|
Charterer
(3)
|
Charter
Expiration
(1)
|
OPERATING FLEET
|
|
|
|
|
|
|
|
VLGC
|
|
|
|
|
|
|
|
Captain Nicholas ML
|
82,000
|
Hyundai
|
A
|
2008
|
—
|
Pool
|
—
|
Captain John NP
|
82,000
|
Hyundai
|
A
|
2007
|
—
|
Pool
|
—
|
Captain Markos NL
(4)
|
82,000
|
Hyundai
|
A
|
2006
|
—
|
Shell
|
Q4 2019
|
Comet
(5)
|
84,000
|
Hyundai
|
B
|
2014
|
X
|
Shell
|
Q4 2019
|
Corsair
|
84,000
|
Hyundai
|
B
|
2014
|
X
|
Pool
|
—
|
Corvette
|
84,000
|
Hyundai
|
B
|
2015
|
X
|
Spot
|
—
|
Small Pressure
|
|
|
|
|
|
|
|
Grendon
|
5,000
|
Higaki
|
|
1996
|
—
|
Spot
|
—
|
NEWBUILDING VLGCs
|
|
|
|
|
|
|
|
Cougar
|
84,000
|
Hyundai
|
B
|
Q2 2015
|
X
|
—
|
—
|
Cobra
|
84,000
|
Hyundai
|
B
|
Q2 2015
|
X
|
—
|
—
|
Concorde
|
84,000
|
Hyundai
|
B
|
Q2 2015
|
X
|
—
|
—
|
Continental
|
84,000
|
Hyundai
|
B
|
Q3 2015
|
X
|
—
|
—
|
Constitution
|
84,000
|
Hyundai
|
B
|
Q3 2015
|
X
|
—
|
—
|
Commodore
|
84,000
|
Hyundai
|
B
|
Q3 2015
|
X
|
—
|
—
|
Constellation
|
84,000
|
Hyundai
|
B
|
Q3 2015
|
X
|
—
|
—
|
Cresques
|
84,000
|
Daewoo
|
C
|
Q3 2015
|
X
|
—
|
—
|
Cheyenne
|
84,000
|
Hyundai
|
B
|
Q3 2015
|
X
|
—
|
—
|
Clermont
|
84,000
|
Hyundai
|
B
|
Q4 2015
|
X
|
—
|
—
|
Chaparral
|
84,000
|
Hyundai
|
B
|
Q4 2015
|
X
|
—
|
—
|
Commander
|
84,000
|
Hyundai
|
B
|
Q4 2015
|
X
|
—
|
—
|
Cratis
|
84,000
|
Daewoo
|
C
|
Q4 2015
|
X
|
—
|
—
|
Copernicus
|
84,000
|
Daewoo
|
C
|
Q4 2015
|
X
|
—
|
—
|
Challenger
|
84,000
|
Hyundai
|
B
|
Q4 2015
|
X
|
—
|
—
|
Caravelle
|
84,000
|
Hyundai
|
B
|
Q1 2016
|
X
|
—
|
—
|
Total
|
1,847,000
|
(1)
|
Represents calendar year quarters.
|
|
(2)
|
Represents vessels with very low revolutions per minute, long
‑
stroke, electronically controlled engines, larger propellers, advanced hull design, and low friction paint.
|
|
(3)
|
"Pool" indicates that the vessel is operated in the Helios Pool and receives as charter hire a portion of the net revenue of the pool calculated according to a formula based on the vessel's pro rata performance in the pool.
|
|
(4)
|
Currently on time charter with Shell Tankers (Singapore) Private Limited that began in December 2014 at a rate of $850,000 per month.
|
|
(5)
|
Delivered on July 25, 2014 and on a time charter with Shell Tankers (Singapore) Private Limited that began on that date at a rate of $945,000 per month.
|
·
|
natural resource damages and related assessment costs;
|
|
·
|
real and personal property damages;
|
|
·
|
net loss of taxes, royalties, rents, profits or earnings capacity;
|
|
·
|
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources;
|
|
·
|
net cost of public services necessitated by a spill response, such as protection from fire, safety or health hazards; and
|
|
·
|
loss of subsistence use of natural resources.
|
·
|
on
‑
board installation of automatic identification systems to provide a means for the automatic transmission of safety
‑
related information from among similarly equipped ships and shore stations, including information on a ship's identity, position, course, speed and navigational status;
|
|
·
|
on
‑
board installation of ship security alert systems, which do not sound on the vessel but only alert the authorities on shore;
|
|
·
|
the development of vessel security plans;
|
|
·
|
ship identification number to be permanently marked on a vessel's hull;
|
|
·
|
a continuous synopsis record kept onboard showing a vessel's history including, the name of the ship and of the state whose flag the ship is entitled to fly, the date on which the ship was registered with that state, the ship's identification number, the port at which the ship is registered and the name of the registered owner(s) and their registered address; and
|
|
·
|
compliance with flag state security certification requirements.
|
1) | it is organized in a "qualified foreign country" which is one that grants an "equivalent exemption" from tax to corporations organized in the United States in respect of each category of shipping income for which exemption is being claimed under Section 883; and |
2) | one of the following tests is met: |
A) | more than 50% of the value of its shares is beneficially owned, directly or indirectly, by "qualified shareholders," which as defined includes individuals who are "residents" of a qualified foreign country, to which we refer as the "50% Ownership Test"; or |
B) | its shares are "primarily and regularly traded on an established securities market" in a qualified foreign country or in the United States, to which we refer as the "Publicly ‑ Traded Test." |
·
|
we have, or are considered to have, a fixed place of business in the United States involved in the earning of United States source shipping income; and
|
|
·
|
substantially all of our United States source shipping income is attributable to regularly scheduled transportation, such as the operation of a vessel that follows a published schedule with repeated sailings at regular intervals between the same points for voyages that begin or end in the United States.
|
·
|
at least 75% of our gross income for such taxable year consists of passive income (e.g., dividends, interest, capital gains and rents derived other than in the active conduct of a rental business); or
|
|
·
|
at least 50% of the average value of our assets during such taxable year produce, or are held for the production of, passive income.
|
·
|
the excess distribution or gain would be allocated ratably over the Non
‑
Electing Holder's aggregate holding period for the common shares;
|
|
·
|
the amount allocated to the current taxable year, and any taxable year prior to the first taxable year in which we were a PFIC, would be taxed as ordinary income and would not be "qualified dividend income"; and
|
|
·
|
the amount allocated to each of the other taxable years would be subject to tax at the highest rate of tax in effect for the applicable class of taxpayer for that year, and an interest charge for the deemed tax deferral benefit would be imposed with respect to the resulting tax attributable to each such other taxable year.
|
·
|
the dividend income is effectively connected with the Non
‑
United States Holder's conduct of a trade or business in the United States; or
|
|
·
|
the Non
‑
United States Holder is an individual who is present in the United States for 183 days or more during the taxable year of receipt of the dividend income and other conditions are met.
|
·
|
the gain is effectively connected with the Non
‑
United States Holder's conduct of a trade or business in the United States; or
|
|
·
|
the Non
‑
United States Holder is an individual who is present in the United States for 183 days or more during the taxable year of disposition and other conditions are met.
|
·
|
fails to provide an accurate taxpayer identification number;
|
|
·
|
is notified by the IRS that it has have failed to report all interest or dividends required to be shown on its federal income tax returns; or
|
|
·
|
in certain circumstances, fails to comply with applicable certification requirements.
|
ITEM 1A. | RISK FACTORS. |
·
|
the operator's industry relationships, experience and reputation for customer service, quality operations and safety;
|
|
·
|
the quality, experience and technical capability of the crew;
|
|
·
|
the experience of the crew with the operator and type of vessel;
|
|
·
|
the operator's relationships with shipyards and the ability to get suitable berths;
|
|
·
|
the operator's construction management experience, including the ability to obtain on
‑
time delivery of new vessels according to customer specifications;
|
|
·
|
the operator's willingness to accept operational risks pursuant to the charter, such as allowing termination of the charter for force majeure events; and
|
|
·
|
the competitiveness of the bid in terms of overall price.
|
·
|
locating and acquiring suitable vessels;
|
·
|
identifying and completing acquisitions or joint ventures;
|
|
·
|
integrating any acquired LPG carriers or businesses successfully with our existing operations;
|
|
·
|
hiring, training and retaining qualified personnel and crew to manage and operate our growing business and fleet;
|
|
·
|
expanding our customer base; and
|
|
·
|
obtaining required financing.
|
·
|
supply and demand for LPG products;
|
·
|
worldwide production of natural gas;
|
|
·
|
global and regional economic conditions;
|
|
·
|
the distance LPG products are to be moved by sea;
|
|
·
|
availability of competing LPG vessels;
|
|
·
|
availability of alternative transportation means;
|
|
·
|
changes in seaborne and other transportation patterns;
|
|
·
|
development and exploitation of alternative fuels and non
‑
conventional hydrocarbon production;
|
|
·
|
governmental regulations, including environmental or restrictions on offshore transportation of natural gas;
|
|
·
|
local and international political, economic and weather conditions;
|
|
·
|
domestic and foreign tax policies;
|
|
·
|
accidents, severe weather, natural disasters and other similar incidents relating to the natural gas industry; and
|
|
·
|
weather.
|
·
|
the number of newbuilding deliveries;
|
|
·
|
the scrapping rate of older vessels;
|
|
·
|
LPG vessel prices;
|
|
·
|
changes in environmental and other regulations that may limit the useful lives of vessels; and
|
|
·
|
the number of vessels that are out of service.
|
·
|
adverse global or regional economic or political conditions, particularly in LPG consuming regions, which could reduce energy consumption;
|
|
·
|
a reduction in global or general industrial activity specifically in the plastics and chemical industries;
|
·
|
increases in the cost of petroleum and natural gas from which LPG is derived;
|
|
·
|
decreases in the consumption of LPG or natural gas due to availability of new, alternative energy sources or increases in the price of LPG or natural gas relative to other energy sources or other factors making consumption of LPG or natural gas less attractive; and
|
|
·
|
increases in pipelines for LPG, which are currently few in number, linking production areas and industrial and residential areas consuming LPG, or the conversion of existing non
‑
petroleum gas pipelines to petroleum gas pipelines in those markets.
|
·
|
authorizing our board of directors to issue "blank check" preferred shares without shareholder approval;
|
|
·
|
providing for a classified board of directors with staggered, three
‑
year terms;
|
|
·
|
authorizing the removal of directors only for cause; limiting the persons who may call special meetings of shareholders;
|
|
·
|
establishing advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted on by shareholders at shareholder meetings; and
|
|
·
|
restricting business combinations with interested stockholders.
|
ITEM 1B. | UNRESOLVED STAFF COMMENTS. |
ITEM 2. | PROPERTIES. |
ITEM 3. | LEGAL PROCEEDINGS. |
ITEM 4. | MINE SAFETY DISCLOSURES. |
ITEM 5. | MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. |
|
NYSE
|
Norwegian OTC List
|
||||||||||||||
For the Quarter Ended
|
High
(US$)
|
Low
(US$)
|
High
(NOK)
|
Low
(NOK)
|
||||||||||||
September 30, 2013 (from July 30, 2013, the initial listing date, through September 30, 2013)
|
—
|
—
|
80.00
|
70.00
|
||||||||||||
December 31, 2013
|
—
|
—
|
115.00
|
75.00
|
||||||||||||
March 31, 2014
|
—
|
—
|
127.50
|
106.25
|
||||||||||||
June 30, 2014*
|
24.93
|
17.95
|
132.00
|
105.00
|
||||||||||||
September 30, 2014
|
24.20
|
17.73
|
132.00
|
114.50
|
||||||||||||
December 31, 2014**
|
18.15
|
9.94
|
114.50
|
75.00
|
||||||||||||
March 31, 2015
|
14.26
|
10.10
|
—
|
—
|
||||||||||||
*
|
Period for the NYSE begins on May 9, 2014
|
|
**
|
Deactivated on the Norwegian OTC List on November 5, 2014
|
ITEM 6. | SELECTED FINANCIAL DATA. |
Dorian LPG Ltd.
|
Predecessor Businesses of Dorian LPG Ltd.
|
|||||||||||||||||||
(in U.S. dollars, except fleet data)
|
Year ended
March 31, 2015 |
Period July 1, 2013 (inception) to
March 31, 2014 |
Period April 1, 2013 to
July 28, 2013 |
Year ended
March 31, 2013 |
Year ended
March 31, 2012 |
|||||||||||||||
Statement of Operations Data
|
|
|
||||||||||||||||||
Revenues
|
$
|
104,129,149
|
$
|
29,633,700
|
$
|
15,383,116
|
$
|
8,661,846
|
$
|
34,571,042
|
||||||||||
Expenses
|
||||||||||||||||||||
Voyage expenses
|
22,081,856
|
6,670,971
|
3,623,872
|
8,751,257
|
2,075,698
|
|||||||||||||||
Voyage expenses
—
related party
|
—
|
—
|
198,360
|
505,926
|
448,683
|
|||||||||||||||
Vessel operating expenses
|
21,256,165
|
8,394,959
|
4,638,725
|
12,038,926
|
14,410,349
|
|||||||||||||||
Management fees
—
related party
|
1,125,000
|
3,122,356
|
601,202
|
1,824,000
|
1,824,000
|
|||||||||||||||
Impairment
(1)
|
1,431,818
|
—
|
—
|
—
|
—
|
|||||||||||||||
Depreciation and amortization
|
14,093,744
|
6,620,372
|
3,955,309
|
12,024,829
|
11,847,628
|
|||||||||||||||
General and administrative expenses
|
14,145,086
|
433,674
|
28,204
|
157,039
|
80,552
|
|||||||||||||||
Total expenses
|
74,133,669
|
25,242,332
|
13,045,672
|
35,301,977
|
30,686,910
|
|||||||||||||||
Operating income
|
29,995,480
|
4,391,368
|
2,337,444
|
3,359,869
|
3,884,132
|
|||||||||||||||
Other income/(expenses)
|
||||||||||||||||||||
Other income
—
related party
|
93,929
|
—
|
—
|
—
|
—
|
|||||||||||||||
Interest and finance costs
|
(289,090
|
)
|
(1,579,206
|
)
|
(762,815
|
)
|
2,568,985
|
)
|
(2,415,855
|
)
|
||||||||||
Interest income
|
418,597
|
428,201
|
98
|
598
|
504
|
|||||||||||||||
(Loss)/gain on derivatives, net
|
(3,959,203
|
)
|
(1,104,001
|
)
|
2,830,205
|
(5,588,479
|
)
|
(10,493,316
|
)
|
|||||||||||
Foreign currency (loss)/gain, net
|
(998,931
|
)
|
697,481
|
(5
|
)
|
(53,700
|
)
|
2,215
|
||||||||||||
Total other (expenses)/income, net
|
(4,734,698
|
)
|
(1,557,525
|
)
|
2,067,483
|
(8,210,566
|
)
|
(13,356,452
|
)
|
|||||||||||
Net income/(loss)
|
$
|
25,260,782
|
$
|
2,833,843
|
$
|
4,404,927
|
$
|
(4,850,697
|
)
|
$
|
(9,472,320
|
)
|
||||||||
Earnings per common share, basic and diluted
|
$
|
0.45
|
$
|
0.09
|
$
|
—
|
$
|
—
|
$
|
—
|
||||||||||
Other Financial Data
|
||||||||||||||||||||
Adjusted EBITDA
(2)
|
$
|
47,346,202
|
$
|
12,137,422
|
$
|
6,292,846
|
$
|
15,331,596
|
$
|
15,734,479
|
||||||||||
Fleet Data
|
||||||||||||||||||||
Calendar days
(3)
|
1,986
|
984
|
476
|
1,460
|
1,464
|
|||||||||||||||
Available days
(4)
|
1,925
|
964
|
476
|
1,447
|
1,421
|
|||||||||||||||
Operating days
(5)
|
1,652
|
941
|
449
|
1,359
|
1,405
|
|||||||||||||||
Fleet utilization
(6)
|
85.8
|
%
|
97.7
|
%
|
94.3
|
%
|
93.9
|
%
|
98.9
|
%
|
||||||||||
Average Daily Results
|
||||||||||||||||||||
Time charter equivalent rate
(7)
|
$
|
49,665
|
$
|
24,402
|
$
|
25,748
|
$
|
21,637
|
$
|
22,809
|
||||||||||
Daily vessel operating expenses
(8)
|
$
|
10,703
|
$
|
8,531
|
$
|
9,745
|
$
|
8,246
|
$
|
9,843
|
(in U.S. dollars)
|
As of
March 31, 2015
|
As of
March 31, 2014
|
||||||
Balance Sheet Data
|
|
|
||||||
Cash and cash equivalents
|
$
|
204,821,183
|
$
|
279,131,795
|
||||
Restricted cash, current
|
—
|
30,948,702
|
||||||
Restricted cash, non
‑
current
|
33,210,000
|
4,500,000
|
||||||
Total assets
|
1,099,101,270
|
840,245,766
|
||||||
Current portion of long-term debt
|
15,677,553
|
9,612,000
|
||||||
Long-term debt – net of current portion
|
184,665,874
|
119,106,500
|
||||||
Total liabilities
|
225,887,011
|
148,046,334
|
||||||
Total shareholders' equity
|
873,214,259
|
692,199,432
|
(1)
|
In the year ended March 31, 2015, we recorded an impairment charge of $1.4 million for 1 owned
Pressurized Gas Carrier
vessel.
|
(2)
|
Adjusted EBITDA is non-U.S. GAAP financial measure and represents net income before interest and finance costs, loss/(gain) on derivatives, net, stock compensation expense, impairment and depreciation and amortization and is used as a supplemental financial measure by management to assess our financial and operating performance. We believe that adjusted EBITDA assists our management and investors by increasing the comparability of our performance from period to period. This increased comparability is achieved by excluding the potentially disparate effects between periods of derivatives, interest and finance costs, stock-based compensation expense, impairment, and depreciation and amortization expense, which items are affected by various and possibly changing financing methods, capital structure and historical cost basis and which items may significantly affect net income between periods. We believe that including adjusted EBITDA as a financial and operating measure benefits investors in selecting between investing in us and other investment alternatives.
|
Dorian LPG Ltd.
|
Predecessor Businesses of Dorian LPG Ltd.
|
|||||||||||||||||||
Year ended
March 31, 2015 |
Period July 1, 2013 (inception) to
March 31, 2014 |
Period April 1, 2013 to
July 28, 2013 |
Year ended
March 31, 2013 |
Year ended
March 31, 2012 |
||||||||||||||||
(in U.S. dollars)
|
|
|
||||||||||||||||||
Net income/(loss)
|
$
|
25,260,782
|
$
|
2,833,843
|
$
|
4,404,927
|
$
|
(4,850,697
|
)
|
$
|
(9,472,320
|
)
|
||||||||
Interest and finance costs
|
289,090
|
1,579,206
|
762,815
|
2,568,985
|
2,415,855
|
|||||||||||||||
Loss/(gain) on derivatives-net
|
3,959,203
|
1,104,001
|
(2,830,205
|
)
|
5,588,479
|
10,943,316
|
||||||||||||||
Stock-based compensation expense
|
2,311,565
|
—
|
—
|
—
|
—
|
|||||||||||||||
Impairment
|
1,431,818
|
—
|
—
|
—
|
—
|
|||||||||||||||
Depreciation and amortization
|
14,093,744
|
6,620,372
|
3,955,309
|
12,024,829
|
11,847,628
|
|||||||||||||||
Adjusted EBITDA
|
47,346,202
|
12,137,422
|
6,292,846
|
15,331,596
|
15,734,479
|
|||||||||||||||
(3)
|
We define calendar days as the total number of days in a period during which each vessel in our fleet was owned. Calendar days are an indicator of the size of the fleet over a period and affect both the amount of revenues and the amount of expenses that are recorded during that period.
|
(4)
|
We define available days as calendar days less aggregate off
‑
hire days associated with scheduled maintenance, which include major repairs, drydockings, vessel upgrades or special or intermediate surveys. We use available days to measure the aggregate number of days in a period that our vessels should be capable of generating revenues.
|
(5)
|
We define operating days as available days less the aggregate number of days that our vessels are off
‑
hire for any reason other than scheduled maintenance. We use operating days to measure the number of days in a period that our operating vessels are on hire.
|
(6)
|
We calculate fleet utilization by dividing the number of operating days during a period by the number of available days during that period. An increase in non
‑
scheduled off
‑
hire days would reduce our operating days, and therefore, our fleet utilization. We use fleet utilization to measure our ability to efficiently find suitable employment for our vessels.
|
(7)
|
Time charter equivalent rate, or "TCE rate", is a measure of the average daily revenue performance of a vessel. TCE rate is a shipping industry performance measure used primarily to compare period
‑
to
‑
period changes in a shipping company's performance despite changes in the mix of charter types (such as time charters, voyage charters) under which the vessels may be employed between the periods. Our method of calculating TCE rate is to divide revenue net of voyage expenses by operating days for the relevant time period.
|
(8)
|
Daily vessel operating expenses are calculated by dividing vessel operating expenses by calendar days for the relevant time period.
|
ITEM 7. | MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. |
·
|
pool points (vessel attributes such as cargo carrying capacity, fuel consumption, and construction characteristics are taken into consideration); and
|
|
·
|
number of days the vessel participated in the pool in the period. We recognize pool revenue on a monthly basis, when the vessel has participated in a pool during the period and the amount of pool revenue for the month can be estimated reliably. We receive estimated vessel earnings based on the known number of days the vessel has participated in the pool, the contract terms, and the estimated monthly pool revenue. We receive a report from the pool which identifies the number of days the vessel participated in the pool, the total pool points for the period, the total pool revenue for the period, and the calculated share of pool revenue for the vessel. We review the report for consistency with each vessel's pool agreement and vessel management records and make any adjustments required to meet US GAAP reporting standards.
|
·
|
reports by industry analysts and data providers that focus on our industry and related dynamics affecting vessel values;
|
|
·
|
news and industry reports of similar vessel sales;
|
|
·
|
approximate market values for our vessels or similar vessels that we have received from shipbrokers, whether solicited or unsolicited, or that shipbrokers have generally disseminated;
|
|
·
|
offers that we may have received from potential purchasers of our vessels; and
|
|
·
|
vessel sale prices and values of which we are aware through both formal and informal communications with shipowners, shipbrokers, industry analysts and various other shipping industry participants and observers.
|
Vessels
|
Capacity
(Cbm)
|
Year Built
|
Date of Acquisition/
Delivery
|
Purchase Price/ Original Cost
|
Carrying value at March 31, 2015
(1)
|
Carrying value at March 31, 2014
(1)
|
|||||||||||||||
Captain Nicholas ML
|
82,000
|
2008
|
7/29/2013
|
68,156,079
|
63,092,093
|
66,123,231
|
|||||||||||||||
Captain John NP
|
82,000
|
2007
|
7/29/2013
|
65,187,174
|
60,030,417
|
63,117,421
|
|||||||||||||||
Captain Markos NL
|
82,000
|
2006
|
7/29/2013
|
61,421,882
|
56,508,422
|
59,448,443
|
|||||||||||||||
Comet
|
84,000
|
2014
|
7/25/2014
|
75,276,432
|
73,433,095
|
—
|
|||||||||||||||
Corsair
|
84,000
|
2014
|
9/26/2014
|
80,906,292
|
79,416,243
|
—
|
|||||||||||||||
Corvette
|
84,000
|
2015
|
1/2/2015
|
84,232,810
|
83,495,783
|
—
|
|||||||||||||||
Grendon
(2)
|
5,000
|
1996
|
7/29/2013
|
6,625,000
|
4,000,000
|
6,145,771
|
|||||||||||||||
|
503,000
|
|
441,805,669
|
419,976,053
|
194,834,866
|
(1)
|
Our vessels are stated at carrying values (refer to our accounting policy in Note 2 to our financial statements).
|
(2)
|
During the year ended March 31, 2015, an impairment loss was taken on the
Grendon
of $1.4 million and the carrying value was written down to $4.0 million.
|
Net cash provided by operating activities
|
$
|
25,623,220
|
||
Net cash used in investing activities
|
(312,326,844
|
)
|
||
Net cash provided by financing activities
|
213,694,591
|
|||
Net decrease in cash and cash equivalents
|
$
|
(74,310,612
|
)
|
Net cash provided by operating activities
|
$
|
7,236,422
|
||
Net cash used in investing activities
|
(221,434,724
|
)
|
||
Net cash provided by financing activities
|
493,322,093
|
|||
Net increase in cash and cash equivalents
|
$
|
279,131,795
|
|
Predecessor
|
|||||||
|
April 1, 2013 to July 28, 2013
|
Year ended March 31, 2013
|
||||||
Net cash provided by operating activities
|
$
|
4,670,470
|
$
|
8,255,783
|
||||
Net cash used in investing activities
|
(90,492
|
)
|
(469,929
|
)
|
||||
Net cash used in financing activities
|
(5,606,000
|
)
|
(8,784,500
|
)
|
||||
Net decrease in cash and cash equivalents
|
(1,026,022
|
)
|
(998,646
|
)
|
Contractual Obligations
|
|
|
Payments due by period
|
||||||||||||||||||
|
Total
|
Less than
1 Year
|
1 to 3 Years
|
3 to 5 Years
|
More than
5 Years
|
|||||||||||||||
Long
‑
term debt obligations
|
$
|
200,343,427
|
$
|
15,677,553
|
$
|
31,355,106
|
$
|
73,054,106
|
$
|
80,256,662
|
||||||||||
Interest payments
(1)
|
43,284,241
|
9,451,371
|
17,641,449
|
10,709,410
|
5,482,011
|
|||||||||||||||
Remaining payments on vessels under construction
(2)
|
871,414,765
|
871,414,765
|
—
|
—
|
—
|
|||||||||||||||
Remaining payments on office leases
(3)
|
1,124,010
|
376,620
|
607,020
|
140,370
|
—
|
|||||||||||||||
Total
|
$
|
1,116,166,443
|
$
|
896,920,309
|
$
|
49,603,575
|
$
|
83,903,886
|
$
|
85,738,673
|
(1)
|
Our interest commitment on our RBS Loan Facility is calculated based on an as assumed LIBOR rate of 0.403% (the six
‑
month LIBOR rate as of March 31, 2015), plus the applicable margin for the respective period as per the loan agreement and the estimated net settlement of our interest rate swaps. Our interest commitment on our 2015 Debt Facility is calculated based on an as assumed LIBOR rate of 0.274% (the three
‑
month LIBOR rate as of March 31, 2015), plus the applicable margin for the respective period as per the loan agreement.
|
|
(2)
|
Includes $14.8 million of commitments for additional features not included in the contract price of the vessels and $4.2 million of supervision fees.
|
|
(3)
|
Our United Kingdom and Greece office lease payments were translated into U.S. Dollars using foreign currency equivalent rates of British Pound Sterling 1.479 and Euro 1.076, respectively, as of March 31, 2015.
|
|
Off-Balance Sheet Arrangements
|
ITEM 7A. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. |
ITEM 8. | FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA. |
ITEM 9. | CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE. |
ITEM 9A. | CONTROLS AND PROCEDURES. |
ITEM 9B. | OTHER INFORMATION. |
ITEM 10. | DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE. |
ITEM 11. | EXECUTIVE COMPENSATION. |
ITEM 12. | SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS. |
ITEM 13. | CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE. |
ITEM 14. | PRINCIPAL ACCOUNTANT FEES AND SERVICES. |
ITEM 15. | EXHIBITS, FINANCIAL STATEMENT SCHEDULES. |
1. | Financial Statements |
2. | Financial Statement Schedules |
All schedules have been omitted because they are not applicable, not required or the information is included elsewhere in the Financial Statements or Notes thereto.
|
3. | Exhibits |
See accompanying Exhibit Index included after the signature page of this Report for a list of exhibits filed or furnished with or incorporated by reference in this annual report.
|
|
Dorian LPG Ltd.
|
|
(Registrant)
|
|
|
|
/s/ John Hadjipateras
|
|
John Hadjipateras
|
|
President and Chief Executive Officer
|
Signature
|
|
Capacity
|
|
/s/ John Hadjipateras
|
|
President, Chief Executive Officer and Chairman of the Board
|
|
John Hadjipateras
|
|
(Principal Executive Officer)
|
|
/s/ Theodore B. Young
|
|
Chief Financial Officer
|
|
Theodore B. Young
|
|
(Principal Financial Officer and Principal Accounting Officer)
|
|
/s/ John C. Lycouris
|
|
Director
|
|
John C. Lycouris
|
|
||
/s/ Thomas J. Coleman
|
|
Director
|
|
Thomas J. Coleman
|
|
||
/s/ Charles Fabrikant
|
|
Director
|
|
Charles Fabrikant
|
|
||
/s/ Ted Kalborg
|
|
Director
|
|
Ted Kalborg
|
|
||
/s/ Øivind Lorentzen
|
|
Director
|
|
Øivind Lorentzen
|
|
||
/s/ Malcolm McAvity
|
|
Director
|
|
Malcolm McAvity
|
|
||
/s/ David G. Savett
|
|
Director
|
|
David G. Savett
|
|
||
/s/ Christina Tan
|
|
Director
|
|
Christina Tan
|
|
3.1
|
Articles of Incorporation, incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form F-1 (Registration Number 333-194434)
|
3.2
|
Bylaws, incorporated by reference to Exhibit 3.2 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
3.3
|
Amendment to Articles of Incorporation, incorporated by reference to Exhibit 3.3 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
4.1
|
Form of Common Share Certificate, incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.1
|
Equity Incentive Plan, incorporated by reference to Exhibit 10.1 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.2
|
Shareholders Agreement Dorian LPG Ltd., Scorpio Tankers Inc., SeaDor Holdings LLC and Dorian Holdings LLC, incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
†
10.3
|
Purchase Agreement between Dorian LPG Ltd. and Scorpio Tankers Inc., dated November 26, 2013, incorporated by reference to Exhibit 10.3 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.4
|
Management Agreement, dated July 26, 2013, between CMNL LPG Transport LLC and Dorian (Hellas), SA, incorporated by reference to Exhibit 10.4 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.5
|
Management Agreement, dated July 26, 2013, between CJNP LPG Transport LLC and Dorian (Hellas), SA, incorporated by reference to Exhibit 10.5 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.6
|
Management Agreement, dated July 26, 2013, between CNML LPG Transport LLC and Dorian (Hellas), SA, incorporated by reference to Exhibit 10.6 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.7
|
Management Agreement, dated July 26, 2013, between Grendon Tanker LLC and Dorian (Hellas), SA, incorporated by reference to Exhibit 10.7 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.8
|
Option and Assignment Agreement among Dorian LPG Ltd., Dorian Holdings, Dorian (Hellas) and Seacor Gas Transport Corporation, dated July 29, 2013, incorporated by reference to Exhibit 10.8 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.9
|
Contribution and Release Agreement between Dorian LPG Ltd. and, Dorian (Hellas), SA and SeaDor Holdings LLC, dated July 29, 2013, incorporated by reference to Exhibit 10.9 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.10
|
$135.2 million Term Loan Facility, dated July 29, 2013, between CJNP LPG Transport LLC, CMNL LPG Transport LLC, CNML LPG Transport LLC, Corsair LPG Transport LLC, Dorian LPG Ltd. and The Royal Bank of Scotland plc, incorporated by reference to Exhibit 10.10 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.11
|
Contribution and Conveyance Agreement, dated July 29, 2013, between Dorian LPG Ltd. and Dorian Holdings LLC, incorporated by reference to Exhibit 10.11 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.12
|
Charter Party Agreement with Petredec Limited with respect to
Grendon
, dated May 27, 2011, as amended, incorporated by reference to Exhibit 10.12 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.13
|
Charter Party Agreement with Statoil ASA with respect to
Captain Markos NL
, dated October 20, 2010, incorporated by reference to Exhibit 10.13 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.14
|
Charter Party Agreement with Statoil ASA with respect to
Captain Nicholas ML
, dated April 7, 2008, incorporated by reference to Exhibit 10.14 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.15
|
Transition Agreement, dated July 29, 2013, as amended, by and between Dorian LPG (USA) LLC and Eagle Ocean Transport Inc., incorporated by reference to Exhibit 10.15 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.16
|
Transition Agreement, dated July 29, 2013, as amended, by and between Dorian LPG (USA) LLC. and Highbury Shipping Services Ltd., incorporated by reference to Exhibit 10.16 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.17
|
Transition Agreement, dated July 29, 2013, as amended, by and between Dorian LPG Management Corp. and Dorian (Hellas) S.A., incorporated by reference to Exhibit 10.17 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.18
|
Newbuilding Services Agreement, dated July 26, 2013, by and between Dorian LPG Ltd. and Dorian (Hellas) S.A., incorporated by reference to Exhibit 10.18 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.19
|
Supplemental Letter to $135.2 million Term Loan Facility, dated October 18, 2013, incorporated by reference to Exhibit 10.19 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.20
|
Form of Registration Rights Agreement by and between Dorian LPG Ltd. and Kensico Capital Management Corporation, incorporated by reference to Exhibit 10.20 to the Company's Registration Statement on Form F-1 (Registration Number 333- 194434)
|
10.21
|
Form of Vessel Management Agreement with Dorian LPG Management Corp. (Captain Markos NL), incorporated by reference to Exhibit 4.21 to the Company's Annual Report on Form 20-F filed with the SEC on July 30, 2014
|
10.22
|
Form of General Agency Agreement with Dorian LPG Management Corp. (Captain Markos NL), incorporated by reference to Exhibit 4.22 to the Company's Annual Report on Form 20-F filed with the SEC on July 30, 2014
|
10.23
|
Newbuilding Service Agreement between Dorian LPG Ltd. and Dorian LPG (USA) LLC, incorporated by reference to Exhibit 4.23 to the Company's Annual Report on Form 20-F filed with the SEC on July 30, 2014
|
10.24
|
Administrative, Advisory and Support Services Agreement between Dorian LPG Ltd. and Dorian LPG (USA) LLC, incorporated by reference to Exhibit 4.21 to the Company's Annual Report on Form 20-F filed with the SEC on July 30, 2014
|
10.25
|
Facility Agreement dated March 23, 2015, by and among Dorian LPG Finance LLC, as Borrower, Dorian LPG Ltd., as Facility Guarantor, certain wholly-owned subsidiaries of Dorian LPG Ltd. and the lenders party thereto
|
21.1
|
List of Subsidiaries
|
31.1
|
Certification of Chief Executive Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
31.2
|
Certification of Chief Financial Officer pursuant to Exchange Act Rules 13a-14(a) and 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
32.1
|
Certifications of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
32.2
|
Certifications of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
101.INS*
|
XBRL Document
|
101.SCH*
|
XBRL Taxonomy Extension Schema
|
101.CAL*
|
XBRL Taxonomy Extension Schema Calculation Linkbase
|
101.DEF*
|
XBRL Taxonomy Extension Schema Definition Linkbase
|
101.LAB*
|
XBRL Taxonomy Extension Schema Label Linkbase
|
101.PRE*
|
XBRL Taxonomy Extension Schema Presentation Linkbase
|
DORIAN LPG LTD.
|
||
Report of Independent Registered Public Accounting Firm
|
F-1
|
|
Consolidated Balance Sheets as of March 31, 2015 and 2014
|
F-2
|
|
Consolidated Statement of Operations for the year ended March 31, 2015 and for the period July 1, 2013 (inception) to March 31, 2014
|
F-3
|
|
Consolidated Statement of Shareholders' Equity for the year ended March 31, 2015 and for the period July 1, 2013 (inception) to March 31, 2014
|
F-4
|
|
Consolidated Statement of Cash Flows for the year ended March 31, 2015 and for the period July 1, 2013 (inception) to March 31, 2014
|
F-5
|
|
Notes to Consolidated Financial Statements
|
F-6
|
|
PREDECESSOR BUSINESSES OF DORIAN LPG LTD.
|
||
Report of Independent Registered Public Accounting Firm
|
F-29
|
|
Predecessor Combined Statements of Operations for the period April 1, 2013 to July 28, 2013 and for the year ended March 31, 2013
|
F-30
|
|
Predecessor Combined Statements of Owners' Equity for the period April 1, 2013 to July 28, 2013 and for the year ended March 31, 2013
|
F-31
|
|
Predecessor Combined Statements of Cash Flows for the period April 1, 2013 to July 28, 2013, and for the year ended March 31, 2013
|
F-32 | |
Notes to Predecessor Combined Financial Statements
|
F-33
|
March 31, 2015
|
March 31, 2014
|
|||||||
Assets
|
||||||||
Current assets
|
||||||||
Cash and cash equivalents
|
204,821,183
|
279,131,795
|
||||||
Restricted cash
|
—
|
30,948,702
|
||||||
Trade receivables, net and accrued revenues
|
22,847,224
|
1,966,746
|
||||||
Prepaid expenses and other receivables
|
1,780,548
|
343,047
|
||||||
Due from related parties
|
386,743
|
1,639,497
|
||||||
Inventories
|
3,375,759
|
1,058,329
|
||||||
Total current assets
|
233,211,457
|
315,088,116
|
||||||
Fixed assets
|
||||||||
Vessels, net
|
419,976,053
|
194,834,866
|
||||||
Vessels under construction
|
398,175,504
|
323,206,206
|
||||||
Other fixed assets, net
|
464,889
|
60,904
|
||||||
Total fixed assets
|
818,616,446
|
518,101,976
|
||||||
Other non‑current assets
|
||||||||
Other non-current assets
|
97,446
|
—
|
||||||
Deferred charges, net
|
13,965,921
|
2,555,674
|
||||||
Restricted cash
|
33,210,000
|
4,500,000
|
||||||
Total assets
|
1,099,101,270
|
840,245,766
|
||||||
Liabilities and shareholders' equity
|
||||||||
Current liabilities
|
||||||||
Trade accounts payable
|
5,224,349
|
2,401,456
|
||||||
Accrued expenses
|
5,647,702
|
2,196,386
|
||||||
Due to related parties
|
525,170
|
113,465
|
||||||
Deferred income
|
1,122,239
|
554,111
|
||||||
Current portion of long‑term debt
|
15,677,553
|
9,612,000
|
||||||
Total current liabilities
|
28,197,013
|
14,877,418
|
||||||
Long‑term liabilities
|
||||||||
Long‑term debt—net of current portion
|
184,665,874
|
119,106,500
|
||||||
Derivative instruments
|
12,730,462
|
14,062,416
|
||||||
Other long-term liabilities
|
293,662
|
—
|
||||||
Total long‑term liabilities
|
197,689,998
|
133,168,916
|
||||||
Total liabilities
|
225,887,011
|
148,046,334
|
||||||
Shareholders' equity
|
||||||||
Preferred stock, $.01 par value, 50,000,000 shares authorized, none issued nor outstanding
|
—
|
—
|
||||||
Common stock, $.01 par value, 450,000,000 shares authorized, 58,057,493,and 48,365,011 shares issued and outstanding as of March 31, 2015 and March 31, 2014, respectively
|
580,575
|
483,650
|
||||||
Additional paid‑in‑capital
|
844,539,059
|
688,881,939
|
||||||
Retained earnings
|
28,094,625
|
2,833,843
|
||||||
Total shareholders' equity
|
873,214,259
|
692,199,432
|
||||||
Total liabilities and shareholders' equity
|
1,099,101,270
|
840,245,766
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
|||||||
Revenues
|
$
|
104,129,149
|
$
|
29,633,700
|
||||
Expenses
|
||||||||
Voyage expenses
|
22,081,856
|
6,670,971
|
||||||
Vessel operating expenses
|
21,256,165
|
8,394,959
|
||||||
Management fees—related party
|
1,125,000
|
3,122,356
|
||||||
Impairment
|
1,431,818
|
—
|
||||||
Depreciation and amortization
|
14,093,744
|
6,620,372
|
||||||
General and administrative expenses
|
14,145,086
|
433,674
|
||||||
Total expenses
|
74,133,669
|
25,242,332
|
||||||
Operating income
|
29,995,480
|
4,391,368
|
||||||
Other income/(expenses)
|
||||||||
Other income—related party
|
93,929
|
—
|
||||||
Interest and finance costs
|
(289,090
|
)
|
(1,579,206
|
)
|
||||
Interest income
|
418,597
|
428,201
|
||||||
Loss on derivatives, net
|
(3,959,203
|
)
|
(1,104,001
|
)
|
||||
Foreign currency (loss)/gain, net
|
(998,931
|
)
|
697,481
|
|||||
Total other expenses, net
|
(4,734,698
|
)
|
(1,557,525
|
)
|
||||
Net income
|
$
|
25,260,782
|
$
|
2,833,843
|
||||
Earnings per common share, basic and diluted
|
$
|
0.45
|
$
|
0.09
|
Number of
common shares |
Common
stock |
Additional
paid‑in capital |
Retained
earnings
|
Due from shareholder
|
Total
|
|||||||||||||||||||
Issuance on inception—July 1, 2013
|
100
|
1
|
99
|
—
|
(100
|
)
|
—
|
|||||||||||||||||
Cancellation—July 29, 2013
|
(100
|
)
|
(1
|
)
|
(99
|
)
|
—
|
100
|
—
|
|||||||||||||||
Issuance—July 29, 2013
|
18,644,324
|
186,443
|
229,804,569
|
—
|
—
|
229,991,012
|
||||||||||||||||||
Issuance—November 26, 2013
|
24,071,506
|
240,715
|
361,957,921
|
—
|
—
|
362,198,636
|
||||||||||||||||||
Issuance—February 12, 2014
|
5,649,200
|
56,492
|
97,119,449
|
—
|
—
|
97,175,941
|
||||||||||||||||||
Fractional shares cancelled
|
(19
|
)
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||||||
Net income for the period
|
—
|
—
|
—
|
2,833,843
|
—
|
2,833,843
|
||||||||||||||||||
Balance, March 31, 2014
|
48,365,011
|
483,650
|
688,881,939
|
2,833,843
|
—
|
692,199,432
|
||||||||||||||||||
Issuance—April 25, 2014
|
1,412,698
|
14,127
|
25,849,437
|
—
|
—
|
25,863,564
|
||||||||||||||||||
Issuance—May 13, 2014
|
7,105,263
|
71,053
|
123,169,507
|
—
|
—
|
123,240,560
|
||||||||||||||||||
Issuance—May 22, 2014
|
245,521
|
2,455
|
4,335,901
|
—
|
—
|
4,338,356
|
||||||||||||||||||
Restricted share award issuances
|
929,000
|
9,290
|
(9,290
|
)
|
—
|
—
|
—
|
|||||||||||||||||
Net income for the period
|
—
|
—
|
—
|
25,260,782
|
—
|
25,260,782
|
||||||||||||||||||
Stock-based compensation
|
—
|
—
|
2,311,565
|
—
|
—
|
2,311,565
|
||||||||||||||||||
Balance, March 31, 2015
|
58,057,493
|
580,575
|
844,539,059
|
28,094,625
|
—
|
873,214,259
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to
March 31, 2014
|
|||||||
Cash flows from operating activities:
|
||||||||
Net income
|
$
|
25,260,782
|
$
|
2,833,843
|
||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||
Impairment
|
1,431,818
|
—
|
||||||
Depreciation and amortization
|
14,093,744
|
6,620,372
|
||||||
Amortization of financing costs
|
830,899
|
800,806
|
||||||
Unrealized gain on derivatives
|
(1,331,954
|
)
|
(2,623,456
|
)
|
||||
Stock-based compensation expense
|
2,311,565
|
—
|
||||||
Unrealized exchange differences
|
1,244,394
|
(8,004
|
)
|
|||||
Other non-cash items
|
489,039
|
—
|
||||||
Changes in operating assets and liabilities
|
||||||||
Trade receivables, net and accrued revenue
|
(21,018,670
|
)
|
(1,966,746
|
)
|
||||
Prepaid expenses and other receivables
|
(1,437,501
|
)
|
(343,047
|
)
|
||||
Due from related parties
|
1,252,754
|
(1,639,497
|
)
|
|||||
Inventories
|
(2,317,430
|
)
|
396,776
|
|||||
Other non-current assets
|
(97,446
|
)
|
—
|
|||||
Trade accounts payable
|
2,731,828
|
1,799,616
|
||||||
Accrued expenses and other liabilities
|
2,306,631
|
2,043,523
|
||||||
Due to related parties
|
411,705
|
(292,687
|
)
|
|||||
Payments for drydocking costs
|
(538,938
|
)
|
(385,077
|
)
|
||||
Net cash provided by operating activities
|
25,623,220
|
7,236,422
|
||||||
Cash flows from investing activities:
|
||||||||
Payments for vessels and vessels under construction
|
(314,173,298
|
)
|
(172,237,529
|
)
|
||||
Net payments to acquire predecessor businesses
|
—
|
(13,732,896
|
)
|
|||||
Restricted cash deposits
|
(28,700,000
|
) |
(35,448,702
|
)
|
||||
Restricted cash released | 30,938,702 |
—
|
||||||
Payments to acquire other fixed assets
|
(392,248
|
)
|
(15,597
|
)
|
||||
Net cash used in investing activities
|
(312,326,844
|
)
|
(221,434,724
|
)
|
||||
Cash flows from financing activities:
|
||||||||
Proceeds from long‑term debt borrowings
|
80,086,143
|
—
|
||||||
Repayment of long‑term debt borrowings
|
(9,612,000
|
)
|
(6,506,000
|
)
|
||||
Financing costs paid
|
(11,220,812
|
)
|
(1,516,847
|
)
|
||||
Cash proceeds from common shares issuances
|
155,830,178
|
510,496,990
|
||||||
Payments relating to issuance costs
|
(1,388,918
|
)
|
(9,152,050
|
)
|
||||
Net cash provided by financing activities
|
213,694,591
|
493,322,093
|
||||||
Effects of exchange rates on cash and cash equivalents
|
(1,301,579
|
)
|
8,004
|
|||||
Net (decrease)/increase in cash and cash equivalents
|
(74,310,612
|
)
|
279,131,795
|
|||||
Cash and cash equivalents at the beginning of the period
|
279,131,795
|
—
|
||||||
Cash and cash equivalents at the end of the period
|
$
|
204,821,183
|
$
|
279,131,795
|
||||
Supplemental disclosure of cash flow information
|
||||||||
Cash paid during the period for interest including interest capitalized to vessels
|
$
|
2,552,893
|
$
|
1,242,500
|
||||
Non cash consideration of shares issued to acquire Predecessor businesses and acquisitions of assets
|
—
|
187,495,680
|
||||||
Financing costs included in liabilities
|
1,039,479
|
—
|
||||||
Issuance costs included in liabilities
|
$
|
244,414
|
$
|
549,966
|
|
•
|
DLPG completed a private placement of 9,310,054 shares of its common stock with institutional investors and other investors in Norway ("NPP"). The shares were issued at NOK 75.00 per share, equivalent to USD 12.66 per share and realized gross proceeds of $117.9 million based on the exchange rate on July 29, 2013.
|
|
•
|
DLPG acquired from Dorian Holdings the following in exchange for 4,667,135 shares of its common stock and $9.7 million in cash:
|
|
(a)
|
100% interest in three ship owning entities, CNML LPG Transport LLC ("CNML"), CJNP LPG Transport LLC ("CJNP") and CMNL LPG Transport LLC ("CMNL"), which each owned a Very Large Gas Carrier ("VLGC") (the
Captain Nicholas ML
, the
Captain John NP
and the
Captain Markos NL
respectively), the related bank debt, interest rate swaps, and the inventory on board each vessel. The
Captain Nicholas ML
,
Captain John NP
and
Captain Markos NL
were previously owned by Cepheus Transport Ltd, Lyra Gas Transport Ltd and Cetus Transport Ltd., all owned by principals of Dorian Holdings until July 29, 2013 on which date they were sold to CNML, CJNP and CMNL, respectively. The sale of the vessels required approval from the bank that had provided the related financing that was assumed by the Company in connection with the transaction and resulted in a modification of the financing terms in connection with the acquisition. A further description of the loan arrangements is provided in Note 11.
|
|
(b)
|
100% interest in two entities, each a party to a contract for the construction of one VLGC, option rights to construct an additional 1.5 VLGCs and $2.67 million in cash.
|
|
•
|
DLPG issued 4,667,135 shares of its common stock to SEACOR Holdings Inc., through its subsidiary, SeaDor Holdings LLC ("SeaDor") as consideration for the following:
|
|
(a)
|
100% interest in a subsidiary company, SEACOR LPGI LLC, a party to a contract for the construction of one VLGC
|
|
(b)
|
$49.9 million in cash and
|
|
|
(c)
|
the assignment to DLPG of option rights to purchase 1.5 VLGC vessels.
|
Subsidiary
|
Type of
vessel (2) |
Vessel's name
|
Built
|
CBM
(1)
|
|
CNML LPG Transport LLC
|
VLGC
|
Captain Nicholas ML
|
2008
|
82,000
|
|
CJNP LPG Transport LLC
|
VLGC
|
Captain John NP
|
2007
|
82,000
|
|
CMNL LPG Transport LLC
|
VLGC
|
Captain Markos NL
|
2006
|
82,000
|
|
Grendon Tanker LLC
|
PGC
|
LPG Grendon
|
1996
|
5,000
|
|
Comet LPG Transport LLC
|
VLGC
|
Comet
|
2014
|
84,000
|
|
Corsair LPG Transport LLC
|
VLGC
|
Corsair
|
2014
|
84,000
|
|
Corvette LPG Transport LLC
|
VLGC
|
Corvette
|
2015
|
84,000
|
Subsidiary
|
Type of
vessel (2) |
Hull
number |
Vessel's Name
|
Estimated
vessel delivery date (4) |
CBM
(1)
|
|
Dorian Shanghai LPG Transport LLC
|
VLGC
|
S749
|
Cougar
|
Q2 2015
|
84,000
|
|
Dorian Houston LPG Transport LLC
|
VLGC
|
S750
|
Cobra
|
Q2 2015
|
84,000
|
|
Concorde LPG Transport LLC
|
VLGC
|
2660
|
Concorde
|
Q2 2015
|
84,000
|
|
Dorian Sao Paulo LPG Transport LLC
|
VLGC
|
S753
|
Continental
|
Q3 2015
|
84,000
|
|
Dorian Ulsan LPG Transport LLC
|
VLGC
|
S755
|
Constitution
|
Q3 2015
|
84,000
|
|
Dorian Amsterdam LPG Transport LLC
|
VLGC
|
S751
|
Commodore
|
Q3 2015
|
84,000
|
|
Constellation LPG Transport LLC
|
VLGC
|
2661
|
Constellation
|
Q3 2015
|
84,000
|
|
Dorian Dubai LPG Transport LLC
|
VLGC
|
2336
|
Cresques
|
Q3 2015
|
84,000
|
|
Dorian Monaco LPG Transport LLC
|
VLGC
|
S756
|
Cheyenne
|
Q3 2015
|
84,000
|
|
Dorian Barcelona LPG Transport LLC
|
VLGC
|
S752
|
Clermont
|
Q4 2015
|
84,000
|
|
Dorian Cape Town LPG Transport LLC
|
VLGC
|
S754
|
Chaparral
|
Q4 2015
|
84,000
|
|
Commander LPG Transport LLC
|
VLGC
|
2662
|
Commander
|
Q4 2015
|
84,000
|
|
Dorian Geneva LPG Transport LLC
|
VLGC
|
2337
|
Cratis
|
Q4 2015
|
84,000
|
|
Dorian Tokyo LPG Transport LLC
|
VLGC
|
2338
|
Copernicus
|
Q4 2015
|
84,000
|
|
Dorian Explorer LPG Transport LLC
|
VLGC
|
S757
|
Challenge
r
|
Q4 2015
|
84,000
|
|
Dorian Exporter LPG Transport LLC
|
VLGC
|
S758
|
Caravelle
|
Q1 2016
|
84,000
|
Management Subsidiaries
|
||
Subsidiary
|
Incorporation
Date |
|
Dorian LPG Management Corp
|
July 2, 2013
|
|
Dorian LPG (USA) LLC (incorporated in USA)
|
July 2, 2013
|
|
Dorian LPG (UK) Ltd. (incorporated in UK)
|
November 18, 2013
|
|
Dorian LPG Finance LLC
|
January 16, 2015
|
|
Dormant Subsidiaries
|
||
Subsidiary
|
Incorporation
Date |
|
SeaCor LPG I LLC
|
April 26, 2013
|
|
SeaCor LPG II LLC
|
April 26, 2013
|
|
Capricorn LPG Transport LLC
|
November 15, 2013
|
|
Constitution LPG Transport LLC
|
February 17, 2014
|
|
Occident River Trading Limited (incorporated in UK)
|
January 9, 2015
|
(1) | CBM: Cubic meters, a standard measure for LPG tanker capacity |
(2) | Very Large Gas Carrier ("VLGC"), Pressurized Gas Carrier ("PGC") |
(3) | Represents newbuild vessels not yet delivered as of December 31, 2014 |
(4) | Represents calendar year quarters |
Charterer
|
% of revenue
Year ended March 31, 2015
|
|||
Statoil ASA
|
27
|
%
|
||
Royal Dutch Shell plc
|
19
|
%
|
||
Itochu Corporation
|
14
|
%
|
||
Indian Oil Corporation Ltd.
|
12
|
%
|
||
Maritime Pressx Limited
|
11
|
%
|
Charterer
|
% of revenue
July 1, 2013 (inception) to March 31, 2014
|
|||
Statoil ASA
|
51
|
%
|
||
Naftomar Shipping and Trading Co. Ltd
|
13
|
%
|
||
Kuwait Petroleum Corporation
|
10
|
%
|
(a)
|
Principles of consolidation:
The consolidated financial statements incorporate the financial statements of the Company and its wholly
‑
owned subsidiaries. Income and expenses of subsidiaries acquired or disposed of during the period are included in the consolidated statements of operations from the effective date of acquisition and up to the effective date of disposal, as appropriate. All intercompany balances and transactions have been eliminated.
|
(b)
|
Use of estimates:
The preparation of the financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
|
(c)
|
Other comprehensive income/(loss):
The Company follows the accounting guidance relating to Comprehensive Income, which requires separate presentation of certain transactions that are recorded directly as components of stockholders' equity. The Company has no other comprehensive income/(loss) and accordingly, comprehensive income/(loss) equals net income/(loss) for the periods presented and thus has not presented this in the statement of operations or in a separate statement.
|
(d)
|
Foreign currency translation:
The functional currency of the Company is the U.S. Dollar. Foreign currency transactions are measured and recorded in the functional currency using the exchange rate in effect at the date of the transaction. As of balance sheet date, monetary assets and liabilities that are denominated in a currency other than the functional currency are adjusted to reflect the exchange rate at the balance sheet date and any gains or losses are included in the statement of operations. For the periods presented, the Company had no foreign currency derivative instruments.
|
(e)
|
Cash and cash equivalents:
The Company considers highly liquid investments such as time deposits and certificates of deposit with an original maturity of three months or less to be cash equivalents.
|
(f)
|
Restricted cash:
Restricted cash represents pledged cash deposits or minimum liquidity to be maintained with certain banks under the Company's borrowing arrangements. In the event that the obligation relating to such deposits is expected to be terminated within the next twelve months or relates to general minimum liquidity requirements with no obligation to retain such funds in retention accounts, these deposits are classified as current assets otherwise they are classified as non
‑
current assets.
|
(g)
|
Trade receivables, net and accrued revenues:
Trade receivables, net and accrued revenues, reflect receivables from vessel charters, net of an allowance for doubtful accounts. At each balance sheet date, all potentially uncollectible accounts are assessed individually for purposes of determining the appropriate provision for doubtful accounts. Provision for doubtful accounts for the periods presented was zero.
|
(h)
|
Inventories:
Inventories consist of bunkers on board the vessels when vessels are unemployed or are operating under voyage charters and lubricants and stores on board the vessels. Inventories are stated at the lower of cost or market. Cost is determined by the first in, first out method.
|
(i)
|
Vessels, net:
Vessels, net are stated at cost, less accumulated depreciation. The costs of the vessels acquired as part of a business acquisition are recorded at their fair value on the date of acquisition. The cost of vessels purchased consists of the contract price, less discounts, plus any direct expenses incurred upon acquisition, including improvements, commission paid, delivery expenses and other expenditures to prepare the vessel for her initial voyage. The initial purchase of LPG coolant for the refrigeration of cargo is also capitalized. Interest costs incurred to finance the cost of vessels during their construction period are capitalized. Subsequent expenditures for conversions and major improvements are also capitalized when they appreciably extend the life, increase the earning capacity or improve the efficiency or safety of the vessels. Repairs and maintenance are expensed as incurred.
|
(j)
|
Impairment of long
‑
lived assets:
The Company reviews their vessels "held and used" for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. When the estimate of future undiscounted cash flows, excluding interest charges, expected to be generated by the use of the asset is less than its carrying amount, the asset is evaluated for an impairment loss. Measurement of the impairment loss is based on the fair value of the asset.
|
(k)
|
Vessel depreciation:
Depreciation is computed using the straight
‑
line method over the estimated useful life of the vessels, after considering the estimated salvage value. Each vessel's salvage value is equal to the product of its lightweight tonnage and estimated scrap rate. Management estimates the useful life of its vessels to be 25 years from the date of initial delivery from the shipyard. Second hand vessels are depreciated from the date of their acquisition through their remaining estimated useful life.
|
(l)
|
Drydocking and special survey costs:
Drydocking and special survey costs are accounted under the deferral method whereby the actual costs incurred are deferred and are amortized on a straight
‑
line basis over the period through the date the next survey is scheduled to become due. We are required to drydock each of our vessels every five years until it reaches 15 years of age, after which we are required to drydock the applicable vessel every two and one
‑
half years. Costs deferred are limited to actual costs incurred at the yard and parts used in the drydocking or special survey. Costs deferred include expenditures incurred relating to shipyard costs, hull preparation and painting, inspection of hull structure and mechanical components, steelworks, machinery works, and electrical works. If a survey is performed prior to the scheduled date, the remaining unamortized balances are immediately written off. Unamortized balances of vessels that are sold are written
‑
off and included in the calculation of the resulting gain or loss in the period of the vessel's sale. The amortization charge is presented within Depreciation and amortization in the consolidated statement of operations.
|
(m)
|
Financing costs:
Financing fees incurred for obtaining new loans and credit facilities are deferred and amortized to interest expense over the respective term of the loan or credit facility using the effective interest rate method. Any unamortized balance of costs relating to loans repaid or refinanced is expensed in the period the repayment or refinancing is made, subject to the accounting guidance regarding Debt—Modifications and Extinguishments. Any unamortized balance of costs related to credit facilities repaid is expensed in the period. Any unamortized balance of costs relating to credit facilities refinanced are deferred and amortized over the term of the respective credit facility in the period the refinancing occurs, subject to the provisions of the accounting guidance relating to Debt—Modifications and Extinguishments. The unamortized financing costs are reflected in Deferred charges in the accompanying consolidated balance sheet.
|
(n)
|
Revenues and expenses:
Revenue is recognized when an agreement exists, the vessel is made available to the charterer or services are provided, the charter hire is determinable and collection of the related revenue is reasonably assured.
|
(o)
|
Repairs and maintenance:
All repair and maintenance expenses, including underwater inspection costs are expensed in the period incurred. Such costs are included in Vessel operating expenses.
|
(p)
|
Stock-based compensation:
Stock-based payments to employees and directors are determined based on their grant date fair values, net of expected forfeitures, and are amortized against income over the vesting period. The fair value is considered to be the closing price recorded on the grant date. We estimate restricted stock award forfeitures at the time of grant and periodically revise those estimates in subsequent periods if actual forfeitures differ from those estimates. As a result, we record stock-based compensation expense only for those awards that are expected to vest.
|
(q)
|
Segment reporting:
Each of the Company's vessels serve the same type of customer, have similar operations and maintenance requirements, operate in the same regulatory environment, and are subject to similar economic characteristics. Based on this, the Company has determined that it operates in one reportable segment, the international transportation of liquid petroleum gas with its fleet of vessels. Furthermore, when the Company charters a vessel to a charterer, the charterer is free to trade the vessel worldwide and, as a result, the disclosure of geographic information is impracticable.
|
(r)
|
Derivative instruments:
All derivatives are stated at their fair value, as either a derivative asset or a liability. The fair value of the interest rate derivatives is based on a discounted cash flow analysis and their fair value changes are recognized in current period earnings. When the derivatives do qualify for hedge accounting, depending upon the nature of the hedge, changes in fair value of the derivatives are either recognized in current period earnings or in other comprehensive income/(loss) (effective portion) until the hedged item is recognized in the consolidated statements of operations. For the periods presented, no derivatives were accounted for as accounting hedges.
|
(s)
|
Fair value of financial instruments:
In accordance with the requirements of accounting guidance relating to Fair Value Measurements, the Company classifies and discloses its assets and liabilities carried at fair value in one of the following three categories:
|
Level 1:
|
Quoted market prices in active markets for identical assets or liabilities.
|
Level 2:
|
Observable market based inputs or unobservable inputs that are corroborated by market data.
|
Level 3:
|
Unobservable inputs that are not corroborated by market data.
|
(t)
|
Recent accounting pronouncements:
On May 28, 2014, the FASB issued ASU 2014-09, Revenue From Contracts With Customers, which outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. This standard is effective for public entities with reporting periods beginning after December 15, 2016. Early adoption is not permitted. The Company has not yet evaluated the impact, if any, of the adoption of this new standard.
On April 7, 2015, the FASB issued Accounting Standard Update 2015-03,
Simplifying the Presentation of Debt Issuance Costs
, which requires debt issuance costs to be presented in the balance sheet as a direct deduction from the associated debt liability. For public business entities, the standard is effective for financial statements issued for fiscal years beginning after December 15, 2015, and interim periods within those fiscal years, on a retrospective basis. Early adoption is permitted. We have not early adopted this standard. The effect from the adoption of this standard would be the presentation of the debt issuance costs as a direct deduction of the related debt liability instead of as a non-current asset.
|
(a)
|
Dorian Holdings:
Dorian LPG Ltd. was formed by Dorian Holdings on July 1, 2013, to acquire and operate LPG tankers and initially to acquire the LPG tankers held by affiliates of Dorian Holdings. These acquisitions were accounted for as the acquisition of a business, refer Notes 1 and 4. In addition on July 29, 2013, we entered into a license agreement with Dorian Holdings pursuant to which Dorian Holdings has granted us a non
‑
transferable, non
‑
exclusive, perpetual (subject to termination for material breach or a change of control event), world
‑
wide, royalty
‑
free right and license to use the Dorian logo and "Dorian LPG" in connection with our LPG business.
|
(b)
|
SEACOR Holdings Inc. ("SEACOR"):
On April 29, 2013, affiliates of the Company entered into a series of agreements with subsidiaries of SEACOR under which the affiliates of the Company granted certain rights to SEACOR to purchase newbuilding contracts for VLGCs and associated options. The affiliates of the Company had the right to repurchase a portion of those contracts and the associated options. As part of these agreements, subsidiaries of SEACOR paid the first installment under the newbuilding contracts to the shipyard, which, under the terms of the agreements, could be partially acquired by Dorian affiliates for the amount of the installments paid, certain agreed third party expenses, and a capital charge of 6% per annum.
|
Cash
|
49,854,870
|
|||
Purchase contract for one VLGC newbuilding contract (includes advance payment)
|
7,009,675
|
|||
Purchase option contracts
|
2,529,126
|
|||
|
59,393,671
|
(c)
|
Scorpio Tankers Inc. ("Scorpio"):
On November 26, 2013, the Company issued 7,990,425 shares of its common stock to Scorpio as consideration for 100% interest in thirteen subsidiary companies, (each a party to a contract for the construction of one VLGC) and $1.9 million in cash. This transaction was accounted for as an asset acquisition.
|
Cash
|
1,930,000
|
|||
Purchase contract for thirteen VLGC newbuilding contracts (includes advance payments)
|
119,386,040
|
|||
|
121,316,040
|
(d)
|
Dorian (Hellas) S.A.:
|
(e)
|
Eagle Ocean Transport Inc.:
As part of the series of agreements with SEACOR, Eagle Ocean Transport, a company 100% owned by Mr. John Hadjipateras, is entitled to retain 100% of any portion of the shipbroker fee rebated to it as compensation for its services in securing the newbuilding contracts for three VLGCs and three associated option agreements. To the extent that any fees are received in respect of option vessels under such agreements, the fees shall be shared evenly between SEACOR and Eagle Ocean Transport. Collectively, Eagle Ocean Transport and SEACOR received a total of $0.8 million and $0.5 million of shipbroker rebates for their services in securing the newbuilding contracts for the year ended March 31, 2015 and period ended March 31, 2014, respectively. In addition, Eagle Ocean Transport was reimbursed for an amount of $0.3 million, representing costs incurred on behalf of the Company relating to equity issuances and debt restructuring for the period July 1, 2013 to March 31, 2014.
|
(f)
|
Consulting:
Since the formation of the Predecessor Companies, a member of our board of directors, who resigned effective May 1, 2015, provided certain chartering and commercial services to the Company, its subsidiaries, and the Predecessor Companies. This individual entered into a consulting agreement on May 1, 2015 that provides for, among other things, an annual fee of $250,000, payable for services rendered commencing on May 8, 2014. For the year ended March 31, 2015, we expensed $0.2 million related to this consulting agreement.
|
|
Acquisition
from Dorian
Holdings
|
Grendon
acquisition
|
Total
|
|||||||||
Cash
|
9,732,911
|
6,672,485
|
16,405,396
|
|||||||||
Equity instruments (4,667,135 common shares of the Company at NOK 75.00 per share)
|
59,092,499
|
—
|
59,092,499
|
|||||||||
Total consideration
|
68,825,410
|
6,672,485
|
75,497,895
|
|||||||||
Fair value of identifiable assets and liabilities acquired:
|
||||||||||||
Cash
|
2,672,500
|
—
|
2,672,500
|
|||||||||
Vessels
|
194,457,529
|
6,625,000
|
201,082,529
|
|||||||||
Inventories on board the vessels
|
1,407,622
|
47,485
|
1,455,107
|
|||||||||
Newbuilding vessels contracted for construction
|
17,593,130
|
—
|
17,593,130
|
|||||||||
Other assets—Vessel purchase options
|
4,605,000
|
—
|
4,605,000
|
|||||||||
Long term bank debt
|
(135,224,500
|
)
|
—
|
(135,224,500
|
)
|
|||||||
Interest rate swaps
|
(16,685,871
|
)
|
—
|
(16,685,871
|
)
|
|||||||
Net assets acquired—fair value
|
68,825,410
|
6,672,485
|
75,497,895
|
$ in 000's
|
For the year ended
March 31, 2014
|
|||
Net revenues
|
$
|
45,017
|
||
Net income
|
$
|
6,613
|
|
March 31, 2015
|
March 31, 2014
|
||||||
Bunkers
|
2,446,424
|
596,768
|
||||||
Lubricants
|
737,502
|
358,381
|
||||||
Victualing
|
132,017
|
83,840
|
||||||
Bonded stores
|
35,399
|
15,354
|
||||||
Communication cards
|
24,417
|
3,986
|
||||||
Total
|
3,375,759
|
1,058,329
|
Cost
|
Accumulated
depreciation |
Net book Value
|
||||||||||
Balance, July 1, 2013
|
—
|
—
|
—
|
|||||||||
Vessel acquisitions through business combinations (Refer Note 4)
|
201,082,529
|
—
|
201,082,529
|
|||||||||
Other
|
307,606
|
—
|
307,606
|
|||||||||
Depreciation
|
—
|
(6,555,269
|
)
|
(6,555,269
|
)
|
|||||||
Balance, March 31, 2014
|
201,390,135
|
(6,555,269
|
)
|
194,834,866
|
||||||||
Additions
|
240,415,534
|
—
|
240,415,534
|
|||||||||
Impairment
(1)
|
(2,625,000
|
)
|
1,193,182
|
(1,431,818
|
)
|
|||||||
Depreciation
|
—
|
(13,842,529
|
)
|
(13,842,529
|
)
|
|||||||
Balance, March 31, 2015
|
439,180,669
|
(19,204,616
|
)
|
419,976,053
|
Balance, July 1, 2013
|
—
|
|||
Acquisition of two newbuilding contracts from Dorian Holdings
on July 29, 2013
(refer Note 4)
|
17,593,130
|
|||
Acquisition of one newbuilding contract from SeaDor on July 29,2013 (refer Note 3b)
|
7,009,675
|
|||
Acquisition of thirteen newbuilding contracts from Scorpio on November 26, 2013 (refer Note 3c)
|
119,386,040
|
|||
Acquisition cost of vessel purchase options from Dorian Holdings and SeaDor exercised on February 21, 2014 (refer Notes 3b and 4)
|
7,134,126
|
|||
Installment payments to shipyards
|
169,271,536
|
|||
Other capitalized expenditures
|
1,839,689
|
|||
Capitalized interest
|
972,010
|
|||
Balance, March 31, 2014
|
323,206,206
|
|||
Installment payments to shipyards
|
300,866,261
|
|||
Other capitalized expenditures
|
11,016,951
|
|||
Capitalized interest
|
3,501,620
|
|||
Vessels delivered (transferred to Vessels)
|
(240,415,534
|
)
|
||
Balance, March 31, 2015
|
398,175,504
|
|
Financing
costs
|
Drydocking
costs
|
Equity
offering costs
|
Total deferred charges, net
|
||||||||||||
On inception , July 1, 2013
|
—
|
—
|
—
|
—
|
||||||||||||
Additions
|
1,516,847
|
600,394
|
1,304,343
|
3,421,584
|
||||||||||||
Amortization
|
(800,807
|
)
|
(65,103
|
)
|
—
|
(865,910
|
)
|
|||||||||
Balance, March 31, 2014
|
716,040
|
535,291
|
1,304,343
|
2,555,674
|
||||||||||||
Additions
|
13,411,075
|
323,623
|
760,680
|
14,495,378
|
||||||||||||
Amortization
|
(830,899
|
)
|
(189,209
|
)
|
—
|
(1,020,108
|
)
|
|||||||||
Transferred to APIC
|
—
|
—
|
(2,065,023
|
)
|
(2,065,023
|
)
|
||||||||||
Balance, March 31, 2015
|
13,296,216
|
669,705
|
—
|
13,965,921
|
March 31, 2015
|
March 31, 2014
|
|||||||
Accrued loan and swap interest
|
1,619,897
|
1,439,237
|
||||||
Accrued voyage and vessel operating expenses
|
1,406,023
|
87,029
|
||||||
Accrued professional services
|
1,282,639
|
173,708
|
||||||
Accrued financing costs
|
705,000
|
—
|
||||||
Accrued employee-related costs
|
546,095
|
—
|
||||||
Accrued IPO charges
|
—
|
469,707
|
||||||
Other
|
88,048
|
26,705
|
||||||
Total
|
5,647,702
|
2,196,386
|
|
Term |
Interest Rate Description
(1)
|
Interest Rate at March 31, 2015
(2)
|
||||
Tranche 1
|
Commercial Financing
|
7 years
|
London InterBank Offered Rate ("LIBOR") plus a margin
(4)
|
3.02
|
%
|
||
Tranche 2
|
KEXIM Direct Financing
|
12 years
(3)
|
LIBOR plus a margin of 2.45%
|
2.72
|
%
|
||
Tranche 3
|
KEXIM Guaranteed
|
12 years
(3)
|
LIBOR plus a margin of 1.40%
|
1.67
|
%
|
||
Tranche 4
|
K-sure Insured
|
12 years
(3)
|
LIBOR plus a margin of 1.50%
|
1.77
|
%
|
(1)
|
The interest rate of the 2015 Debt Facility on Tranche 1 is determined in accordance with the agreement as three or six month LIBOR plus the applicable margin and the interest rate on Tranches 2, 3 and 4 is determined in accordance with the agreement as three month LIBOR plus the applicable margin for the respective tranches.
|
(2)
|
The set LIBOR rate in effect as of March 31, 2015 was 0.27%.
|
(3)
|
The KEXIM Direct Financing, KEXIM Guaranteed, and K-Sure tranches have put options to call for the prepayment on the final payment date of the Commercial Financing tranche subject to specific notifications and commitments for refinancing/renewal of the Commercial Financing tranche.
|
(4)
|
The Commercial Financing tranche margin over LIBOR is 2.75% and is reduced to 2.50% if 50% or more but less than 75% of the vessels financed in the 2015 Debt Facility are employed under time charters as defined in the agreement and to 2.25% if 75% or more of the vessels financed in the 2015 Debt Facility are employed under time charters as defined in the agreement. As of March 31, 2015, the set margin was 2.50%.
|
RBS secured bank debt
|
March 31, 2015
|
March 31, 2014
|
||||||
Tranche A
|
40,800,000
|
44,200,000
|
||||||
Tranche B
|
30,684,000
|
33,241,000
|
||||||
Tranche C
|
47,622,500
|
51,277,500
|
||||||
Total
|
119,106,500
|
128,718,500
|
||||||
2015 Debt Facility
|
||||||||
Commercial Financing
|
26,695,381
|
—
|
||||||
KEXIM Direct Financing
|
21,890,212
|
—
|
||||||
KEXIM Guaranteed
|
21,655,293
|
—
|
||||||
K-sure Insured
|
10,996,041
|
—
|
||||||
Total
|
81,236,927
|
—
|
||||||
Total debt obligations
|
200,343,427
|
128,718,500
|
||||||
Presented as follows:
|
||||||||
Current portion of long
‑
term debt
|
15,677,553
|
9,612,000
|
||||||
Long
‑
term debt—net of current portion
|
184,665,874
|
119,106,500
|
||||||
Total
|
200,343,427
|
128,718,500
|
Year ending March 31:
|
|
|||
2016
|
15,677,553
|
|||
2017
|
15,677,553
|
|||
2018
|
15,677,553
|
|||
2019
|
63,333,553
|
|||
2020
|
9,720,553
|
|||
Thereafter
|
80,256,662
|
|||
Total
|
200,343,427
|
·
|
9,310,054 common shares on completion of its NPP, at NOK75.00 per share, equivalent to USD12.66 per share based on the exchange rate on July 29, 2013
|
|
·
|
4,667,135 common shares to Dorian Holdings (refer Note 4)
|
|
·
|
4,667,135 common shares to SeaDor Holdings LLC (refer Note 3)
|
·
|
16,081,081 common shares on completion of a second Private Placement in Norway ("NPP2"), at NOK92.50 per share, equivalent to USD15.16 per share based on the exchange rate on November 26, 2013
|
|
·
|
7,990,425 common shares to Scorpio Tankers Inc. (refer Note 3)
|
|
·
|
5,649,200 common shares on completion of a third Private Placement in Norway ("NPP3"), at NOK110.00 per share, equivalent to USD17.92 per share based on the exchange rate on February 12, 2014
|
|
Restricted Share Awards
|
Number of Shares
|
Weighted-Average
Grant-Date Fair Value |
||||||
Unvested as of March 31, 2014
|
—
|
$
|
—
|
|||||
Granted
|
929,000
|
19.70
|
||||||
Unvested as of March 31, 2015
|
929,000
|
$
|
19.70
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
|||||||
Voyage charter revenues
|
$
|
77,331,934
|
$
|
11,210,785
|
||||
Time charter revenues
|
26,098,290
|
17,602,137
|
||||||
Other revenues
|
698,925
|
820,778
|
||||||
Total
|
$
|
104,129,149
|
$
|
29,633,700
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
|||||||
Bunkers
|
$
|
15,678,905
|
$
|
5,271,126
|
||||
Port charges and other related expenses
|
3,603,707
|
552,634
|
||||||
Brokers' commissions
|
1,703,589
|
386,244
|
||||||
Security cost
|
709,035
|
298,820
|
||||||
War risk insurances
|
146,320
|
37,001
|
||||||
Other voyage expenses
|
240,300
|
125,146
|
||||||
Total
|
$
|
22,081,856
|
$
|
6,670,971
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
|||||||
Crew wages and related costs
|
$
|
14,529,018
|
$
|
5,306,441
|
||||
Spares and stores
|
2,666,100
|
1,395,287
|
||||||
Insurance
|
1,343,071
|
566,021
|
||||||
Repairs and maintenance costs
|
1,315,028
|
502,424
|
||||||
Lubricants
|
964,951
|
480,279
|
||||||
Miscellaneous expenses
|
437,997
|
144,507
|
||||||
Total
|
$
|
21,256,165
|
$
|
8,394,959
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
|||||||
Interest incurred
|
$
|
2,657,943
|
$
|
1,666,159
|
||||
Amortization of financing costs
|
830,899
|
800,806
|
||||||
Other financing costs
|
301,868
|
84,251
|
||||||
Capitalized interest
|
(3,501,620
|
)
|
(972,010
|
)
|
||||
Total
|
$
|
289,090
|
$
|
1,579,206
|
March 31, 2015
|
||||
Less than one year
|
$
|
376,620
|
||
One to three years
|
607,020
|
|||
Three to five years
|
140,370
|
|||
Total
|
$
|
1,124,010
|
Subsidiary
|
Termination Date
|
Fixed
interest rate
|
Nominal value
March 31,
2015
|
||||||
CMNL(1)
|
Nov 2018
|
5.395
|
%
|
20,456,000
|
|||||
CMNL(1)
|
Nov 2018
|
4.936
|
%
|
10,228,000
|
|||||
CJNP(2)
|
March 2019
|
4.772
|
%
|
30,523,500
|
|||||
CJNP(2)
|
March 2019
|
2.960
|
%
|
10,276,500
|
|||||
CNML(3)
|
July 2020
|
4.350
|
%
|
46,440,000
|
|||||
|
|
117,924,000
|
|
(1)
|
reduces semi
‑
annually by $1,278,500 with a final settlement of $21,734,500 due in November 2018.
|
|
(2)
|
reduces semi
‑
annually by $1,700,000 with a final settlement of $28,900,000 due in March 2019.
|
|
(3)
|
RBS exercised its right to extend the interest rate swap until July 2020 and based on the extension reduces semi-annually by $1,720,000 with a final settlement of $27,520,000 due in July 2020.
|
March 31, 2015
|
March 31, 2014
|
||||||||||||||||
Derivatives not designated as hedging instruments
|
Balance sheet location
|
Asset
derivatives |
Liability
derivatives |
Asset
derivatives |
Liability
derivatives |
||||||||||||
Interest rate swap agreements
|
Long-term liabilities—Derivative instruments
|
—
|
12,730,462
|
—
|
14,062,416
|
Derivatives not designated as hedging instruments
|
Location of gain/(loss) recognized
|
Year ended
March 31, 2015 |
July 1, 2013 (inception) to March 31, 2014
|
||||||
Interest Rate Swap—Change in fair value
|
Gain/(loss) on derivatives, net
|
$
|
1,331,954
|
$
|
2,623,456
|
||||
Interest Rate Swap—Realized loss
|
Gain/(loss) on derivatives, net
|
(5,291,157
|
)
|
(3,727,457
|
)
|
||||
Loss on derivatives—net
|
$
|
(3,959,203
|
)
|
$
|
(1,104,001
|
)
|
(In U.S. dollars except share data)
|
Year ended
March 31, 2015
|
July 1, 2013 (inception) to March 31, 2014
|
||||||
Numerator:
|
||||||||
Net income
|
$
|
25,260,782
|
$
|
2,833,843
|
||||
Denominator:
|
||||||||
Weighted average number of common shares outstanding, basic and diluted
|
56,183,707
|
32,075,897
|
||||||
EPS:
|
||||||||
Basic and diluted
|
$
|
0.45
|
$
|
0.09
|
Three months ended
June 30, 2014
|
Three months ended
September 30, 2014
|
Three months ended
December 31, 2014
|
Three months ended
March 31, 2015
|
|||||||||||||
|
||||||||||||||||
Revenues
|
$
|
15,853,840
|
$
|
20,358,211
|
$
|
32,583,990
|
$
|
35,333,108
|
||||||||
Operating income
|
5,200,271
|
3,476,450
|
10,825,590
|
10,493,169
|
||||||||||||
Net income
|
$
|
3,667,249
|
$
|
3,768,677
|
$
|
8,996,605
|
$
|
8,828,251
|
||||||||
Earnings per common share, basic and diluted
|
$
|
0.07
|
$
|
0.07
|
$
|
0.16
|
$
|
0.15
|
July 1, 2013 (inception) to September 30, 2013
|
Three months ended
December 31, 2013
|
Three months ended
March 31, 2014
|
||||||||||
Revenues
|
$
|
6,055,682
|
$
|
13,707,591
|
$
|
9,870,427
|
||||||
Operating income/(loss)
|
(509,733
|
)
|
3,908,734
|
992,366
|
||||||||
Net (loss)/income
|
$
|
(1,425,761
|
)
|
$
|
5,570,247
|
$
|
(1,310,643
|
)
|
||||
Earnings/(loss) per common share, basic and diluted
|
$
|
(0.08
|
)
|
$
|
0.20
|
$
|
(0.03
|
)
|
|
April 1, 2013 to
|
Year ended
|
||||||
|
July 28, 2013
|
March 31, 2013
|
||||||
Revenues
|
15,383,116
|
38,661,846
|
||||||
Expenses
|
||||||||
Voyage expenses
|
3,623,872
|
8,751,257
|
||||||
Voyage expenses—related party
|
198,360
|
505,926
|
||||||
Vessel operating expenses
|
4,638,725
|
12,038,926
|
||||||
Management fees—related party
|
601,202
|
1,824,000
|
||||||
Depreciation and amortization
|
3,955,309
|
12,024,829
|
||||||
General and administrative expenses
|
28,204
|
157,039
|
||||||
Total expenses
|
13,045,672
|
35,301,977
|
||||||
Operating income
|
2,337,444
|
3,359,869
|
||||||
Other income/(expenses)
|
||||||||
Interest and finance costs
|
(762,815
|
)
|
(2,568,985
|
)
|
||||
Interest income
|
98
|
598
|
||||||
Gain/(loss) on derivatives, net
|
2,830,205
|
(5,588,479
|
)
|
|||||
Foreign currency loss, net
|
(5
|
)
|
(53,700
|
)
|
||||
Total other income/(loss), net
|
2,067,483
|
(8,210,566
|
)
|
|||||
Net income/(loss)
|
4,404,927
|
(4,850,697
|
)
|
|
Owners'
capital
|
Accumulated
deficit
|
Total
|
|||||||||
Balance, April 1, 2012
|
73,880,910
|
(56,272,423
|
)
|
17,608,487
|
||||||||
Net loss for the year
|
—
|
(4,850,697
|
)
|
(4,850,697
|
)
|
|||||||
Balance, March 31, 2013
|
73,880,910
|
(61,123,120
|
)
|
12,757,790
|
||||||||
Net income for the period
|
—
|
4,404,927
|
4,404,927
|
|||||||||
Balance, July 28, 2013
|
73,880,910
|
(56,718,193
|
)
|
17,162,717
|
|
April 1, 2013 to
|
Year ended
|
||||||
|
July 28, 2013
|
March 31, 2013
|
||||||
Cash flows from operating activities:
|
|
|
||||||
Net income/(loss)
|
4,404,927
|
(4,850,697
|
)
|
|||||
Adjustments to reconcile net income/
(loss) to net cash provided by operating activities:
|
||||||||
Depreciation and amortization
|
3,955,309
|
12,024,829
|
||||||
Amortization of financing costs
|
15,437
|
48,307
|
||||||
Unrealized gain/(loss) on derivatives
|
(4,684,006
|
)
|
13,681
|
|||||
Changes in assets and liabilities:
|
||||||||
Trade receivables
|
(3,431,789
|
)
|
(735,261
|
)
|
||||
Prepaid expenses and other receivables
|
8,646
|
487,966
|
)
|
|||||
Due from related parties
|
853,214
|
(2,198,820
|
||||||
Inventories
|
415,631
|
(660,068
|
)
|
|||||
Trade accounts payable
|
759,262
|
153,322
|
||||||
Accrued expenses and other liabilities
|
(336,312
|
)
|
(384,265
|
)
|
||||
Due to related parties
|
2,710,151
|
4,755,938
|
||||||
Payment for drydocking costs
|
—
|
(399,149
|
)
|
|||||
Net cash from operating activities
|
4,670,470
|
8,255,783
|
||||||
Cash flows from investing activities:
|
||||||||
Payments for vessel improvements
|
(90,492
|
)
|
(469,929
|
)
|
||||
Net cash used in investing activities
|
(90,492
|
)
|
(469,929
|
)
|
||||
Cash flows from financing activities:
|
||||||||
Repayment of long
‑
term debt
|
(5,606,000
|
)
|
(8,784,500
|
)
|
||||
Net cash used in financing activities
|
(5,606,000
|
)
|
(8,784,500
|
)
|
||||
Net (decrease)/increase in cash and cash equivalents
|
(1,026,022
|
)
|
(998,646
|
)
|
||||
Cash and cash equivalents at the beginning of the period
|
1,041,644
|
2,040,290
|
||||||
Cash and cash equivalents at the end of the period
|
15,622
|
1,041,644
|
||||||
Supplemental disclosure of cash flow information
|
||||||||
Cash paid during the period for interest
|
1,002,958
|
2,472,386
|
1.
|
Basis of Presentation and General Information
|
Vessel owning Company
|
Date of
incorporation
|
Type of
vessel
(3)
|
Vessel's name
|
Built
|
CBM
(2)
|
|
|
Cepheus Transport Ltd. (Cepheus)
(1)
|
March 17, 2004
|
VLGC
|
Captain Nicholas ML
|
2008
|
82,000
|
||
Lyra Gas Transport Ltd (Lyra)
(1)
|
January 30, 2005
|
VLGC
|
Captain John NP
|
2007
|
82,000
|
||
Cetus Transport Ltd. (Cetus)
(1)
|
January 27, 2004
|
VLGC
|
Captain Markos NL
|
2006
|
82,000
|
||
Orion Tankers Limited (Orion)
(1)
|
October 26, 2005
|
PGC
|
Grendon
|
1996
|
5,000
|
(1)
|
Incorporated in Republic of Liberia.
|
|
(2)
|
CBM: Cubic meters, a standard measure for LPG tanker capacity.
|
|
(3)
|
Very Large Gas Carrier ("VLGC"), Pressurized Gas Carrier ("PGC")
|
|
% of total revenues
|
|||||||
Charterer
|
April 1, 2013
to July 28, 2013
|
Year ended March 31, 2013
|
||||||
Statoil Hydro ASA
|
49
|
53
|
||||||
Petredec Ltd.
|
18
|
19
|
||||||
E1Corp.
|
19
|
17
|
||||||
Astomos Energy Corporation
|
12
|
—
|
2. | Significant Accounting Policies |
(a)
|
Principles of combination:
The accompanying combined financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP") and include the accounts and operating results of the legal entities comprising the Owning Companies as discussed in Note 1, which were all under common management. The combined statements represent an aggregation of the U.S. GAAP financial information of the entities comprising the Owning Companies. All intercompany balances and transactions have been eliminated upon combination.
|
(b)
|
Use of estimates:
The preparation of the Predecessor combined financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.
|
(c)
|
Other comprehensive income/(loss):
The Company follows the accounting guidance relating to
Comprehensive Income
, which requires separate presentation of certain transactions that are recorded directly as components of stockholders' equity. The Company has no other comprehensive income/(loss) and accordingly, comprehensive income/(loss) equals net income/(loss) for the periods presented.
|
(d)
|
Foreign currency translation:
The functional currency of the Company is the U.S. Dollar. Each foreign currency transaction is measured and recorded in the functional currency using the exchange rate in effect at the date of the transaction. As of the balance sheet date, monetary assets and liabilities that are denominated in a currency other than the functional currency are adjusted to reflect the exchange rate at the balance sheet date and any gains or losses are included in the combined statement of operations.
|
(e)
|
Cash and cash equivalents:
The Company considers highly liquid investments such as time deposits and certificates of deposit with an original maturity of three months or less to be cash equivalents.
|
(f)
|
Trade receivables (net):
Trade receivables (net), reflect receivables from vessel charters, net of an allowance for doubtful accounts. At each balance sheet date, all potentially uncollectible accounts are assessed individually for purposes of determining the appropriate provision for doubtful accounts. No allowance for doubtful accounts was recorded for the periods presented.
|
(g)
|
Inventories:
Inventories consist of bunkers on board the vessels when vessels are unemployed or are operating under voyage charters and lubricants and stores on board the vessels. Inventories are stated at the lower of cost or market. Cost is determined by the first in, first out method.
|
(h)
|
Vessels:
Vessels are stated at cost, less accumulated depreciation. The cost of the vessels consists of the contract price, less discounts, plus any direct expenses incurred upon acquisition, including improvements, commission paid, delivery expenses and other expenditures to prepare the vessel for her initial voyage. The cost of vessels constructed includes financing costs incurred during the construction period. Subsequent expenditures for conversions and major improvements are also capitalized when they appreciably extend the life, increase the earning capacity or improve the efficiency or safety of the vessels. Repairs and maintenance are expensed as incurred.
|
(i)
|
Impairment of long
‑
lived assets:
The Company reviews their vessels "held and used" for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be recoverable. When the estimate of future undiscounted cash flows, excluding interest charges, expected to be generated by the use of the asset is less than its carrying amount, the asset is evaluated for an impairment loss. Measurement of the impairment loss is based on the fair value of the asset. In this respect, management regularly reviews the carrying amount of the vessels in connection with the estimated recoverable amount for each of the Company's vessels.
|
(j)
|
Vessel depreciation:
Depreciation is computed using the straight
‑
line method over the estimated useful life of the vessels, after considering the estimated salvage value. Each vessel's salvage value is equal to the product of its lightweight tonnage and estimated scrap rate, which is estimated to be $ 400 per lightweight ton. Management of the Owning Companies estimates the useful life of its vessels to be 20 years from the date of initial delivery from the shipyard for VLGC's and 25 years for PGC vessels. Secondhand vessels are depreciated from the date of their acquisition through their remaining estimated useful life.
|
|
(k)
|
Drydocking and special survey costs:
Drydocking and special survey costs are accounted under deferral method whereby actual costs incurred are deferred and are amortized on a straight
‑
line basis over the period through the date the next survey is scheduled to become due. We are required to drydock a vessel once every five years until it reaches 15 years of age, after which we are required to drydock the applicable vessel every two and one
‑
half years. Costs deferred are limited to actual costs incurred at the yard and parts used in the drydocking or special survey. Costs deferred include expenditures incurred relating to shipyard costs, hull preparation and painting, inspection of hull structure and mechanical components, steelworks, machinery works, and electrical works. If a survey is performed prior to the scheduled date, the remaining unamortized balances are immediately written off. Unamortized balances of vessels that are sold are written
‑
off and included in the calculation of the resulting gain or loss in the period of the vessel's sale. The amortization charge is presented within "Depreciation and amortization" in the combined statements of operations.
|
|
|
|
|
(l)
|
Financing costs:
Financing fees incurred for obtaining new loans and credit facilities are deferred and amortized to interest expense over the respective loan or credit facility using the effective interest rate method. Any unamortized balance of costs relating to loans repaid or refinanced is expensed in the period the repayment or refinancing is made, subject to the accounting guidance regarding debt extinguishment. Any unamortized balance of costs related to credit facilities repaid is expensed in the period. Any unamortized balance of costs relating to credit facilities refinanced are deferred and amortized over the term of the respective credit facility in the period the refinancing occurs, subject to the provisions of the accounting guidance relating to debt extinguishment. The unamortized financing costs are reflected in Deferred Charges in the accompanying combined balance sheets.
|
|
(m)
|
Revenue and expenses:
Revenue is recognized when an agreement exists, the vessel is made available to the charterer or services are provided, the charter hire is determinable and collection of the related revenue is reasonably assured.
|
(n)
|
Repairs and maintenance:
All repair and maintenance expenses, including underwater inspection costs are expensed in the period incurred. Such costs are included in Vessel operating expenses.
|
|
(o)
|
Segment reporting:
Each of the Owning Company's vessels serve the same type of customer, have similar operations and maintenance requirements, operate in the same regulatory environment, and are subject to similar economic characteristics. Based on this, the Company has determined that it operates in one reportable segment, the international transportation of liquid petroleum gas with its fleet of vessels. Furthermore, when the Company charters a vessel to a charterer, the charterer is free to trade the vessel worldwide and, as a result, the disclosure of geographic information is impracticable.
|
|
(p)
|
Derivative Instruments:
The Company enters into interest rate swap agreements to manage its exposure to fluctuations of interest rate risk associated with its borrowings. All derivatives are recognized in the combined financial statements at their fair value, as either a derivative asset or a liability. The fair value of the interest rate derivatives is based on a discounted cash flow analysis. When such derivatives do not qualify for hedge accounting, the Company recognizes their fair value changes in current period earnings.
|
|
(q)
|
Fair value of financial instruments:
|
Level 1:
|
Quoted market prices in active markets for identical assets or liabilities
|
Level 2:
|
Observable market based inputs or unobservable inputs that are corroborated by market data
|
Level 3:
|
Unobservable inputs that are not corroborated by market data.
|
(r)
|
Recent accounting pronouncements:
There are no recent accounting pronouncements the adoption of which would have a material effect on the Company's combined financial statements in the current period or expected to have an impact on future periods.
|
3. | Transactions with Related Parties |
|
April 1, 2013
to July 28, 2013
|
Year ended March 31, 2013
|
||||||
(i) Charter hire commissions , included in Voyage expenses—related party
|
198,360
|
505,926
|
||||||
(ii) Management fees
|
601,202
|
1,824,000
|
|
Vessel cost
|
Accumulated
depreciation
|
Net book
value
|
|||||||||
Balance, April 1, 2012
|
252,023,353
|
(53,743,681
|
)
|
198,279,672
|
||||||||
Vessel improvements
|
469,929
|
—
|
469,929
|
|||||||||
Depreciation
|
—
|
(11,671,879
|
)
|
(11,671,879
|
)
|
|||||||
Balance, March 31, 2013
|
252,493,282
|
(65,415,560
|
)
|
187,077,722
|
||||||||
Vessel improvements
|
90,492
|
—
|
90,492
|
|||||||||
Depreciation
|
—
|
(3,839,271
|
)
|
(3,839,271
|
)
|
|||||||
Balance, July 28, 2013
|
252,583,774
|
(69,254,831
|
)
|
183,328,943
|
5. | Deferred Charges, Net |
|
Financing
costs
|
Drydocking
costs
|
Total
|
|||||||||
April 1, 2012
|
310,662
|
1,302,458
|
1,613,120
|
|||||||||
Amortization
|
(48,307
|
)
|
(352,950
|
)
|
(401,257
|
)
|
||||||
March 31, 2013
|
262,355
|
949,508
|
1,211,863
|
|||||||||
Amortization
|
(15,437
|
)
|
(116,038
|
)
|
(131,475
|
)
|
||||||
July 28, 2013
|
246,918
|
833,470
|
1,080,388
|
6. | Owners' Capital |
Ship
‑
owning entity
|
|
Date of incorporation
|
Cetus Transport Ltd.
|
March 17, 2004
|
|
Lyra Gas Transport Ltd.
|
January 30, 2005
|
|
Cepheus Transport Ltd.
|
January 27, 2004
|
|
Orion Tankers Limited
|
October 26,2005
|
7. | Revenues |
|
April 1, 2013
to July 28, 2013
|
Year ended March 31, 2013
|
||||||
Time charter revenue
|
8,850,543
|
24,143,606
|
||||||
Voyage charter revenue
|
6,236,525
|
13,581,561
|
||||||
Other income
|
296,048
|
936,679
|
||||||
Total
|
15,383,116
|
38,661,846
|
8. | Voyage Expenses |
|
April 1, 2013
to July 28, 2013
|
Year ended March 31, 2013
|
||||||
Brokers commission
|
396,720
|
1,025,761
|
||||||
Bunkers
|
2,755,445
|
6,678,660
|
||||||
Port charges and other related expenses
|
391,091
|
746,574
|
||||||
Security cost
|
206,940
|
582,112
|
||||||
War risk insurances
|
26,673
|
111,626
|
||||||
Other voyage expenses
|
45,363
|
112,450
|
||||||
Total voyage expenses
|
3,822,232
|
9,257,183
|
|
April 1, 2013
to July 28, 2013
|
Year ended March 31, 2013
|
||||||
Crew wages and related costs
|
2,519,315
|
7,932,836
|
||||||
Spares and stores
|
1,284,161
|
1,502,111
|
||||||
Lubricants
|
176,502
|
686,375
|
||||||
Insurance
|
298,249
|
942,847
|
||||||
Repairs and maintenance costs
|
279,921
|
848,576
|
||||||
Miscellaneous expenses
|
80,577
|
126,181
|
||||||
Total
|
4,638,725
|
12,038,926
|
10. | Interest and Finance Cost |
11. | Income Taxes |
12. | Commitments and Contingencies |
13. | Derivative Instruments |
Derivatives not designated as hedging instruments
|
Location of gain/(loss) recognized
|
April 1, 2013
to July 28, 2013 (Unaudited)
|
Year ended
March 31, 2013
|
||||||
Interest Rate Swap—Change in fair value
|
Gain/(loss) on derivatives, net
|
$
|
4,684,007
|
$
|
(13,680
|
)
|
|||
Interest Rate Swap—Realized loss
|
Gain/(loss) on derivatives, net
|
(1,853,802
|
)
|
(5,574,799
|
)
|
||||
Loss on derivatives—net
|
$
|
2,830,205
|
$
|
(5,588,479
|
)
|
14. | Financial Instruments |
(a)
|
Interest rate risk:
The Company's long
‑
term bank loans are based on LIBOR and hence the Company is exposed to movements in LIBOR. The Company entered into interest rate swap agreements, discussed in Note 13 , in order to hedge its variable interest rate exposure.
|
(b)
|
Concentration of credit risk:
Financial instruments, which potentially subject the Company to significant concentrations of credit risk, consist principally of trade accounts receivable, amounts due from related parties, cash and cash equivalents. The Company limits its credit risk with accounts receivable by performing ongoing credit evaluations of its customers' financial condition and generally does not require collateral for its trade accounts receivable. The Company places its cash and cash equivalents, with high credit quality financial institutions.
|
(c)
|
Fair value:
The carrying values of trade accounts receivable, amounts due from related parties, cash and cash equivalents, accounts payable, amounts due to related parties and accrued liabilities are reasonable estimates of their fair value due to the short
‑
term nature of these financial instruments. The fair value of long
‑
term bank loans approximate the recorded value, due to their variable interest rate, being the LIBOR. LIBOR rates are observable at commonly quoted intervals for the full terms of the loans and hence long
‑
term bank loans are considered Level 2 items in accordance with the fair value hierarchy.
|
15. | Subsequent Events |
·
|
Cepheus, Lyra and Cetus sold the
Captain Nicholas ML
, the
Captain John NP
and the
Captain Markos NL
to CMNL LPG Transport LLC, CJNP LPG Transport LLC and CNML LPG Transport LLC (being newly created entities of the same shareholders), respectively, which also assumed the related outstanding bank debt and interest rate swaps related to each vessel.
|
|
·
|
100% interest in CMNL LPG Transport LLC, CJNP LPG Transport LLC and CNML LPG Transport LLC was contributed to Dorian LPG Ltd. in exchange for equity in Dorian LPG Ltd.
|
|
·
|
The Grendon was sold to Grendon Tanker LLC, a wholly-owned subsidiary of Dorian LPG Ltd.
|
Exhibit 10.25
|
||||
Private & Confidential
|
EXECUTION VERSION
|
|||
Dated March 23, 2015
|
||||
DORIAN LPG FINANCE LLC
as Borrower
THE ENTITIES
listed in Schedule 1, Part B
as Upstream Guarantors
DORIAN LPG LTD.
as Facility Guarantor
ABN AMRO CAPITAL USA LLC
CITIBANK N.A., LONDON BRANCH
and
THE OTHER BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part D
as Bookrunners
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part E
as Mandated Lead Arrangers
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part F
as Commercial Lenders
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part G
as KEXIM Lenders
THE EXPORT-IMPORT BANK OF KOREA
as KEXIM
THE BANKS AND FINANCIAL INSTITUTIONS
listed in Schedule 1, Part I
as K-sure Lenders
THE BANKS AND FINANCIAL INSTITUTIONS
Listed in Schedule 1, Part J
as Swap Banks
ABN AMRO CAPITAL USA LLC
as Global Coordinator, Administrative Agent and Security Agent
CITIBANK N.A., LONDON BRANCH
or any of its holding companies, subsidiaries or affiliates
as ECA coordinator
CITIBANK N.A., LONDON BRANCH
as ECA Agent
|
||||
FACILITY AGREEMENT
for a Loan of up to $758,105,296 |
||||
|
20
|
General undertakings
|
76
|
21
|
Dealings with Ship
|
80
|
22
|
Condition and operation of Ship
|
82
|
23
|
Insurance
|
86
|
24
|
Minimum security value
|
91
|
25
|
Bank accounts
|
94
|
26
|
Business restrictions
|
96
|
27
|
Hedging Contracts
|
100
|
28
|
Events of Default
|
101
|
29
|
Position of Swap Bank
|
106
|
SECTION 8 -
|
CHANGES TO PARTIES
|
108
|
30
|
Changes to the Lenders
|
108
|
31
|
Changes to the Obligors
|
112
|
SECTION 9 -
|
THE FINANCE PARTIES
|
113
|
32
|
Roles of Administrative Agent, Security Agent, Mandated Lead Arrangers and ECA Agent
|
113
|
33
|
ECA Specific Provisions
|
130
|
34
|
Conduct of business by the Finance Parties
|
140
|
35
|
Sharing among the Finance Parties
|
141
|
SECTION 10 -
|
ADMINISTRATION
|
144
|
36
|
Payment mechanics
|
144
|
37
|
Notices
|
147
|
38
|
Calculations and certificates
|
149
|
39
|
Partial invalidity
|
149
|
40
|
Remedies and waivers
|
149
|
41
|
Amendments and Waivers
|
149
|
42
|
Counterparts
|
153
|
SECTION 11 -
|
GOVERNING LAW AND ENFORCEMENT
|
150
|
43
|
Governing law
|
154
|
44
|
Enforcement
|
154
|
45
|
Patriot Act
|
155
|
46
|
Pledge to Federal Reserve Banks
|
155
|
Schedule 1
|
The original parties
|
156
|
Schedule 2
|
Ship information
|
177
|
Schedule 3
|
Conditions precedent
|
186
|
Schedule 4
|
Utilization Request
|
194
|
Schedule 5
|
Form of Classification Letter
|
196
|
Schedule 6
|
Form of Subordination Letter
|
200
|
Schedule 7
|
Form of Substitution Certificate
|
202
|
Schedule 8
|
Form of Increase Confirmation
|
206
|
Schedule 9
|
Compliance Certificate
|
208
|
Schedule 10
|
List of Acceptable Charterers
|
210
|
Schedule 11
|
Tranches and Commitments
|
211
|
Schedule 12
|
Margin Certificate
|
212
|
(1) | DORIAN LPG FINANCE LLC , as borrower (the Borrower ); |
(2) | THE ENTITIES listed in Schedule 1 ( The original parties) Part B, as owners and upstream guarantors (the Upstream Guarantors and each an Upstream Guarantor ); |
(3) | DORIAN LPG LTD. , as facility guarantor (the Facility Guarantor and collectively with the Upstream Guarantors, the Guarantors and each a Guarantor ); |
(4) | ABN AMRO CAPITAL USA LLC , CITIBANK N.A., LONDON BRANCH, ING BANK N.V., LONDON BRANCH and DVB BANK SE , as bookrunners (the Bookrunners and each a Bookrunner ); |
(5) | ABN AMRO CAPITAL USA LLC , CITIBANK N.A., LONDON BRANCH, ING BANK N.V., LONDON BRANCH, DVB BANK SE, BANCO SANTANDER, S.A. and THE EXPORT-IMPORT BANK OF KOREA , as mandated lead arrangers (the Mandated Lead Arrangers and each a Mandated Lead Arranger ); |
(6) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 ( The original parties ) Part F, as commercial lenders (the Commercial Lenders and each a Commercial Lender ); |
(7) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 ( The original parties ) Part G, as KEXIM lenders (the KEXIM Lenders and each a KEXIM Lender ); |
(8) | THE EXPORT-IMPORT BANK OF KOREA , as KEXIM ( KEXIM ); |
(9) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 ( The original parties ) Part I, as K-sure lenders (the K-sure Lenders and each a K-sure Lender , and collectively with the Commercial Lenders, the KEXIM Lenders and KEXIM, the Original Lenders and each an Original Lender ); |
(10) | THE BANKS AND FINANCIAL INSTITUTIONS listed in Schedule 1 ( The original parties ) Part J, as swap banks (the Swap Banks and each a Swap Bank ); |
(11) | ABN AMRO CAPITAL USA LLC , as global coordinator (the Global Coordinator ), administrative agent (the Administrative Agent ) and security agent for and on behalf of the Finance Parties (the Security Agent ); |
(12) | CITIBANK N.A., LONDON BRANCH, or any of its holding companies, subsidiaries or affiliates, as ECA coordinator (the ECA Coordinator ); and |
(13) | CITIBANK N.A., LONDON BRANCH, as ECA agent (post-closing) (the ECA Agent ), |
1 | Definitions and interpretation |
1.1 | Definitions |
(a) | the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" |
(b) | the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and |
(c) | any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III". |
(i) | in respect of the Borrower, a Borrower Change of Control; |
(ii) | in respect of an Upstream Guarantor, an Upstream Guarantor Change of Control; |
(iii) | in respect of the Facility Guarantor, |
(A) | a "person" or "group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than Seacor Holdings LLC, Dorian Holdings LLC or any individual director or individual officer who is holder of 5% or more of the Facility Guarantor's equity interests as of the Closing Date, becomes the ultimate "beneficial owner" (as defined in Rule 13(d)-3 under the Exchange Act and including by reason of any change in the ultimate "beneficial ownership" of the Equity Interests of the Facility Guarantor) of more than 33% of the total voting |
(B) | individuals who at the beginning of any period of two (2) consecutive calendar years constituted the Board of Directors or equivalent governing body of the Facility Guarantor (together with any new directors (or equivalent) whose election by such Board of Directors or equivalent governing body or whose nomination for election was approved by a vote of at least two-thirds of the members of such Board of Directors or equivalent governing body then still in office who either were members of such Board of Directors or equivalent governing body at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason (other than as a result of compliance with NYSE rules on independent directors) to constitute at least 50% of the members of such Board of Directors or equivalent governing body then in office; or |
(iv) | Mr. John Hadjipateras ceases to be a director of the Facility Guarantor. |
(a) | in relation to an Original Lender, the amount set opposite its name under the relevant tranche heading in Schedule 11 ( Tranches and Commitments ) and the amount of any other Commitment assigned to it under this Agreement; and |
(b) | in relation to any other Lender, the amount of any Commitment assigned to it under this Agreement |
(a) | which has failed to make its participation in an Advance available (or has notified the Administrative Agent or the Borrower (which has notified the Administrative Agent) that it will |
(b) | which has otherwise rescinded or repudiated a Finance Document; or |
(c) | with respect to which an Insolvency Event has occurred and is continuing, |
(i) | its failure to pay is caused by: |
(A) | administrative or technical error; or |
(B) | a Payment Disruption Event; and, |
(ii) | the Lender is disputing in good faith whether it is contractually obliged to make the payment in question. |
(a) | a Total Loss of a Mortgaged Ship, the applicable Total Loss Repayment Date; and |
(b) | a sale of a Mortgaged Ship by the relevant Upstream Guarantor, the date upon which such sale is completed by the transfer of title to the purchaser in exchange for payment of all or part of the relevant purchase price. |
(a) | except to the extent that they fall within paragraph (b): |
(i) | all freight, hire and passage moneys; |
(ii) | compensation payable to the Upstream Guarantor owning that Ship or the Security Agent in the event of requisition of that Ship for hire; |
(iii) | remuneration for salvage and towage services; |
(iv) | demurrage and detention moneys; |
(v) | damages for breach (or payments for variation or termination) of any charterparty or other contract for the employment of that Ship; and |
(vi) | all moneys which are at any time payable under Insurances in respect of loss of hire; and |
(b) | if and whenever that Ship is employed on terms whereby any moneys falling within paragraphs (a)(i) to (vi) are pooled or shared with any other person, that proportion of the net receipts of the relevant pooling or sharing arrangement which is attributable to that Ship. |
(a) | enforcement, clean-up, removal or other governmental or regulatory action or orders or claims instituted or made pursuant to any Environmental Laws or resulting from a Spill; or |
(b) | any claim made by any other person relating to a Spill. |
(a) | any Spill from any Ship; |
(b) | any incident in which there is a Spill and which involves a collision or allision between a Ship and another vessel or object, or some other incident of navigation or operation, in any case, in connection with which such Ship is actually or potentially liable to be arrested, attached, detained or injuncted, or where such Ship, any Obligor or any operator or manager of the Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or |
(c) | any other incident in which there is a Spill otherwise than from a Ship and in connection with which such Ship is actually or potentially liable to be arrested, or where such Ship, any Obligor or any operator or manager of such Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action. |
(a) | any and all shares and other equity interests (including common stock, preferred stock, limited liability company interests and partnership interests) in such person; and |
(b) | all rights to purchase, warrants or options or convertible debt (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) such shares or other interests in such person. |
(a) | a reportable event described in Section 4043(b) of ERISA (or, unless the 30-day notice requirement has been duly waived under the applicable regulations, Section 4043(c) of ERISA) with respect to a Title IV Plan; |
(b) | the withdrawal of any ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; |
(c) | the complete or partial withdrawal of any ERISA Affiliate from any Multiemployer Plan; |
(d) | with respect to any Multiemployer Plan, the filing of a notice of reorganization, insolvency or termination (or treatment of a plan amendment as termination) under Section 4041A of ERISA; |
(e) | the filing of a notice of intent to terminate a Title IV Plan (or treatment of a plan amendment as termination) under Section 4041 of ERISA; |
(f) | the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by any Obligor; |
(g) | the failure to make any required contribution to any Title IV Plan or Multiemployer Plan when due, which is not corrected within 30 days after the due date; |
(h) | the imposition of a lien under Section 412 or 430(k) of the Code or Section 303 or 4068 of ERISA on any property (or rights to property, whether real or personal) of any ERISA Affiliate; |
(i) | the revocation by the IRS of the qualified or tax-exempt status of a Benefit Plan or any trust thereunder intended to qualify for tax exempt status under Section 401 or 501 of the Code or other requirements of law; |
(j) | a Title IV plan is in "at risk" status within the meaning of Code Section 430(i); |
(k) | a Multiemployer Plan is in "endangered status" or "critical status" within the meaning of Section 432(b) of the Code; and |
(l) | any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of any material liability upon any ERISA Affiliate under Title IV of ERISA. |
(a) | in respect of a Lender, the office notified by that Lender to the Administrative Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five (5) Business Days' written notice) as the office through which it will perform its obligations under this Agreement; and |
(b) | in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes. |
(a) | in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), July 1, 2014; |
(b) | in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), January 1, 2017; or |
(c) | in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within paragraphs (a) or (b) above, January 1, 2017, |
(a) | with respect to the Commercial Bank Tranche, the date falling on the seventh (7 th ) anniversary of the Closing Date; |
(b) | with respect to the KEXIM Guaranteed Tranche applicable to each Advance, the date falling on the twelfth anniversary of the Delivery Date of such Ship; |
(c) | with respect to the KEXIM Funded Tranche applicable to each Advance, the date falling on the twelfth anniversary of the Delivery Date of such Ship; and |
(d) | with respect to the K-sure Tranche applicable to each Advance, the date falling on the twelfth anniversary of the Delivery Date of such Ship. |
(a) | moneys borrowed (including principal, interest and other sums related to such principal and interest) and debit balances at banks or other financial institutions; |
(b) | any amount raised by acceptance under any acceptance credit facility or under any acceptance credit or other equivalent facility; |
(c) | any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; |
(d) | the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease; |
(e) | receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); |
(f) | any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the negative marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account), it being understood and agreed that any positive marked to market value shall reduce the Financial Indebtedness accordingly; |
(g) | any counter-indemnity obligation in respect of a guaranty, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; |
(h) | any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 180 days after the date of supply; |
(i) | any amount raised under any other transaction (including any forward sale or purchase sale and sale back, sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and |
(j) | the amount of any liability in respect of any guaranty or indemnity for any of the items referred to in paragraphs (a) to (i) above. |
(a) | directly or indirectly controls a Subsidiary; or |
(b) | is entitled to receive more than 50% of the dividends or distributions on the Equity Interests of such Subsidiary. |
(a) | each Finance Party and any attorney, agent or other person appointed by them under the Finance Documents and K-sure; |
(b) | each Affiliate of those persons; and |
(c) | any directors, officers, employees, representatives or agents of any of the above persons. |
(a) | such person shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or |
(b) | any proceeding shall be instituted by or against such person seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property, and solely in case of an involuntary proceeding: |
(i) | such proceeding shall remain undismissed or unstayed for a period of 45 days; or |
(ii) | any of the actions sought in such involuntary proceeding (including, without limitation, the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur. |
(a) | all policies and contracts of insurance; and |
(b) | all entries in a protection and indemnity or war risks or other mutual insurance association, |
(a) | the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period of that Loan or relevant part of it; and |
(b) | the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period of that Loan or relevant part of it, |
(a) | the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally (including without limitation all laws relating to fraudulent transfers) and (ii) possible judicial action giving effect to governmental actions or foreign laws affecting creditors' rights; |
(b) | the effect of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law); and |
(c) | any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions. |
(a) | any Original Lender; and |
(b) | any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 2.2 ( Increase ), Clause 30 ( Changes to the Lenders ) or Clause 41.8 ( Replacement of a Defaulting Lender ), |
(a) | the applicable Screen Rate; |
(b) | if no Screen Rate is available for the relevant currency or the relevant Interest Period of that Loan or relevant part of it the Interpolated Screen Rate for that Loan or relevant part of it; or |
(c) | if: |
(i) | no Screen Rate is available for the relevant currency of that Loan or relevant part of it; or |
(ii) | no Screen Rate is available for the relevant Interest Period of that Loan or relevant part of it and it is not possible to calculate an Interpolated Screen Rate for that Loan or relevant part of it, |
(a) | in relation to the Commercial Tranche: 2.75% per annum. However, the applicable Margin of the Commercial Tranche will be determined on a quarterly basis starting from the Closing Date. If the following conditions are applicable, the applicable Margin for any quarter in respect of the Commercial Tranche will be as follows: |
(i) | if the average remaining tenor on the Acceptable Charters is greater than one (1) year; |
(ii) | if within ten (10) Business Days before the first day of the quarter, the Facility Guarantor delivers to the Administrative Agent a certificate identifying the number of Ships employed on Acceptable Charters in the form specified in Schedule 12 ( Margin Certificate ); and |
(iii) | (1) 50% or more but less than 75% of the Ships are employed on Acceptable Charters, the applicable Margin shall be 2.50% per annum; or |
(2) | 75% or more of Ships are employed on Acceptable Charters, the applicable Margin shall be 2.25% per annum. |
(b) | in relation to the KEXIM Guaranteed Tranche: 1.40% per annum. |
(c) | in relation to the KEXIM Funded Tranche: 2.45% per annum. |
(d) | in relation to the K-sure Tranche: 1.50% per annum. |
(a) | any tax on the net income of a Finance Party (but not a tax on gross income or individual items of income), whether collected by deduction or withholding or otherwise, which is levied by a taxing jurisdiction which: |
(i) | is located in the country under whose laws such entity is formed (or in the case of a natural person is a country of which such person is a citizen); or |
(ii) | with respect to any Lender, is located in the country of its Lending Office; or |
(iii) | with respect to any Finance Party other than a Lender, is located in the country from which such party has originated its participation in this transaction; and |
(b) | with respect to any FATCA Non-Exempt Party, any FATCA Deduction made on account of a payment to such FATCA Non-Exempt Party; |
(a) | the Mortgages; |
(b) | the General Assignments; |
(c) | the Share Security; |
(d) | any Charter Assignment; |
(e) | any Manager's Undertakings and Subordinations; |
(f) | the Account Security; |
(g) | the Guaranties; and |
(h) | the Hedging Contract Security. |
(a) | a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or |
(b) | the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party: |
(i) | from performing its payment obligations under the Finance Documents; or |
(ii) | from communicating with other Parties in accordance with the terms of the Finance Documents, |
(a) | any ship repairer's or outfitter's possessory lien in respect of such Mortgaged Ship for an amount not exceeding the Major Casualty Amount; |
(b) | any lien on such Mortgaged Ship for master's, officer's or crew's wages outstanding in accordance with usual maritime practice; |
(c) | any lien for master's disbursements incurred in the ordinary course of trading, provided such liens do not secure amounts more than 30 days overdue (unless the amount is being contested by the Obligors in good faith by appropriate steps); |
(d) | any lien on such Mortgaged Ship for collision or salvage; |
(e) | liens in the aggregate amount of $1,000,000 or any other greater amount approved by all the Lenders, in favor of suppliers of necessaries or other similar liens arising in the ordinary course of its trading (including, without limitation, any liens incurred in connection with regular dry docking), accrued for not more than ninety (90) days (unless any such lien is being contested in good faith and by appropriate proceedings or other acts and the relevant Upstream Guarantor shall have set aside on its books adequate reserves in accordance with GAAP with respect to such lien and so long as such deferment in payment shall not subject its Ship to forfeiture or loss); |
(f) | liens in the aggregate amount of $1,000,000 or any other amount approved by all the Lenders for loss, damage or expense which are not fully covered by Insurance, subject to applicable deductibles satisfactory to the Administrative Agent, or in respect of which a bond or other security has been posted by or on behalf of the relevant Upstream Guarantor with the appropriate court or other tribunal to prevent the arrest or secure the release of the Ship from arrest; |
(g) | liens for taxes or assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate steps and in respect of which the Upstream Guarantor shall have set aside on its books adequate reserves in accordance with |
(h) | any other lien arising by operation of law or otherwise in the ordinary course of operation, repair or maintenance of a Mortgaged Ship that does not subject its Ship to forfeiture or loss; |
(i) | pledges of certificates of deposit or other cash collateral securing any Obligor's reimbursement obligations in connection with letters of credit now or hereafter issued for the account of such Obligor in connection with the establishment of the financial responsibility of such Obligor under 33 C.F.R. Part 130 or 46 C.F.R. Part 540, as the case may be, as the same may be amended or replaced; and |
(j) | Security Interests for loss, damage or expense which are fully covered by insurance, subject to applicable deductibles satisfactory to the Administrative Agent. |
(a) | granted by the Finance Documents; |
(b) | a Permitted Maritime Lien; or |
(c) | is approved by the Required Lenders. |
(a) | the jurisdiction under the laws of which the company is incorporated or formed; |
(b) | a jurisdiction in which the company has its principal place of business or in which the company's central management and control is or has recently been exercised; |
(c) | a jurisdiction in which the overall net income of the company is subject to corporation tax, income tax or any similar tax; |
(d) | a jurisdiction in which assets of the company (other than securities issued by, or loans to, related companies) having a substantial value are situated, in which the company maintains a branch or permanent place of business, or in which a Security Interest created by the company must or should be registered in order to ensure its validity or priority; or |
(e) | a jurisdiction the courts of which have jurisdiction to make a winding up, administration or similar order in relation to the company whether as a main or territorial or ancillary proceedings or which would have such jurisdiction if their assistance were requested by the courts of a country referred to in paragraphs (a) or (b) above. |
(a) | its jurisdiction of incorporation or formation; |
(b) | any jurisdiction where any Collateral owned by it is situated; |
(c) | any jurisdiction where it conducts its business; and |
(d) | any jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it. |
(a) | the First Repayment Date; |
(b) | each of the dates falling at three (3) monthly intervals thereafter up to, but not including, the Final Repayment Date; and |
(c) | the Final Repayment Date. |
(a) | listed on, or owned or controlled by a person listed on any Sanctions List; |
(b) | located in, incorporated under the laws of, or owned or controlled by, or acting on behalf of, a person located in or organized under the laws of a country or territory that is the target of country-wide Sanctions (including, at the date of this Agreement, Cuba, Burma/Myanmar, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine); or |
(c) | otherwise a target of Sanctions. |
(a) | the United States; |
(b) | the United Nations; |
(c) | the European Union ("EU") or any of its Member States; |
(d) | any country to which any Obligor or Lender, by reason of its participation in this transaction, is bound; or |
(e) | the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury ( OFAC ), the United States Department of State, and Her Majesty's Treasury ( HMT ) (together Sanctions Authorities ). |
(a) | the Original Security Documents; |
(b) | any other document as may after the date of this Agreement be executed to guaranty and/or secure any amounts owing to the Finance Parties under this Agreement or any other Finance Document. |
(a) | directly or indirectly controlled by such person; or |
(b) | of whose dividends or distributions on the Equity Interests of such person is entitled to receive more than 50%. |
(a) | actual, constructive, compromised, agreed or arranged total loss; or |
(b) | requisition for title, confiscation or other compulsory acquisition by a government entity; or |
(c) | hijacking, piracy, theft, condemnation, capture, seizure, arrest or detention for more than 30 days. |
(a) | in the case of an actual total loss, the date it happened or, if such date is not known, the date on which the Ship was last reported; |
(b) | in the case of a constructive, compromised, agreed or arranged total loss, the earliest of: |
(i) | the date notice of abandonment of the Ship is given to its insurers; or |
(ii) | if the insurers do not admit such a claim, the date later determined by a competent court of law to have been the date on which the total loss happened; or |
(iii) | the date upon which a binding agreement as to such constructive, compromised, agreed or arranged total loss has been entered into by the Ship's insurers; |
(c) | in the case of a requisition for title, confiscation or compulsory acquisition, the date it happened; and |
(d) | in the case of hijacking, piracy, theft, condemnation, capture, seizure, arrest or detention, the date 30 days after the date upon which it happened. |
(a) | the date 180 days after its Total Loss Date or at a later date as the Borrower may agree with the Administrative Agent (acting with the instructions of the Required Lenders); and |
(b) | the date upon which insurance proceeds or Requisition Compensation for such Total Loss are paid by insurers or the relevant government entity. |
(a) | each of the Finance Documents; |
(b) | each of the Shipbuilding Contracts; and |
(c) | each of the Charter Documents. |
(a) | all moneys duly received by the Security Agent under or in respect of the Finance Documents; |
(b) | any portion of the balance on any Account held by or subject to a Security Interest in favor of the Security Agent at any time; |
(c) | the Security Interests, guaranties, security, powers and rights granted to the Security Agent under and pursuant to the Finance Documents; |
(d) | all assets paid or transferred to or vested in the Security Agent or its agent or received or recovered by the Security Agent or its agent in connection with any of the Finance Documents whether from any Obligor or any other person; and |
(e) | all or any part of any rights, benefits, interests and other assets at any time representing or deriving from any of the above, including all income and other sums at any time received or receivable by the Security Agent or its agent in respect of the same (or any part thereof). |
1.2 | Construction |
(a) | Unless a contrary indication appears, any reference in any of the Finance Documents to: |
(i) | Sections, clauses and Schedules are to be construed as references to the Sections and clauses of, and the Schedules to, the relevant Finance Document and references to a Finance Document include its Schedules; |
(ii) | a Finance Document or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as it may from time to time be amended, restated, supplemented, novated, assigned and assumed or replaced, however fundamentally; |
(iii) | words importing the plural shall include the singular and vice versa; |
(iv) | any person includes its successors in title, permitted assignees or transferees; |
(v) | the knowledge, awareness and/or beliefs (and similar expressions) of any Obligor shall be construed so as to mean the actual knowledge, awareness and beliefs of the director, member, manager or officers of such Obligor, after having made reasonable enquiry; |
(vi) | assets includes present and future properties, revenues and rights of every description; |
(vii) | an authorization means any authorization, consent, concession, approval, resolution, license, exemption, filing, notarization or registration; |
(viii) | charter commitment means, in relation to a Ship, any charter or contract for the use, employment or operation of that Ship or the carriage of people and/or cargo or the provision of services by or from it and includes any agreement for pooling or sharing income derived from any such charter or contract; |
(ix) | the term disposal or dispose means a sale, transfer or other disposal (including by way of lease or loan but not including by way of loan of money) by a person of all or part of its assets, whether by one transaction or a series of transactions and whether at the same time or over a period of time, but not the creation of a Security Interest; |
(x) | USD / dollar / $ means the lawful currency of the United States of America; |
(xi) | a government entity means any government, state or agency of a country or state; |
(xii) | a guaranty means any guaranty, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness; |
(xiii) | 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; |
(xiv) | month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month or the calendar month in which it is to end, except that: |
(A) | if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that month (if there is one) or on the immediately preceding Business Day (if there is not); and |
(B) | if there is no numerically corresponding day in that month, that period shall end on the last Business Day in that month |
(xv) | an obligation means any duty, obligation or liability of any kind; |
(xvi) | something being in the ordinary course of business of a person means something that is in the ordinary course of that person's current day-to-day operational business (and not merely anything which that person is entitled to do under its Constitutional Documents); |
(xvii) | a person includes any individual, firm, company, corporation, limited liability company, government entity or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality); |
(xviii) | a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organization and includes (without limitation) any Basel II or Basel III regulation; |
(xix) | right means any right, privilege, power or remedy, any proprietary interest in any asset and any other interest or remedy of any kind, whether actual or contingent, present or future, arising under contract or law, or in equity; |
(xx) | trustee , fiduciary and fiduciary duty has in each case the meaning given to such term under applicable law; |
(xxi) | (i) the winding up , dissolution , or administration of a person or (ii) a receiver or trustee or administrative receiver or administrator in the context of insolvency proceedings or security enforcement actions in respect of a person shall be construed so as to include any equivalent or analogous proceedings or any equivalent and analogous person or appointee (respectively) under the law of the jurisdiction in which such person is established or incorporated or any jurisdiction in which such person carries on business including (in respect of proceedings) the seeking or occurrences of liquidation, winding-up, reorganization, dissolution, administration, arrangement, adjustment, protection or relief of debtors; |
(xxii) | a time of day is a reference to Eastern Standard Time (EST) or Eastern Daylight Savings Time (EDST), as applicable, unless otherwise specified; |
(xxiii) | know your customer requirements are identification checks that a Finance Party (acting for itself or on behalf of a prospective new Lender) requests in order to meet its obligations under any anti-money laundering laws and regulations and anti-corruption laws and regulations to identify a person who is (or is to become) its customer; and |
(xxiv) | a provision of law is a reference to that provision as amended or re-enacted. |
(b) | Where in this Agreement a provision includes a monetary reference level in one currency, unless a contrary indication appears, such reference level is intended to apply equally to its equivalent in other currencies as of the relevant time for the purposes of applying such reference level to any other currencies. |
(c) | Section, clause and Schedule headings are for ease of reference only. |
(d) | A Default (other than an 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 | Third party rights |
(a) | Except for a provision expressed to be in favor of K- s ure and the rights expressed to be for its benefit or exercisable by it under a Finance Document or unless expressly provided to the contrary in a Finance Document for the benefit of a Finance Party or another Indemnified Person, a person who is not a party to a Finance Document has no right to enforce or to enjoy the benefit of any term of the relevant Finance Document. |
(b) | Any Finance Document may be rescinded or varied by the parties to it without the consent of any person who is not a party to it (unless otherwise provided by this Agreement). |
(c) | An Indemnified Person who is not a party to a Finance Document may only enforce its rights under that Finance Document through a Finance Party and if and to the extent and in such manner as the Finance Party may determine. |
1.4 | Finance Documents |
1.5 | Conflict of documents |
2 | The Facility |
2.1 | The Facility |
2.2 | Increase |
(a) | The Borrower may by giving prior notice to the Administrative Agent by no later than the date falling three (3) Business Days after the effective date of a cancellation of: |
(i) | the undrawn Commitment of a Defaulting Lender in accordance with Clause 7.9(d) (Right of replacement or cancellation and prepayment in relation to a single Lender); or |
(ii) | the Commitment of a Lender in accordance with: |
(A) | Clause 7.1 ( Illegality ); or |
(B) | Clause 7.9 ( Right of replacement or cancellation and prepayment in relation to a single Lender ), |
(1) | the increased Commitments will be assumed by one or more Lenders, at such Lender's sole discretion (each an Increase Lender ), each of which confirms in writing (whether in the relevant Increase Confirmation or otherwise) its willingness to assume and does assume all the obligations corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender; |
(2) | the Borrower and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Borrower and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(3) | each Increase Lender shall become a Party as a "Lender" and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender; |
(4) | the Commitments of the other Lenders shall continue in full force and effect; and |
(5) | any increase in the Commitments shall take effect on the date specified by the Borrower in the notice referred to above or any later date on which the |
(b) | An increase in the Commitments will only be effective on: |
(i) | the execution by the Administrative Agent of an Increase Confirmation from the relevant Increase Lender; and |
(ii) | in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the Administrative Agent being satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender. The Administrative Agent shall promptly notify the Borrower and the Increase Lender upon being so satisfied. |
(c) | Each of the other Finance Parties and the Borrower hereby appoints the Administrative Agent as its agent to execute on its behalf any Increase Confirmation delivered to the Administrative Agent in accordance with Clauses 2.2(a) and 2.2(b) (Increase). |
(d) | Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Administrative 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 increase becomes effective. |
(e) | The Borrower may pay to the Increase Lender a fee in the amount and at the times agreed between the Borrower and the Increase Lender in a letter between the Borrower and the Increase Lender setting out that fee. A reference in this Agreement to a Fee Letter shall include any letter referred to in this Clause 2.2(e). |
(f) | The Increase Lender shall, on the date upon which the increase takes effect, pay to the Administrative Agent (for its own account) a fee in an amount equal to the fee which would be payable under Clause 30.2 (Substitution) if the increase was an assignment and assumption pursuant to Clause 30.2 (Substitution) and if the Increase Lender was a Substitute. |
2.3 | Finance Parties' rights and obligations |
(a) | The obligations of each Finance Party under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. |
(b) | The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt. |
(c) | A Finance Party may, except as otherwise stated in the Finance Documents (including Clause 32.25 ( All enforcement action through the Security Agent )) and Clause 34.2 ( Finance Parties acting together ), separately enforce its rights under the Finance Documents. |
2.4 | Obligors' rights and obligations |
(a) | The obligations of each Obligor under this Agreement are joint and several. Failure by an Obligor to perform its obligations under this Agreement shall constitute a failure by all of the Obligors. |
(b) | Each Obligor irrevocably and unconditionally jointly and severally with each other Obligor: |
(i) | agrees that it is responsible for the performance of the obligations of each other Obligor under this Agreement; |
(ii) | acknowledges and agrees that it is a principal and original debtor in respect of all amounts due from the Obligors under this Agreement; and |
(iii) | agrees with each Finance Party that, if any obligation of another Obligor under this Agreement is or becomes unenforceable, invalid or illegal for any reason it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any and all Losses it incurs as a result of another Obligor not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by that other Obligor under this Agreement. The amount payable under this indemnity shall be equal to the amount which that Finance Party would otherwise have been entitled to recover. |
(c) | The obligations of the Obligors under the Finance Documents shall continue until all amounts which may be or become payable by each Obligor under or in connection with the Finance Documents have been irrevocably and unconditionally paid or discharged in full, regardless of any intermediate payment or discharge in whole or in part. |
(d) | If any payment by any Obligor or any discharge given by a Finance Party (whether in respect of the obligations of such Obligor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: |
(i) | the liability of such Obligor under the Finance Documents shall continue as if the payment, release, avoidance or reduction had not occurred; and |
(ii) | each Finance Party shall be entitled to recover the value or amount of that security or payment from such Obligor, as if the payment, release, avoidance or reduction had not occurred. |
(e) | The obligations of the Obligors under the Finance Documents shall not be affected by an act, omission, matter or thing which, but for this clause (whether or not known to it or any Finance Party), would reduce, release or prejudice any of its obligations under the Finance Documents including: |
(i) | any time, waiver or consent granted to, or composition with, any Obligor or other person; |
(ii) | the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any other Obligor; |
(iii) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security; |
(iv) | 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; |
(v) | any amendment, assignment, assumption, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security; |
(vi) | any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or |
(vii) | any insolvency or similar proceedings. |
(f) | Each Obligor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from such Obligor under any Finance Document. This waiver applies irrespective of any law or any provision of a Finance Document to the contrary. |
(g) | Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably and unconditionally paid or discharged in full, each Finance Party (or any trustee or agent on its behalf) may: |
(i) | refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit against those amounts; and |
(ii) | hold in an interest-bearing suspense account any money received from any Obligor or on account of any Obligor's liability under any Finance Document. |
(h) | 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 and unless the Administrative Agent otherwise directs (on such terms as it may reasonably require), none of the Obligors shall exercise any rights (including rights of set-off) which it may have by reason of performance by it of its obligations under the Finance Documents: |
(i) | to be indemnified by another Obligor; |
(ii) | to claim any contribution from any other Obligor or any Guarantor of or provider of security for any Obligor's obligations under the Finance Documents; and/or |
(iii) | to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any guaranty or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party. |
3 | Purpose |
3.1 | Purpose |
(a) | The Ship 1 Advance (which shall be made available in the lesser of (a) 55% of the Age Adjusted Delivered Price of Ship 1 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 1, tested in accordance with Clause 24.2(a) ( Valuation frequency ), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 1. |
(b) | The Ship 2 Advance (which shall be made available in the lesser of (a) 55% of the Age Adjusted Delivered Price of Ship 2 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 2, tested in accordance with Clause 24.2(a) ( Valuation frequency ), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 2. |
(c) | The Ship 3 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 3 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 3, tested at the time of delivery of Ship 3, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 3. |
(d) | The Ship 4 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 4 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 4, tested at the time of delivery of Ship 4, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 4. |
(e) | The Ship 5 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 5 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 5, tested at the time of delivery of Ship 5, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 5. |
(f) | The Ship 6 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 6 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 6, tested at the time of delivery of Ship 6, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 6. |
(g) | The Ship 7 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 7 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 7, tested at the time of delivery of Ship 7, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 7. |
(h) | The Ship 8 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 8 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 8, tested at the time of delivery of Ship 8, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 8. |
(i) | The Ship 9 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 9 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 9, tested at the time of delivery of Ship 9, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 9. |
(j) | The Ship 10 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 10 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 10, tested at the time of delivery of Ship 10, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 10. |
(k) | The Ship 11 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 11 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 11, tested at the time of delivery of Ship 11, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 11. |
(l) | The Ship 12 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 12 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 12, tested at the time of delivery of Ship 12, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 12. |
(m) | The Ship 13 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 13 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 13, tested at the time of delivery of Ship 13, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 13. |
(n) | The Ship 14 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 14 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 14, tested at the time of delivery of Ship 14, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 14. |
(o) | The Ship 15 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 15 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 15, tested at the time of delivery of Ship 15, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 15. |
(p) | The Ship 16 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 16 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 16, tested at the time of delivery of Ship 16, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 16. |
(q) | The Ship 17 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 17 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 17, tested at the time of delivery of Ship 17, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 17. |
(r) | The Ship 18 Advance (which shall be made available in the lesser of (a) 55% of the Delivered Price of Ship 18 (as identified in Schedule 2 ( Ship Information )), plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship and (b) 55% of the Fair Market Value of Ship 18, tested at the time of delivery of Ship 18, plus an amount equal to the K-sure Premium and KEXIM Premium for such Ship) shall be made available solely for the purpose of financing part of the Delivered Price in respect of Ship 18. |
3.2 | Monitoring |
4 | Conditions of Utilization |
4.1 | Conditions precedent to Closing Date |
4.2 | Conditions precedent to each Utilization Date |
4.3 | Conditions precedent to each Release Date |
4.4 | Notice to Lenders and Borrower |
4.5 | Further conditions precedent |
(a) | no Default is continuing or would result from the proposed Utilization; |
(b) | all of the representations set out in Clause 17 ( Representations ) are true; |
(c) | the Administrative Agent and the ECA Agent have received, and found to be reasonably acceptable to each of them, any further opinions, consents, agreements and documents in |
(d) | the ECA Agent has not received any notice from K-sure requesting the K-sure Lenders to suspend the making of any A dvance under the K-sure Tranche and/or the K-sure Lenders are not required by the terms of any of the K-sure Insurance Policies to suspend the making of the of any Advance under the K-sure Tranche; |
(e) | no occurrence, event or circumstances exist which prohibits any of the K-sure Lenders from participating in any Advance under the K-sure Tranche pursuant to the terms of any of the K-sure Insurance Policies; |
(f) | none of the Obligors or the Finance Parties have received any notice from KEXIM suspending (or purporting to suspend) any Advance under the KEXIM Funded Tranche and/or the KEXIM Guarantee; and |
(g) | the KEXIM Guarantee is in full force and effect and (i) has not been declared by KEXIM to be ineffective as to the coverage provided by KEXIM and (ii) has not ceased to be in full force and effect as to the full amount of coverage provided by KEXIM. |
4.6 | Waiver of conditions precedent |
5 | Utilization |
5.1 | Delivery of a Utilization Request |
5.2 | Completion of a Utilization Request |
(a) | it specifies the Ship(s) to which it relates; |
(b) | the proposed Utilization Date is a Business Day falling on or before the Last Availability Date for that Ship; |
(c) | the proposed Release Date is a Business Day; |
(d) | the currency and amount of the Utilization comply with Clause 5.3 ( Currency and amount ); |
(e) | the proposed Interest Period complies with Clause 9 ( Interest Periods ); |
(f) | it identifies the purpose for the Utilization and that purpose complies with Clause 3 ( Purpose ); |
(g) | it specifies the account bank details to which the proceeds of the Loan are to be credited; and |
(h) | it is duly signed by authorized signatories of the Borrower; |
5.3 | Currency and amount |
5.4 | Lenders' obligation |
(a) | If the conditions set out in this Agreement have been met, each Lender shall make its participation in each Advance available by the relevant Utilization Date through its Facility Office. |
(b) | The amount of each Lender's participation in the Advance will be equal to the proportion borne by its undrawn Commitment to the undrawn Total Commitments immediately prior to making the Advance. |
(c) | The Administrative Agent shall promptly notify each Lender of the amount of the Advance and the amount of its participation in the Advance, and, if different, the amount of that participation to be made available in accordance with Clause 36.1 (Payments to the Administrative Agent), in each case no later than four (4) Business Days before the Utilization Date. |
(d) | Except for the Ship 1 Advance and the Ship 2 Advance, the Administrative Agent shall ensure that each Advance is remitted to the suspense account specified by the Borrower in the Utilization Request. If the conditions set out in Clause 4.3 ( Conditions precedent to each Release Date ) are met, in addition to the other conditions set out in this Agreement, the Administrative Agent shall release the Advance to the relevant Shipyard and/or its financial institution on the Release Date. |
(e) | The Borrower irrevocably authorizes and directs the Administrative Agent to remit the proceeds of each Advance to the account specified in the relevant Utilization Request. |
6 | Repayment |
6.1 | Repayment |
6.2 | Scheduled Repayment of Advances |
(a) | Repayment of Commercial Tranche of each Advance: Subject to Clause 7 ( Illegality, prepayment and cancellation ), the Borrower shall repay the Commercial Tranche of each Advance in equal quarterly installments, one such installment to be repaid on each of the Repayment Dates relative to such Advance, excluding the first installment and the final installment as set out in Clause 6.3 ( Repayment of First Installment and Final Installment of each Advance ), in accordance with an 18-year age adjusted loan repayment profile. |
(b) | Repayment of KEXIM Guaranteed Tranche: Subject to Clause 7 ( Illegality, prepayment and cancellation ), the Borrower shall repay the KEXIM Guaranteed Tranche of each Advance in equal quarterly repayments, one such installment to be repaid on each of the Repayment Dates relative to such Advance, excluding the first installment and the final installment as set out in Clause 6.3 ( Repayment of First Installment and Final Installment of Each Advance ), in accordance with a 12-year age adjusted loan repayment profile. |
(c) | Repayment of KEXIM Funded Tranche: Subject to Clause 7 ( Illegality, prepayment and cancellation ), the Borrower shall repay the KEXIM Funded Tranche of each Advance in equal quarterly repayments, one such installment to be repaid on each of the Repayment Dates relative to such Advance, excluding the first installment and the final installment as set out in Clause 6.3 ( Repayment of First Installment and Final Installment of Each Advance ), in accordance with a 12-year age adjusted loan repayment profile. |
(d) | Repayment of K-sure Tranche: Subject to Clause 7 ( Illegality, prepayment and cancellation ), the Borrower shall repay the K-sure Tranche of each Advance in equal quarterly repayments, one such installment to be repaid on each of the Repayment Dates relative to such Advance, excluding the first installment and the final installment as set out in Clause 6.3 ( Repayment of First Installment and Final Installment of Each Advance ), in accordance with a 12-year age adjusted loan repayment profile. |
6.3 | Repayment of First Installment and Final Installment of each Advance |
(a) | The first installment payable under each Advance shall be increased pro rata to account for the relevant Ship's Delivery Date falling between two Repayment Dates and shall be calculated as the relevant fraction (the numerator of which is the number of days elapsed between the relevant Ship's Delivery Date and the First Repayment Date, and the denominator of which is the number of days between the next Repayment Date following the relevant Ship's Delivery Date and the First Repayment Date) multiplied by the installment relevant to the Advance. |
(b) | On the Final Repayment Date for each Advance, the Advance shall be paid in full. |
(c) | If the Delivery Date of a Ship is also a Repayment Date, or in the case of Ship 1 and Ship 2, there shall be no requirement to increase the first installment as set forth in this Clause 6.3, and repayment of such Advance shall commence on the next Repayment Date. |
7 | Illegality, prepayment and cancellation |
7.1 | Illegality |
(a) | the Lender shall promptly notify the Administrative Agent upon becoming aware of that event; |
(b) | upon the Administrative Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; |
(c) | to the extent that the Lender's participation has not been assigned pursuant to Clauses 2.2 ( Increase ) or 41.8(a) to 41.8(c) ( Replacement of a Defaulting Lender ), the Borrower shall repay (without any fees, premium or penalty) all amounts outstanding to the Lender on the last day of the Interest Period occurring after the Administrative Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law); and |
(d) | no prepayment fee shall be payable pursuant to Clause 11.3 ( KEXIM Prepayment Fee ) in connection with prepayments in accordance with this Clause 7.1. |
7.2 | Change of Control |
(a) | The Facility Guarantor shall promptly notify the Administrative Agent upon any Obligor becoming aware of a Change of Control . |
(b) | If a Change of Control occurs (other than an Upstream Guarantor Change of Control), the Administrative Agent may, and shall if so directed by the Required Lenders, by notice to the Borrower, cancel the Total Commitments with effect from a date specified in that notice which is at least 30 days after the giving of the notice and declare that all or part of the Loan be payable on demand after such date, on which date it shall become payable on demand by the Administrative Agent on the instructions of the Required Lenders or, if the Change of Control relates to an Upstream Guarantor Change of Control, then the Administrative Agent may declare that the higher of (i) the drawn and outstanding amount of the Advance with respect to the relevant Ship owned by such Upstream Guarantor and (ii) the amount required to comply with the provisions in Clause 24 ( Minimum security value ) after such prepayment shall be prepaid. |
(c) | Any partial prepayment of the Loan under this Clause 7.2 shall be applied to the outstanding principal amount of each Advance on a pro rata basis and shall reduce future installments payable in respect of each Advance under Clause 6.2 ( Scheduled Repayment of Advances ) in inverse chronological order unless such Change of Control relates to one or more of the Upstream Guarantors, in which case the Advance with respect to the relevant Ship owned by such Upstream Guarantor shall be paid in full together with the amount required (if any) to comply with the provisions in Clause 24 ( Minimum security value ) which additional amounts shall reduce future installments payable in respect of each remaining Advance under Clause 6.2 ( Scheduled Repayment of Advances ) in inverse chronological order. |
7.3 | Loss of ECA Support |
(a) | If at any time the KEXIM Guarantee is lost, cancelled, unenforceable or invalid while any amounts remain outstanding under the KEXIM Guaranteed Tranche, the Administrative Agent shall immediately cancel the Total Commitments and declare that the entire Loan be payable on demand. |
(b) | If at any time, in relation to an Advance, the relevant K-sure Insurance Policy is lost, cancelled, unenforceable or invalid while any amounts remain outstanding under the K-sure Tranche in relation to such Advance, the Administrative Agent shall immediately cancel the Total Commitments and declare that the entire Loan be payable on demand. |
7.4 | Voluntary prepayment |
(a) | Prepayment of the Loan |
(i) | Subject to the payment of any fees payable by the Borrower pursuant to Clause 11.3 ( KEXIM Prepayment Fee ), the Borrower may, if it gives the Administrative Agent and the ECA Agent not less than ten (10) Business Days' prior written notice, prepay the whole or any part of the Loan (but if in part, being an amount that reduces the amount of the Loan by a minimum amount of $1,000,000 or any whole number multiples thereof) on the last day of an Interest Period in respect of the amount to be prepaid. |
(ii) | Any partial prepayment of the Loan under this Clause 7.4 (i) shall be applied to the outstanding principal amount of each Advance according to the Prepayment Allocations and (ii) shall reduce future installments payable in respect of each Advance under Clause 6.2 ( Scheduled Repayment of Advances ), excluding the final payments, other than prepayments pursuant to Clause 24.11(b) ( Security shortfall ), which shall reduce future installments, on a pro rata basis, payable in respect of each Advance, including the final payments. |
(b) | Refund of K-sure Premium |
7.5 | Put Options |
(a) | KEXIM shall have a put option to require prepayment of the KEXIM Funded Tranche and the KEXIM Guaranteed Tranche, and K-sure shall have a put option to call for prepayment on the K-sure Tranche to be exercised on the Final Repayment Date of the Commercial Tranche, if the Commercial Tranche is not committed to be refinanced/renewed prior to the date that falls two (2) months before the Final Repayment Date of the Commercial Tranche, provided that the ECA Agent shall provide written notice to K -sure and KEXIM as to whether the refinancing/renewal of the Commercial Tranche has been obtained on or prior to the date which is two (2) months prior to the final maturity date of the Commercial Tranche . Upon exercise of the above put options (the Put Options and each a Put Option ), all outstanding amounts under the KEXIM Funded Tranche, the KEXIM Guaranteed Tranche and the K-sure Tranche must be repaid on the Final Repayment Date of the Commercial Tranche. |
(b) | No KEXIM Prepayment Fee shall be payable in connection with a prepayment following any exercise of the Put Option. |
7.6 | Sale or Total Loss |
(a) | If a Ship becomes a Total Loss before its Advance has become available for borrowing under this Agreement, the Total Commitments shall be reduced by an amount equal to the maximum amount of the respective Advance as specified in the definition of that Advance in Clause 1.1 ( Definitions ). |
(b) | On a Mortgaged Ship's Disposal Repayment Date, the Borrower shall immediately pay the Administrative Agent the higher of (i) the drawn and outstanding amount of the Advance with respect to the relevant Mortgaged Ship and (ii) the amount required (if any) to comply with the provisions in Clause 24 ( Minimum security value ) after such prepayment, such amount to be applied first, to repay the Advance with respect to the relevant Mortgaged Ship and second, to repay the remaining Advances on a pro rata basis and to reduce future installments in respect of such Advances pro rata in inverse chronological order. |
7.7 | Voluntary cancellation |
7.8 | Automatic cancellation |
7.9 | Right of replacement or cancellation and prepayment in relation to a single Lender |
(a) | If: |
(i) | any sum payable to any Lender by an Obligor is required to be increased under Clause 12.2 ( Grossing-up for taxes ); or |
(ii) | any Lender claims indemnification from the Borrower under Clause 12.5 ( Indemnity for taxes ) or Clause 13 ( Increased Costs ), |
(b) | On receipt of a notice referred to in Clause 7.9(a) ( Right of replacement or cancellation and prepayment in relation to a single Lender ) above, the Commitment of that Lender shall immediately be reduced to zero. |
(c) | On the last day of each Interest Period which ends after the Borrower has given notice under Clause 7.9(a) ( Right of replacement or cancellation and prepayment in relation to a single |
(d) | If any Lender becomes a Defaulting Lender, the Borrower may, at any time while the Lender continues to be a Defaulting Lender give the Administrative Agent two (2) Business Days' notice of cancellation of the undrawn Commitment of that Lender. |
(e) | On the notice provided pursuant to Clause 7.9(c) ( Right of replacement or cancellation and prepayment in relation to a single Lender ) becoming effective, the undrawn Commitment of the Defaulting Lender shall immediately be reduced to zero and the remaining undrawn Commitments shall each be reduced ratably and the Administrative Agent shall as soon as practicable after receipt of such notice, notify all the Lenders. |
7.10 | Restrictions |
(a) | Any notice of cancellation or prepayment given by any Party under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment. |
(b) | Any prepayment under this Agreement, including but not limited to Clause 7.2 ( Change of control ), shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs and Prepayment Fees, without premium or penalty (other than the KEXIM Prepayment Fee (subject to the provisions of Clause 11.3)). |
(c) | The Borrower may not reborrow any part of the Facility which is repaid or prepaid under this Agreement. |
(d) | The Borrower shall not 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) | Subject to Clause 2.2 ( Increase ), no amount of the Commitments cancelled under this Agreement may be subsequently reinstated. |
(f) | If the Administrative Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender or Lenders, as appropriate. |
(g) | If the Total Commitments are partially reduced under this Agreement other than under Clause 7.1 ( Illegality ) and Clause 7.9 ( Right of replacement or cancellation and prepayment in relation to a single Lender ), the Commitments of the Lenders shall be reduced ratably. |
(h) | Any prepayment under this Agreement shall be made together with payment to a Swap Bank of any amount falling due to the relevant Swap Bank under a Hedging Contract as a result of the termination or close out of that Hedging Contract or any Hedging Transaction under it in accordance with Clause 27.3 (Unwinding of Hedging Contracts) in relation to that prepayment. The Borrower must inform and deliver satisfactory evidence to the Administrative Agent to be forwarded to the Lenders of any required close-out payments to any Swap Bank within five (5) Business Days after the relevant prepayment date. |
(i) | In the case of prepayment of the KEXIM Guaranteed Tranche, the unutilized portion of the KEXIM Premium shall be refunded in accordance with the terms and conditions as contained in the KEXIM Guarantee and KEXIM's internal regulations, and the ECA Agent shall use commercially reasonable efforts for such refund to be effected. |
7.11 | Conditions to the Replacement of a Lender |
(a) | no Finance Party shall have any obligation to find a replacement Lender; and |
(b) | any Lender replaced pursuant to Clause 7.9 ( Right of repayment and cancellation in relation to a single Lender ) shall not be required to refund, or to pay or surrender to any other Lender, any of the fees or other amounts received by the replaced Lender under any Finance Document. |
8 | Interest |
8.1 | Calculation of interest |
(a) | Margin; and |
(b) | LIBOR. |
8.2 | Payment of interest |
8.3 | Default interest |
(a) | If an Obligor fails to pay any amount payable by it under a Finance Document (other than a Hedging Contract) on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to Clause 8.3(b) ( Default interest ) below, is 2% per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted an Advance for successive ninety (90)-day Interest Periods. Any interest accruing in accordance with this Clause 8.3 shall be immediately payable by the Obligors on demand by the Administrative Agent. |
(b) | If any overdue amount consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to such Advance or the relevant part of it: |
(i) | the first Interest Period for that overdue amount shall have a duration equal to the unexpired portion of the current Interest Period relating to such Advance; and |
(ii) | the rate of interest applying to the overdue amount during that first Interest Period shall be 2% per annum higher than the rate which would have applied if the overdue amount had not become due. |
(c) | Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable. |
8.4 | Notification of rates of interest |
9 | Interest Periods |
9.1 | Commencement of Interest Periods. |
9.2 | Duration of normal Interest Periods. |
(a) | in respect of the Commercial Tranche: |
(i) | three (3) or six (6) months as notified by the Borrower to the Administrative Agent not later than 11:00 a.m. (New York time) three (3) Business Days before the commencement of the Interest Period; |
(ii) | in the case of the first Interest Period applicable to each Advance other than the first Advance, a period commencing on the relevant Utilization Date and ending on the last day of the then current Interest Period for outstanding Advances; |
(iii) | three (3) months, if the Borrower fails to notify the Administrative Agent by the time specified in paragraph (i); or |
(iv) | such other period as the Administrative Agent may, with the authorization of the Commercial Lenders, agree with the Borrower; |
(b) | in respect of the KEXIM Guaranteed Tranche, the KEXIM Funded Tranche and the K-sure Tranche : |
(i) | three (3) months; or |
(ii) | in the case of the first Interest Period applicable to each Advance other than the first Advance, a period commencing on the relevant Utilization Date and ending on the last day of the then current Interest Period for outstanding Advances. |
9.3 | Duration of Interest Periods for repayment installments. |
9.4 | Non-availability of matching deposits for Interest Period selected. |
9.5 | Non-Business Days |
10 | Changes to the calculation of interest |
10.1 | Absence of quotations |
10.2 | Market disruption |
(a) | If a Market Disruption Event under 10.3(a) occurs in relation to the Loan for any Interest Period , then the rate of interest on each Lender's share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of: |
(i) | the Margin; and |
(ii) | the rate notified to the Administrative Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the Loan from whatever source it may reasonably select. |
(b) | If a Market Disruption Event under 10.3(b) occurs in relation to any Lender's Participation in the Loan for any Interest Period, then the rate of interest on such Lender's share of the Loan for the Interest Period shall be the percentage rate per annum which is the sum of: |
(i) | the Margin; and |
(ii) | the rate notified to the Administrative Agent by that Lender as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the Loan from whatever source it may reasonably select. |
(c) | If a Market Disruption Event occurs the Administrative Agent shall, promptly and as soon as is practicable after the occurrence thereof, notify the Borrower . |
10.3 | In this Agreement: |
(a) | at or about noon in London on the Quotation Day for the relevant Interest Period LIBOR is to be determined by reference to the Reference Banks and none or only one of the Reference Banks supplies a rate to the Administrative Agent to determine LIBOR for the relevant Interest Period; or |
(b) | before close of business in London on the Quotation Day for the relevant Interest Period, the Administrative Agent receives notifications from a Lender or Lenders (whose participations in the Loan are at least equal to or greater than 50 per cent of the Loan) that the cost to it of funding its participation in the Loan from the London Interbank Market or if cheaper from whatever source it may reasonably select would be in excess of LIBOR. |
10.4 | Alternative basis of interest or funding |
(a) | If a Market Disruption Event occurs and the Administrative Agent or the Borrower so requires, the Administrative Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest. |
(b) | Any alternative basis agreed pursuant to clause (a) above shall, with the prior consent of all the Lenders be binding on all Parties. |
10.5 | Break Costs |
(a) | The Borrower shall, within three (3) Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for an Advance or, as the case may be, an Unpaid Sum or relevant part of it. |
(b) | Each Lender shall, as soon as reasonably practicable after a demand by the Administrative Agent, confirm the amount of its Break Costs for any Interest Period in which they accrue. |
11 | Fees |
11.1 | Commitment commission |
(a) | The Borrower shall pay to the Administrative Agent (for the account of each of the Lenders) a fee in dollars computed at the rate of 40% of the Margin (and in the case of the Commercial Tranche, the applicable Margin as the same may be adjusted from time to time) per annum on the undrawn and uncancelled portion of that Lender's Commitment which shall accrue from the Closing Date until the Last Availability Date of each of the Commercial Tranche, the KEXIM Funded Tranche, the KEXIM Guaranteed Tranche and the K-sure Tranche. |
(b) | The accrued commitment commission shall be payable in arrears starting on the date falling three (3) months after the Closing Date and every three (3) months thereafter and also on each date on which an Advance is made with respect to the relevant amount drawn down until the undrawn portion of the Total Commitments is permanently reduced to zero, and any unpaid portion of the accrued commitment commission shall be paid on the date the undrawn portion of the Total Commitments is permanently reduced to zero. |
(c) | No commitment fee is payable to the Administrative Agent (for the account of a Lender) on any undrawn Commitment of that Lender for any day on which that Lender is a Defaulting Lender. |
11.2 | Other fees |
11.3 | KEXIM Prepayment Fee |
11.4 | KEXIM Premium |
(a) | The Borrower acknowledges that the KEXIM Lenders benefit from the KEXIM Guarantee once issued and in effect. |
(b) | The Borrower and each KEXIM Lender acknowledge and agree that: |
(i) | the amounts of the KEXIM Premium will be as set forth in the relevant Fee Letter and will be payable on the dates as specified in that Fee Letter (but, for the avoidance of doubt, no KEXIM Premium or any part thereof is payable on the Closing Date); and |
(ii) | no KEXIM Lender is in any way involved in the calculation or payment (otherwise than as financed in whole or in part pursuant to this Agreement) of any part of the KEXIM Premium. |
11.5 | K-sure Premium . |
(a) | agrees, and each K-sure Lender acknowledges and agrees, that: |
(i) | the amount of any K-sure Premium will be calculated in accordance with the percentage included in the relevant defined term as of the date of this Agreement, but otherwise subject to the terms of the relevant K-sure Insurance Policy and K-sure's internal regulations; and |
(ii) | no K-sure Lender is in any way involved in the calculation or payment (otherwise than as financed in whole or in part pursuant to this Agreement) of any part of any K-sure Premium; |
(b) | agrees that their obligation to pay any K-sure Premium or any part of any K-sure Premium in accordance with the relevant K-sure Insurance Policy shall be an absolute and unconditional obligation and, without limitation, shall not be affected by any failure by the Borrower to draw down funds under this Agreement or the prepayment or acceleration of the whole or any part of the Loan; |
(c) | acknowledges that it shall pay an amount equivalent to each K-sure Premium (including default interest under the relevant K-sure Insurance Policy) to K-sure on the relevant due date, and no K-sure Premium will be refundable in whole or in part in any circumstances, unless otherwise provided in the relevant K-sure Insurance Policy and Clause 7.4(b) ( Refund of K-sure Premium ); |
(d) | agrees that if, for any reason whatsoever, any additional premium is or becomes payable to K-sure in respect of any K-sure Insurance Policy, the Borrower shall promptly pay such additional premium in full and the Borrower shall fully cooperate with the Administrative Agent and the ECA Agent on their reasonable request to take all steps necessary on the part of the Borrower to ensure that each K-sure Insurance Policy remains in full force and effect throughout the Facility Period; and |
(e) | shall indemnify K-sure in relation to any costs or expenses (including reasonable legal fees) suffered or incurred by K-sure in connection with any transfer to K-sure undertaken pursuant to Clause 30.1 ( Assignments by the Lenders ) or in connection with any review by K-sure of or |
12 | No Set-Off or Tax Deduction; Tax Indemnity; FATCA |
12.1 | No deductions |
(a) | without any form of set-off, cross-claim or condition; and |
(b) | free and clear of any tax deduction except a tax deduction which such Obligor is required by law to make. |
(a) | such Obligor shall notify the Administrative Agent as soon as it becomes aware of the requirement; |
(b) | such Obligor shall pay the tax deducted to the appropriate taxation authority promptly, and in any event before any fine or penalty arises; and |
(c) | except if the deduction is for collection or payment of a Non-indemnified Tax of an Indemnified Person, the amount due in respect of the payment shall be increased by the amount necessary to ensure that each Indemnified Person receives and retains (free from any liability relating to the tax deduction) a net amount which, after the tax deduction, is equal to the full amount which it would otherwise have received. |
(a) | such Indemnified Person shall not be obliged to allocate to this transaction any part of a tax repayment or credit which is referable to a class or number of transactions; |
(b) | nothing in this Clause 12.4 shall oblige an Indemnified Person to disclose the contents of any tax filings or other confidential information or to arrange its tax affairs in any particular manner, to claim any type of relief, credit, allowance or deduction instead of, or in priority to, another or to make any such claim within any particular time; |
(c) | nothing in this Clause 12.4 shall oblige an Indemnified Person to make a payment which would leave it in a worse position than it would have been in if the Obligor had not been required to make a tax deduction from a payment; and |
(d) | any allocation or determination made by an Indemnified Person under or in connection with this Clause 12.4 shall be conclusive and binding on each Obligor. |
(a) | the person claiming such indemnity or additional amounts was not an original party to this agreement and under applicable law (after taking into account relevant treaties and assuming that such person has provided all forms it may legally and truthfully provide) on the date such person became a party to this Agreement, a Withholding would have been required on such payment, provided that this exclusion shall not apply to the extent such indemnity or additional amounts do not exceed the indemnity or additional amounts that would have been applicable if such payment had been made to the person from whom such person acquired its rights under the Agreement, and this exclusion shall not apply to the extent that such indemnity or additional amounts exceed the indemnity or additional amounts that would have been required under the law in effect on the date such person became a party to this Agreement; or |
(b) | the person claiming such indemnity or additional amounts is a Lender which has changed its Lending Office and under applicable law (after taking into account relevant treaties and assuming that such Lender has provided all forms it may legally and truthfully provide) on the date such Lender changed its Lending Office Withholding would have been required on such payment, provided that this exclusion shall not apply to the extent such indemnity or additional amounts do not exceed the indemnity or additional amounts that would have been applicable to such payment if such Lender had not changed its Lending Office, and this exclusion shall not apply to the extent that the indemnity or additional amounts exceed the indemnity or additional amounts that would have been required under the law in effect immediately after such Lender changed its Lending Office; or |
(c) | in the case of a Lender, to the extent that Withholding would not have been required on such payment if such Lender had complied with its obligations to deliver certain tax form pursuant to Clause 12.7 ( Delivery of tax forms ) below. |
12.7 | Delivery of tax forms |
(a) | Upon the reasonable written request of the Borrower, each Lender or transferee that is organized under the laws of a jurisdiction outside the United States (a " Non-U.S. Lender ") shall deliver to the Administrative Agent and the Borrower two properly completed and duly executed copies of (as applicable) IRS Form W-8BEN-E, W-8ECI or W-8IMY or, upon written request of the Borrower or the Administrative Agent, any subsequent versions thereof or successors thereto, in each case claiming such reduced rate (which may be zero) of U.S. |
(b) | In the event that Withholding taxes may be imposed under the laws of any Pertinent Jurisdiction (other than the United States or any political subdivision or taxing jurisdiction thereof or therein) in respect of payments on the Loan or other amounts due under this Agreement and if certain documentation provided by a Lender could reduce or eliminate such Withholding taxes under the laws of such Pertinent Jurisdiction or any treaty to which the Pertinent Jurisdiction is a party, then, upon written request by an Obligor, a Lender that is entitled to an exemption from, or reduction in the amount of, such Withholding tax shall deliver to such Obligor (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or promptly after receipt of the Obligor's request, whichever is later, such properly completed and executed documentation requested by the Obligor, if any, as will permit such payments to be made without withholding or at a reduced rate of withholding; provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender's reasonable judgment such completion, execution or delivery would not materially prejudice the legal or commercial position of such Lender. |
(c) | Each Lender shall deliver such forms as required in this Clause 12.7 within twenty (20) days after receipt of a written request therefor from the Administrative Agent or the Obligor. |
(d) | Notwithstanding any other provision of this Clause 12.7, a Lender shall not be required to deliver any form pursuant to this Clause 12.7 that such Lender is not legally entitled to deliver. |
12.9 | FATCA information |
(a) | Subject to paragraph (c) below, within ten (10) Business Days of a reasonable request by another FATCA Relevant Party, each FATCA Relevant Party shall: |
(i) | confirm to that other party whether it is a FATCA Exempt Party or is not a FATCA Exempt Party; and |
(ii) | supply to the requesting party (with a copy to the Administrative Agent) such other form or forms (including IRS Form W-8BEN-E or Form W-9 or any successor or substitute form, as applicable) and any other documentation and other information relating to its status under FATCA (including its applicable " passthru percentage " or other information required under FATCA or other official guidance, including any applicable intergovernmental agreements) as the requesting party reasonably requests for the purpose of determining whether any payment to such party may be subject to any FATCA Deduction. |
(b) | If a FATCA Relevant Party confirms to any other FATCA Relevant Party that it is a FATCA Exempt Party or provides an IRS Form W-8BEN-E or W-9 to show that it is a FATCA Exempt Party, and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that party shall so notify all other FATCA Relevant Parties reasonably promptly. |
(c) | Nothing in this Clause 12.9 shall obligate any FATCA Relevant Party to do anything which would or, in its reasonable opinion, might constitute a breach of any law or regulation, any policy of that party, any fiduciary duty or any duty of confidentiality, or to disclose any confidential information (including, without limitation, its tax returns and calculations); provided that nothing in this paragraph shall excuse any FATCA Relevant Party from providing a true complete and correct IRS Form W-8 or W-9 (or any successor or substitute form where applicable). Any information provided on such IRS Form W-8 or W-9 (or any successor or substitute forms) shall not be treated as confidential information of such party for purposes of this paragraph. |
(d) | If a FATCA Relevant Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with the provisions of this Agreement, or if the provided information is insufficient under FATCA, then: |
(i) | such party shall be treated as a FATCA Non-Exempt Party; and |
(ii) | if, to the extent relevant, that party failed to confirm its applicable passthru percentage then such party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable passthru percentage is 100%, |
12.10 | FATCA withholding |
(a) | A FATCA Relevant Party making a payment to any FATCA Non-Exempt Party shall make such FATCA Deduction as it determines is required by law and shall render payment to the IRS within the time allowed and in the amount required by FATCA. |
(b) | If a FATCA Deduction is required to be made by any FATCA Relevant Party to a FATCA Non-Exempt Party, the amount of the payment due from such FATCA Relevant Party to such FATCA Non-Exempt Party shall be reduced by the amount of the FATCA Deduction reasonably determined to be required by such FATCA Relevant Party. |
(c) | Each FATCA Relevant Party shall promptly upon becoming aware that a FATCA Deduction is required with respect to any payment owed to it (or that there is any change in the rate or basis of a FATCA Deduction) notify each other FATCA Relevant Party accordingly. |
(d) | Within thirty days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the party making such FATCA Deduction shall deliver to the Administrative Agent for delivery to the party on account of whom the FATCA Deduction was made evidence reasonably satisfactory to that party that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the IRS. |
(e) | A FATCA Relevant Party who becomes aware that it must make a FATCA Deduction in respect of a payment to another FATCA Relevant Party (or that there is any change in the rate or basis of such FATCA Deduction) shall notify that party and the Administrative Agent. |
(f) | The Administrative Agent shall promptly upon becoming aware that it must make a FATCA Deduction in respect of a payment to a Lender which relates to a payment by a Borrower (or |
(g) | If a FATCA Deduction is made as a result of any Finance Party failing to be a FATCA Exempt Party, such party shall indemnify each other Finance Party against any loss, cost or expense to it resulting from such FATCA Deduction. |
13 | Increased Costs |
13.1 | Increased Costs |
(a) | Subject to Clause 13.3 ( Exceptions ), the Borrower shall, within three (3) Business Days of a demand by the Administrative Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates which arises as a result of a Change in Law. |
(b) | In this Agreement Increased Costs means: |
(i) | a reduction in the rate of return from the Facility or on a Finance Party's (or its Affiliate's) overall capital; |
(ii) | an additional or increased cost; or |
(iii) | a reduction of any amount due and payable under any Finance Document, |
13.2 | Increased Cost claims |
(a) | A Finance Party intending to make a claim pursuant to Clause 13.1 ( Increased Costs ) shall notify the Administrative Agent of the event giving rise to that claim, following which the Administrative Agent shall promptly notify the Borrower. |
(b) | Each Finance Party shall, as soon as practicable after a demand by the Administrative Agent, provide a certificate confirming the amount of its Increased Costs. |
13.3 | Exceptions |
(a) | Clause 13.1 ( Increased Costs ) does not apply to the extent any Increased Cost is: |
(i) | attributable to a tax deduction required by law to be made by an Obligor; |
(ii) | attributable to a FATCA Deduction required to be made by a Party; |
(iii) | compensated for by Clause 12.5 ( Indemnity for Taxes ) (or would have been compensated for under Clause 12.5 ( Indemnity for Taxes ) but was not so compensated solely because any of the exclusions in Clause 12.5 ( Indemnity for Taxes ) applied); or |
(iv) | attributable to the willful breach by the relevant Finance Party or its Affiliates of any law or regulation. |
14 | Other indemnities |
14.1 | Currency indemnity |
(a) | If any sum due from an Obligor under the Finance Documents (a " Sum "), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the " First Currency ") in which that Sum is payable into another currency (the " Second Currency ") for the purpose of: |
(i) | making or filing a claim or proof against that Obligor; and/or |
(ii) | obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings, |
(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. |
14.2 | Other indemnities |
(a) | the occurrence of any Default; |
(b) | any information produced or approved by the Borrower being misleading and/or deceptive in any respect; |
(c) | any inquiry, investigation, subpoena (or similar order) or litigation with respect to any Obligor or with respect to the transactions contemplated or financed under this Agreement; |
(d) | a failure by an Obligor to pay any amount due under a Finance Document on its due date, including, without limitation, any and all Losses arising as a result of Clause 35 ( Sharing among the Finance Parties ); |
(e) | funding , or making arrangements to fund, its participation in an Advance requested by the Borrower in a Utilization Request but not made by reason of the operation of any one or more of the provisions of this Agreement (other than by reason of default or negligence by that Finance Party alone); |
(f) | the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower. |
14.3 | Indemnity to the Administrative Agent and the Security Agent |
(a) | any and all Losses incurred by the Administrative Agent or the Security Agent as a result of : |
(i) | investigating any event which it reasonably believes is a Default; |
(ii) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorized; |
(iii) | instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; or |
(iv) | any action taken by the Administrative Agent or the Security Agent, or any of its or their representatives, agents or contractors in connection with any powers conferred by any Finance Document to remedy any breach of any obligations of any Obligor or any manager or charterer of any Ship ; and |
(b) | any Losses incurred by the Administrative Agent or the Security Agent, (otherwise than by reason of the Administrative Agent's or the Security Trustee's gross negligence or willful misconduct); or, in the case of Losses pursuant to Clause 36.9 ( Disruption to payment systems etc .), notwithstanding the Administrative Agent's or the Security Trustee's negligence, gross negligence, or any other category of liability whatsoever (except fraud of the Administrative Agent or the Security Agent acting in such capacity under the Finance Documents). |
14.4 | Indemnity concerning security |
(a) | The Borrower shall (or shall procure that another Obligor will) promptly indemnify each Indemnified Person against any and all Losses incurred by it in connection with: |
(i) | any failure by the Borrower to comply with Clause 16 ( Costs and expenses ); |
(ii) | acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorized; |
(iii) | the taking, holding, protection or enforcement of the Security Documents; |
(iv) | the exercise or purported exercise of any of the rights, powers, discretions and remedies vested in the Security Agent by the Finance Documents or by law unless and to the extent that it was caused by its gross negligence or willful misconduct; or |
(v) | any claim (whether relating to the environment or otherwise) made or asserted against the Indemnified Person which would not have arisen but for the execution or enforcement of one or more Finance Documents unless and to the extent that it was caused by its gross negligence or willful misconduct. |
(b) | The Security Agent may, in priority to any payment to the other Finance Parties, indemnify itself out of the Trust Property in respect of, and pay and retain, all sums necessary to give effect to the indemnity in paragraph (a) above and Clause 14.3 ( Indemnity to the Administrative Agent and the Security Agent ) and shall have a lien on the Security Documents and the proceeds of the enforcement of those Security Documents for all moneys payable to it. |
14.5 | KEXIM Indemnity |
(i) | investigating any event which it reasonably believes is a covered risk (howsoever described) under the KEXIM Guarantee; or |
(ii) | exercising any of the rights, powers, discretions or remedies vested in it under the KEXIM Guarantee or by law. |
14.6 | Interest |
14.7 | Continuation of indemnities |
14.8 | Exclusion of liability |
14.9 | Sanctions Indemnity |
(a) | Each Obligor shall indemnify and hold harmless any Finance Party for any and all claims, losses, damages, liabilities, expenses and costs of whatever nature, including reasonable attorneys' fees and expenses, arising out of such Obligor's, including its owners, officers, employees, and agents, non-compliance with any Sanctions laws or connected with such noncompliance, incurred by such Finance Party as a result of such Obligor's violation of its obligations under this Agreement. |
(b) | In relation to each Lender that notifies the Administration Agent to this effect (each a Restricted Lender ), this Clause 14.9 shall only apply for the benefit of that Restricted Lender |
15 | Mitigation by the Lenders |
15.1 | Mitigation |
(a) | Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 7.1 ( Illegality ), or Clause 13 ( Increased Costs ) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office. |
(b) | Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents. |
15.2 | Limitation of liability |
(a) | The Borrower shall promptly indemnify each Finance Party for all costs and expenses incurred by that Finance Party as a result of steps taken by it under Clause 15.1 ( Mitigation ). |
(b) | A Finance Party is not obliged to take any steps under Clause 15.1 ( Mitigation ) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it. |
16 | Costs and expenses |
16.1 | Transaction expenses |
(a) | this Agreement, the Hedging Master Agreements and any other documents referred to in any Finance Document; |
(b) | any other Finance Documents executed or proposed to be executed after the date of this Agreement including any executed to provide additional security under Clause 24 ( Minimum security value ); or |
(c) | any Security Interest expressed or intended to be granted by a Finance Document; |
16.2 | Amendment costs |
16.3 | Enforcement and preservation costs |
(a) | the enforcement of, or the preservation of any rights under, any Finance Document and the K-sure Insurance Policies and any proceedings initiated by or against any Indemnified Person and as a consequence of holding the Collateral or enforcing those rights and any proceedings instituted by or against any Indemnified Person as a consequence of taking or holding the Security Documents or enforcing those rights; |
(b) | any valuation carried out under Clause 24 ( Minimum security value ); or |
(c) | any inspection carried out under Clause 22.7 ( Inspection and notice of drydockings ) or any survey carried out under Clause 22.16 ( Survey report ), in each case limited to once per year per Ship provided no Event of Default has occurred and is continuing. |
17 | Representations |
17.1 | Status |
(a) | Each Obligor is duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation as a corporation or limited liability company. |
(b) | Each Obligor has the power and authority to carry on its business as it is now being conducted and to own its property and other assets. |
17.2 | Binding obligations |
17.3 | Power and authority |
(a) | Each Obligor has the power and authority to enter into, perform and deliver and comply with its obligations under, and has taken all necessary action to authorize its entry into, each Transaction Document to which it is or is to be a party. |
(b) | No limitation on any Obligor's powers to borrow, create security or give guaranties will be exceeded as a result of any transaction under, or the entry into of, any Transaction Document to which such Obligor is, or is to be, a party. |
17.4 | Non-conflict |
(a) | any law or regulation applicable to any Obligor; |
(b) | the Constitutional Documents of any Obligor; or |
(c) | any agreement or other instrument binding upon any Obligor or its or any other Obligor's assets, or constitute a default or termination event (however described) under any such agreement or instrument or result in the creation of any Security Interest (save for a Permitted Maritime Lien or under a Security Document) on any Obligor's assets, rights or revenues. |
17.5 | Validity and admissibility in evidence |
(a) | All authorizations required or desirable: |
(i) | to enable each Obligor lawfully to enter into, exercise its rights and comply with its obligations under each Transaction Document to which it is a party; |
(ii) | to make each Transaction Document to which it is a party admissible in evidence in its Pertinent Jurisdiction; and |
(iii) | to ensure that each of the Security Interests created under the Security Documents has the priority and ranking contemplated by therein, |
(b) | All authorizations necessary for the conduct of the ordinary course of business of each Obligor have been obtained or effected and are in full force and effect if failure to obtain or effect those authorizations might result in a Material Adverse Change. |
17.6 | Governing law and enforcement |
(a) | The choice of New York law or any other applicable law as the governing law of any Transaction Document should be recognized and enforced in each Obligor's jurisdiction of incorporation or formation. |
(b) | Any judgment obtained in a New York court of proper jurisdiction against an Obligor in respect of a Finance Document should be recognized and enforced in each Obligor's jurisdiction of incorporation or formation subject to any statutory or other conditions or limitations of such jurisdiction. |
17.7 | Information |
(a) | To the best of any Obligor's knowledge, all written Information was true and accurate in all material respects at the time it was given or made. |
(b) | To the best of any Obligor's knowledge, there are no facts or circumstances or any other information which could make the Information incomplete, untrue, inaccurate or misleading in any material respect. |
(c) | To the best of any Obligor's knowledge, the Information does not omit anything which could make the Information incomplete, untrue, inaccurate or misleading in any material respect. |
(d) | All projections, forecasts or expressions of intention contained in the Information and the assumptions on which they are based have been arrived at after due and careful inquiry and consideration and were believed to be reasonable by the person who provided that Information as at the date it was given or made to the extent that they have been provided directly by an Obligor. |
(e) | For the purposes of this Clause 17.7, " Information " means: any information provided by any Obligor or, with respect to the Borrower, any other entity required to be treated as a subsidiary in its consolidated accounts in accordance with GAAP and/or any applicable law to any Finance Party in connection with the Transaction Documents or the transactions referred to in them. |
17.8 | Original Financial Statements |
(a) | The Original Financial Statements are an accurate and fair representation of the financial condition, result of operations and cash flows of the Obligors, on a consolidated basis, and were prepared in accordance with GAAP; and |
(b) | There has been no Material Adverse Change since the date of the Original Financial Statements. |
17.9 | Pari passu ranking |
17.10 | Ranking and effectiveness of security |
17.11 | No insolvency |
17.12 | No Default |
(a) | No Default is continuing or is reasonably likely to result from the making of any Utilization or the entry into, the performance of, or any transaction contemplated by, any Transaction Document. |
(b) | No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, a determination having been made or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any Obligor or any Subsidiary of any Obligor, or to which any Obligor's or any of its Subsidiaries' assets are subject, which might result in a Material Adverse Change. |
17.13 | No proceedings pending or threatened |
(a) | No litigation, arbitration or administrative, regulatory or criminal proceedings or investigations of, or before, any court, arbitral body or agency have been started or (to the best of any Obligor's knowledge and belief having made due and careful inquiries) threatened against any Upstream Guarantor or the Borrower. |
(b) | No litigation, arbitration or administrative, regulatory or criminal proceedings or investigations of, or before, any court, arbitral body or agency which, if adversely determined are reasonably likely to result in a Material Adverse Change, have, to the best of any Obligor's knowledge and belief having made due and careful inquiries, been started or threatened against the Facility Guarantor. |
17.14 | No breach of laws |
(a) | No Obligor or, to the best of such Obligor's knowledge, Subsidiary of any Obligor has breached in any respect any law or regulation, which breach has or is reasonably likely to result in a Material Adverse Change. |
(b) | No labor dispute is current or, to the best of any Obligor's knowledge and belief (having made due and careful inquiry), threatened against any Obligor or Subsidiary of any Obligor which might result in a Material Adverse Change. |
17.15 | Environmental matters |
(a) | To the best of any Obligor's knowledge, no Environmental Law applicable to any Ship and/or any Obligor has been violated. |
(b) | To the extent applicable to any Ship, all consents, licenses and approvals required under such Environmental Laws have been obtained and are currently in force. |
(c) | No Environmental Claim has been made or, to the best of any Obligor's knowledge is threatened or is pending against any Obligor, any Subsidiary of the Obligors or any Ship and there has been no Environmental Incident which has given or might give rise to such a claim. |
17.16 | Taxes |
(a) | All payments which an Obligor is liable to make under the Finance Documents to which it is a party can properly be made without deduction or withholding for or on account of any tax payable under any law of any Pertinent Jurisdiction applicable as of the Closing Date excluding any FATCA Deduction, and provided that each Lender provides a form described in Clause 12.7 claiming a zero percent U.S. Federal withholding tax rate. |
(b) | Each Obligor has timely filed or has caused to be filed all tax returns and other reports that it is required by law or regulation to file in any Pertinent Jurisdiction, and has paid or caused to be paid all taxes, assessments and other similar charges that are due and payable in any Pertinent Jurisdiction, other than taxes and charges: |
(i) | which (A) are not yet due and payable or (B) are being contested in good faith by appropriate proceedings and for which adequate reserves have been established and as to which such failure to have paid such tax does not create any risk of sale, forfeiture, loss, confiscation or seizure of a Ship or of criminal liability; or |
(ii) | the non-payment of which could not reasonably be expected to have a Material Adverse Change on the financial condition of such Obligor. |
(c) | The charges, accruals, and reserves on the books of each Obligor respecting taxes are adequate in accordance with GAAP. |
(d) | No material claim for any tax has been asserted against an Obligor by any Pertinent Jurisdiction or other taxing authority other than claims that are included in the liabilities for taxes in the most recent balance sheet of such person or disclosed in the notes thereto, if any. |
(e) | The execution, delivery, filing and registration or recording (if applicable) of the Finance Documents and the consummation of the transactions contemplated thereby will not cause any of the Finance Parties to be required to make any registration with, give any notice to, obtain any license, permit or other authorization from, or file any declaration, return, report or other document with any governmental authority in any Pertinent Jurisdiction. |
(f) | No taxes are required by any governmental authority in any Pertinent Jurisdiction to be paid with respect to or in connection with the execution, delivery, filing, recording, performance or enforcement of any Finance Document. |
(g) | The execution, delivery, filing, registration, recording, performance and enforcement of the Finance Documents by any of the Finance Parties will not cause such Finance Parties to be subject to taxation under any law or regulation of any governmental authority in any Pertinent Jurisdiction of any Obligor. |
(h) | It is not necessary for the legality, validity, enforceability or admissibility into evidence of this Agreement or any other Finance Document that any stamp, registration or similar taxes be paid on or in relation to this Agreement or any of the other Finance Documents. |
17.17 | Security and Financial Indebtedness |
(a) | No Security Interest exists over all or any of the present assets of any Obligor (except for any Permitted Security Interests and any Security Interests granted by the Facility Guarantor in connection with the RBS Facility Agreement). |
(b) | No Obligor has any Financial Indebtedness outstanding in breach of this Agreement. |
17.18 | Ship status |
(a) | registered in the name of the relevant Upstream Guarantor through the relevant Registry as a ship under the laws and flag of the relevant Flag State; |
(b) | operationally seaworthy and in every way fit for service; |
(c) | classed with the relevant Classification free of all overdue requirements and recommendations of the relevant Classification Society; and |
(d) | insured in the manner required by the Finance Documents. |
17.19 | Legal and beneficial ownership |
(a) | Each Obligor is the sole legal and beneficial owner of the respective assets over which it purports to grant a Security Interest under the Security Documents. |
(b) | The Borrower is a wholly-owned subsidiary of the Facility Guarantor. |
(c) | Each Upstream Guarantor is a wholly-owned subsidiary of the Borrower. |
17.20 | Shares |
(a) | All of the Equity Interests of the Borrower and each Upstream Guarantor have been validly issued, are fully paid, non-assessable and free and clear of all Security Interests other than Permitted Security Interests. |
(b) | None of the Equity Interests of the Borrower or any Upstream Guarantor are subject to any existing option, warrant, call, right, commitment or other agreement of any character to which the Borrower or any Upstream Guarantor is a party requiring, and there are no Equity Interests of the Borrower or any Upstream Guarantor outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional Equity Interests of the Borrower or any Upstream Guarantor or other Equity Interests convertible into, exchangeable for or evidencing the right to subscribe for or purchase Equity Interests of the Borrower or any Upstream Guarantor. |
17.21 | Accounting Reference Date |
17.22 | No adverse consequences |
(a) | To the best of any Obligor's knowledge, it is not necessary under the laws of any Obligor's jurisdiction of incorporation or formation: |
(i) | in order to enable any Finance Party to enforce its rights under any Finance Document; or |
(ii) | by reason of the execution of any Finance Document or the performance by any Obligor of its obligations under any Finance Document to which it is, or is to be, a party, |
(b) | To the best of any Obligor's knowledge, no Finance Party is or will be deemed to be resident, domiciled or carrying on business in any Pertinent Jurisdiction by reason only of the execution, performance and/or enforcement of any Finance Document. |
17.23 | Copies of documents |
17.24 | No breach of Charter Documents or Shipbuilding Contracts |
17.25 | No immunity |
17.26 | Ship's employment |
(a) | if applicable, have been delivered and accepted for service, under its Long Term Charter; |
(b) | if applicable, be employed in the Approved Pooling Arrangement or such other pooling arrangement approved by the Required Lenders, such approval not to be unreasonably withheld or delayed; and |
(c) | be free of any charter commitment which, if entered into after that date, would require approval under the Finance Documents. |
17.27 | Rebates; commissions |
17.28 | Compliance |
17.29 | Employees |
17.30 | ERISA Compliance |
(a) | Except for those that would not, in the aggregate, reasonably be expected to have a Material Adverse Change, (i) each Benefit Plan and Foreign Benefit Plan is in compliance with applicable provisions of ERISA, the Code and other requirements of law, (ii) there are no pending (or to the knowledge of any Obligor, threatened) claims (other than routine claims for benefits in the normal course), sanctions, actions, lawsuits or other proceedings or investigation involving any Benefit Plan or Foreign Benefit Plan, (iii) no ERISA Event is reasonably expected to occur, and (iv) no Foreign Benefit Plan has any unfunded liability that is not accrued for to the extent required under generally accepted accounting principles in the appropriate financial statements. |
(b) | On the Closing Date, no ERISA Event has occurred in connection with which obligations and liabilities (contingent or otherwise) remain outstanding or could reasonably be expected to result in liability to any Obligor or any of its Subsidiaries in excess of $500,000. |
17.31 | No Money Laundering |
(a) | To the knowledge of each Obligor, it and each Subsidiary of the Obligors have conducted and are conducting their businesses in compliance with Anti-Bribery and Corruption Laws. |
(b) | To the knowledge of each Obligor, it and each Subsidiary of the Obligors have instituted and maintained systems, controls, policies and procedures designed to: |
(i) | to prevent and detect incidences of bribery and corruption; and |
(ii) | to promote and achieve compliance with Anti-Bribery and Corruption Laws including, but not limited to, ensuring thorough and accurate books and records, and utilization of commercially reasonable efforts to ensure that Affiliates acting on behalf of the Obligor or its Subsidiaries shall act in compliance with Anti-Bribery and Corruption Laws. |
(c) | To the knowledge of each Obligor, neither any Obligor nor any of their Subsidiaries, is (or ought reasonably to be) aware, that any of their respective directors, officers, employees or agents has: |
(i) | directly or indirectly, made, offered to make, promised to make or authorized the offer, payment, or giving of, any value, including a financial or other advantage for an improper purpose within the meaning of, the Anti-Bribery and Corruption Laws; |
(ii) | directly or indirectly used any corporate funds for any contribution, gift, entertainment or other expense relating to political office or activity in violation of the Anti-Bribery and Corruption Laws; |
(iii) | made any direct or indirect payment or transfer of value to any public official or any company employee from corporate funds in violation of Anti-Bribery and Corruption Laws; |
(iv) | received directly or indirectly any bribe, rebate, payoff, influence payment, kickback or other payment or transfer of value prohibited under Anti-Bribery and Corruption Laws; or |
(v) | been or is subject to any litigation, arbitration or administrative, regulatory or criminal proceedings or investigation with regard to any actual or alleged unlawful payment, improper transfer of value or other violation of Anti-Bribery and Corruption Laws. |
(d) | No Obligor nor any of their Subsidiaries will directly or indirectly use the proceeds of the Facility for any purpose which would be in violation of the Anti-Bribery and Corruption Laws. |
(e) | Upon reasonable belief that any Obligor or Subsidiary thereof may have violated its representations, warranties, or covenants contained in this Clause 17.32, any Lender may instigate an audit of the Obligor or Subsidiary on not less than seven (7) days' notice. Any Obligor or Subsidiary receiving such notice shall provide reasonable assistance in such audit, including, but not limited to, making all requested books, records, accounts, and personnel requested reasonably available to those conducting the audit. |
17.33 | No other material events or facts |
17.34 | Defense |
17.35 | Times when representations are made |
(a) | All of the representations and warranties set out in this Clause 17 (other than Ship Representations) are deemed to be made on the dates of: |
(i) | this Agreement; |
(ii) | each Utilization Request; |
(iii) | each Utilization; and |
(iv) | each Release Date. |
(b) | The Repeating Representations are deemed to be repeated on the first day of each Interest Period. |
(c) | All of the Ship Representations are deemed to be made and repeated on the first day of the Mortgage Period for the relevant Ship. |
(d) | Each representation or warranty deemed to be made after the date of this Agreement shall be deemed to be made by reference to the facts and circumstances then existing at the date the representation or warranty is deemed to be made (and with respect to Clause 17.8 ( Original Financial Statements ), such representation or warranty shall be deemed to be repeated with reference to the most recent Annual Financial Statements or, as the case may be, Semi-annual Financial Statements delivered under Clause 18.1 ( Financial statements )). |
18 | Information undertakings |
18.1 | Financial statements |
(a) | Whether or not the Facility Guarantor is then subject to Sections 13(a) or 15(d) of the Exchange Act, the Facility Guarantor shall prepare and deliver to the Administrative Agent: |
(i) | as soon as reasonably practicable and in any event within 120 days after the Accounting Reference Date, an annual report on Form 20-F (or any successor form) containing the Facility Guarantor's Annual Financial Statements and other information required to be contained therein for the immediately preceding fiscal year (including a balance sheet and a statement of profit and loss and cash flow for such fiscal year); |
(ii) | as soon as reasonably practicable and in any event within 45 days after the end of each fiscal quarter, quarterly reports on Form 6-K (or any successor form) containing the Facility Guarantor's Quarterly Financial Statements for and as of the end of such fiscal quarter; |
(iii) | a Compliance Certificate together with the quarterly reports that the Facility Guarantor delivers in (ii) above; |
(iv) | on May 15, 2015 and, at all times thereafter, prior to each financial year, a consolidated budget (consisting of a profit and loss statement, a cash flow statement and a balance sheet for the upcoming financial year) with respect to the Facility Guarantor and the Borrower, and a profit and loss statement with respect to each Upstream Guarantor; and |
(v) | such further relevant financial information (including without limitation fleet employment, operating expenses and debt levels per Ship) as may be reasonably requested by the Administrative Agent, each to be in such form as the Administrative Agent may reasonably request; |
(b) | The Borrower and each Upstream Guarantor shall supply to the Administrative Agent, within 45 days after the end of each fiscal quarter, the Borrower's and Upstream Guarantor's Management Accounts for the immediately preceding fiscal quarter. |
(c) | The Borrower and each Upstream Guarantor shall supply to the Administrative Agent, within 120 days after the end of each fiscal year, the Borrower's and Upstream Guarantor's Management Accounts for the immediately preceding fiscal year. |
18.2 | Provision and contents of Compliance Certificate |
(a) | The Facility Guarantor shall deliver a Compliance Certificate to the Administrative Agent within three (3) Business Days of delivery of each set of the Facility Guarantor's Annual Financial Statements and the Facility Guarantor's Quarterly Financial Statements, as applicable. |
(b) | Each Compliance Certificate shall, among other things, set out (in reasonable detail) computations as to compliance with Clause 19 ( Financial Covenants ). |
(c) | Each Compliance Certificate shall be signed by the chief financial officer of the Facility Guarantor or, in his or her absence, by the chief executive officer of the Facility Guarantor, as applicable. |
18.3 | Requirements as to financial statements |
(a) | The Facility Guarantor shall procure that each set of the Facility Guarantor's Annual Financial Statements and the Facility Guarantor's Quarterly Financial Statements includes a profit and loss account, a balance sheet and a cash flow statement and that, in addition each set of the Facility Guarantor's Annual Financial Statements shall be audited by the Auditors. |
(b) | The Borrower and each Upstream Guarantor shall procure that the Borrower's and Upstream Guarantor's Management Accounts includes a profit and loss account for each Ship. |
(c) | Each set of the Facility Guarantor's Annual Financial Statements, the Facility Guarantor's Quarterly Financial Statements and the Borrower and Upstream Guarantor's Quarterly Management Accounts shall be supplemented, to the extent required by GAAP, by up to date details of any time-charter hire commitments and all off balance sheet commitments. |
(d) | Each set of financial statements delivered pursuant to Clause 18.1 ( Financial statements ) shall: |
(i) | accurately and fairly represent the financial condition, result of operations and cash flows of the Facility Guarantor, and be prepared in accordance with GAAP; and |
(ii) | in the case of annual audited financial statements, not be the subject of any qualification in the Auditors' opinion. |
(e) | The Facility Guarantor shall procure that each set of financial statements delivered pursuant to Clause 18.1 ( Financial statements ) shall be prepared using accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements. Any reference in this Agreement to any 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. |
18.4 | Information: miscellaneous |
(a) | following the occurrence of an Event of Default, copies of all documents dispatched by any Obligor to its creditors generally (or any class of them); |
(b) | promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Obligor or any Subsidiary of any Obligor; |
(c) | promptly, such information as the Administrative Agent may reasonably require about the Collateral and compliance of the Obligors or any manager or charterer of any Ship ; and |
(d) | promptly on request, such further information regarding the financial condition, assets and operations of the Borrower and/or any other Obligor (including, without limitation, any information regarding each individual Ship's, the Obligors', or the Borrower's Subsidiaries' cash flow forecasts) as any Finance Party through the Administrative Agent may reasonably request. |
18.5 | Notification of Default |
(a) | The Borrower shall notify the Administrative Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon the Borrower or any Obligor becoming aware of its occurrence (unless the Borrower or that Obligor is aware that a notification has already been provided to the Administrative Agent). |
(b) | Promptly upon a request by the Administrative Agent, the Borrower shall supply to the Administrative Agent a certificate signed by a director or officer of the Facility Guarantor on its behalf certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it). |
18.6 | "Know your customer" checks |
(a) | If: |
(i) | the existing law; 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 or the composition of the shareholders or members of an Obligor after the date of this Agreement; or |
(iii) | a proposed assignment by a Lender or a Swap Bank of any of its rights under this Agreement or any Hedging Contract to a party that is not already a Lender or a Swap Bank prior to such assignment, |
(b) | Each Finance Party shall, promptly upon the request of the Administrative Agent or the Security Agent, supply or procure the supply of, such documentation and other evidence as is reasonably requested by the Administrative Agent or the Security Agent (for itself) in order for it 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. |
19 | Financial Covenants |
19.1 | Financial definitions |
(a) | securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) |
(b) | time deposits, certificates of deposit or deposits in the interbank market of any commercial bank of recognized standing organized under the laws of the United States of America, any state thereof or any foreign jurisdiction having capital and surplus in excess of $500,000,000; and |
(c) | such other securities or instruments as the Required Lenders shall agree in writing. |
(a) | plus , to the extent deducted in computing the net income of the Facility Guarantor for that accounting period, the sum, without duplication, of: |
(i) | all federal, state, local and foreign income taxes and tax distributions; |
(ii) | Consolidated Net Interest Expense; |
(iii) | depreciation, depletion, amortization of intangibles and other non-cash charges or non-cash losses (including non-cash compensation expense, non-cash transaction expenses and the amortization of debt discounts) and any extraordinary losses not incurred in the ordinary course of business; |
(iv) | expenses incurred in connection with a special or intermediate survey of a Ship during such period; and |
(v) | any drydocking expenses; and |
(b) | minus , to the extent added in computing the consolidated net income of the Facility Guarantor for that accounting period, (i) any non-cash gains and (ii) any extraordinary gains on asset sales not incurred in the ordinary course of business. |
(a) | all Financial Indebtedness; and |
(b) | all obligations to pay a specific purchase price for goods or services (other than vessel newbuildings) whether or not delivered or accepted (including take-or-pay and similar obligations) which in accordance with GAAP would be shown on the liability side of a balance sheet; |
19.2 | Financial condition |
(a) | Minimum Liquidity : At all times it maintains Consolidated Liquidity at least equal to the Liquidity Reserve Required Balance, with such amounts to be held in an Earnings Account pursuant to Clause 25.1 ( Earnings Accounts ); |
(b) | Maximum Leverage : At all times it maintains a ratio of Consolidated Net Debt to Consolidated Total Capitalization of not more than 0.60 to 1.00; |
(c) | Minimum Interest Coverage : It maintains a ratio of Consolidated EBITDA to Consolidated Net Interest Expense of (i) greater than or equal to: 1.00 for the 12-month period starting in the calendar quarter following the one in which Delivery of the first Ship occurs, (ii) 1.50 in the subsequent year, (iii) 2.00 in the third year following the initial period, and (iv) 2.50 thereafter; |
(d) | Minimum Stockholder's Equity : At all times it maintains, on a consolidated basis, minimum stockholder's equity equal to the aggregate of (i) $400,000,000, (ii) 50% of any new equity raised after Closing Date and (iii) 25% of the positive net income for the immediately preceding financial year; and |
(e) | Current Assets divided by Current Liabilities : At all times it maintains, on a consolidated basis, a ratio of Current Assets to Current Liabilities which is greater than 1.00. |
19.3 | Financial testing |
20 | General undertakings |
20.1 | Use of proceeds |
(a) | The proceeds of Utilizations will be used exclusively for the purposes specified in Clause 3 ( Purpose ). |
(b) | The Obligors shall not knowingly, and, after inquiry, permit or authorize any other person to, directly or indirectly, make available any proceeds of the Facility to fund or facilitate trade, business or other activities (i) involving or for the benefit of any Restricted Person or (ii) in any other manner that could result in any Obligor or a Finance Party being in breach of any Sanctions or becoming a Restricted Person. |
20.2 | Authorizations |
(a) | enable it to perform its obligations under the Transaction Documents; |
(b) | ensure the legality, validity, enforceability or admissibility in evidence of any Transaction Document; and |
(c) | own its property and other assets and to carry on its business where failure to have such authorization has, or might result in, a Material Adverse Change. |
20.3 | Compliance with laws |
(a) | Each Obligor and each Subsidiary of the Obligors will comply in all respects with all laws, regulations, including but not limited to Environmental Laws , and Sanctions to which they may be subject, and Anti-Bribery and Corruption Laws. |
(b) | Each Obligor and each Subsidiary of the Obligors shall: |
(i) | conduct its businesses in compliance with Anti-Bribery and Corruption Laws; maintain policies and procedures designed to promote and achieve compliance with all applicable laws and regulations, including but not limited to Environmental Laws and Anti-Bribery and Corruption Laws in force from time to time; and |
(ii) | use reasonable commercial efforts to ensure that any third party acting on its behalf shall act in compliance with all applicable laws and regulations, including but not limited to Environmental Laws, and Sanctions to which they may be subject, and Anti-Bribery and Corruption Laws. |
20.4 | Tax compliance |
(a) | Each Obligor and each Subsidiary of the Obligors shall pay and discharge all Taxes imposed upon it or its assets within such time period as may be allowed by law without incurring penalties unless and only to the extent that: |
(i) | such payment is being contested in good faith; |
(ii) | adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Administrative Agent under Clause 18.1 ( Financial statements ); |
(iii) | such payment can be lawfully withheld; and |
(iv) | the failure to make such payment will not result in a Security Interest on the Collateral. |
(b) | Except as approved by the Required Lenders, each Obligor and each Subsidiary of the Obligors shall maintain its residence for Tax purposes in the jurisdiction in which it is incorporated and ensure that it is not resident for Tax purposes in any other jurisdiction. |
20.5 | Change of business |
(a) | Except as approved by the Required Lenders (such approval not to be unreasonably withheld or delayed), no change will be made to the legal names of the Obligors. |
(b) | Except as approved by the Required Lenders, no substantial change will be made to the general nature of the business of the Obligors from that carried on at the date of this Agreement and, in particular, the Borrower shall not undertake or engage in any business other than the ownership, management and operation of the Ships and other vessels (including the Fleet Vessels). |
(c) | The Facility Guarantor shall remain listed on the New York Stock Exchange or another stock exchange of internationally recognized standing. |
20.6 | Merger |
20.7 | Further assurance |
(a) | Each Obligor shall, at the expense of the Obligors, promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Administrative Agent may reasonably specify (and in such form as the Administrative Agent may reasonably require); |
(i) | to perfect the Security Interests created or intended to be created by that Obligor under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other security over all or any of the assets which are, or are intended to be, the subject of the Security Documents) or for the exercise of any rights, powers and remedies of the Security Agent provided by or pursuant to the Finance Documents or by law; |
(ii) | to confer on the Security Agent Security Interests over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security Interest intended to be conferred by or pursuant to the Security Documents; |
(iii) | to facilitate the realization of the assets which are, or are intended to be, the subject of the Security Documents; and/or |
(iv) | to facilitate the accession by a Substitute to any Security Document following an assignment in accordance with Clause 30.1 ( Assignments by the Lenders ). |
(b) | Each Obligor shall, at the expense of the Obligors, take all such action as is available to it (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance of any Security Interest conferred or intended to be conferred on the Security Agent by or pursuant to the Finance Documents. |
20.8 | Negative pledge in respect of Collateral |
20.9 | Environmental matters |
(a) | The Administrative Agent will be notified as soon as reasonably practicable of any Environmental Claim being made against any Obligor, any Subsidiary of the Obligors or any Ship and of any Environmental Incident which may give rise to such a claim and will be kept regularly and promptly informed in reasonable detail of the nature of, and response to, any such Environmental Incident and the defense to any such claim. |
(b) | Environmental Laws (and any consents, licenses or approvals obtained under them) applicable to the Ships will not be violated in any material respect. |
20.10 | Pari passu ranking |
20.11 | Money Laundering |
(a) | provide the Lenders with information, certificates and any documents required by the Lenders to ensure compliance by it with any law, official requirement or other regulatory measure or procedure implemented to combat Money Laundering and corruption; and |
(b) | notify the Lenders as soon as it becomes aware of any matters evidencing that a breach by it of any law, official requirement or other regulatory measure or procedure implemented to combat Money Laundering and corruption may or is about to occur or that the person(s) who have or will receive the commercial benefit of the Agreement have changed from the date hereof. |
20.12 | Excluded Hedging Liabilities |
(a) | Notwithstanding any other provisions of this Agreement or any other Finance Document to the contrary, Hedging Liabilities guaranteed by any Guarantor, or secured by the grant of any security by such Guarantor, shall exclude all Excluded Hedging Liabilities of such Guarantor. |
(b) | Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Obligor to honor all of its obligations under this Agreement in respect of Hedging Liabilities (provided, however, that each Qualified ECP Guarantor shall only be liable under this paragraph (b) of Clause 20.12 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Agreement voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this paragraph (b) of Clause 20.12 shall remain in full force and effect until this Agreement is terminated, all amounts which may be or become payable by each Obligor under or in connection with the Finance Documents have been irrevocably and unconditionally paid or discharged in full and the Facilities have been cancelled. Each Qualified ECP Guarantor intends that this paragraph (b) of Clause 20.12 constitutes and this paragraph (b) of Clause 20.12 shall be deemed to constitute, a "keepwell, support, or other agreement" for the benefit of each other Obligor for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. |
20.13 | Sanctions generally |
(a) | Each Obligor undertakes that it and each director, officer, agent or employee is not a Restricted Person and does not act directly or indirectly on behalf of a Restricted Person. |
(b) | No Obligor shall use any revenue or benefit derived from any activity or dealing with a Restricted Person in discharging any obligation due or owing to the Finance Parties. |
(c) | Each Obligor shall procure that no proceeds from any activity or dealing with a Restricted Person are credited to any bank account held with any Finance Party in its name. |
(d) | Each Obligor shall, to the extent permitted by law, promptly upon becoming aware of them supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority. |
20.14 | Sanctions with respect to each Mortgaged Ship |
(a) | prevent any Ship from being used, directly or indirectly: |
(i) | by, or for the benefit of, any Restricted Person; and/or |
(ii) | in any trade which could expose any Lender, any Ship, any manager of the Ship, the ship's crew or the Ship's insurers to enforcement proceedings or any other consequences whatsoever arising from Sanctions; |
(b) | prevent any Ship from trading to a country or territory subject to country-wide Sanctions or carrying prohibited products that originate in a country or territory subject to country-wide Sanctions (including at the date of this Agreement, Cuba, Burma/Myanmar, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine); |
(c) | prevent any Ship from trading with any other Restricted Person; and |
(d) | prevent any Ship from carrying any U.S. or E.U.-origin defense related articles to any country subject to a U.S., E.U. or U.N. arms embargo. |
21 | Dealings with Ship |
21.1 | Ship's name and registration |
(a) | Other than on the Delivery Date as contemplated by this Agreement, each Ship's name shall only be changed after 30 days' prior written notice to the Administrative Agent. |
(b) | Each Ship shall be permanently registered with the relevant Registry under the laws of its Flag State. Except with the prior written approval of the Administrative Agent (acting on behalf of the Required Lenders), the Ship shall not be registered under any other flag or at any other port or fly any other flag (other than that of its Flag State). If that registration is for a limited period, it shall be renewed at least 45 days before the date it is due to expire and the Administrative Agent shall be notified of that renewal at least 30 days before that date. |
(c) | Nothing will be done and no action will be omitted if that might result in such registration being forfeited or imperiled or a Ship being required to be registered under the laws of another state of registry. |
21.2 | Performance of Shipbuilding Contracts |
21.3 | Notification of certain events |
21.4 | Sale or other disposal of a Ship |
21.5 | Manager |
21.6 | Copy of Mortgage on board |
21.7 | Notice of Mortgage |
(a) | A framed or laminated printed notice of each Ship's Mortgage shall be prominently displayed in the navigation room and in the Master's cabin of such Ship. The notice must be in plain type and read as follows: |
(b) | No-one will have any right, power or authority to create, incur or permit to be imposed upon a Ship any lien whatsoever other than for Permitted Maritime Liens. |
21.8 | Conveyance on default |
21.9 | Chartering |
(a) | Except with consent of the Required Lenders, such consent not to be unreasonably withheld or delayed, none of the Upstream Guarantors shall enter into a charter commitment for a Ship which is a bareboat or demise charter or any other contract which passes possession and control of any Ship to another person. In the case of bareboat charter arrangements with respect to 10 Ships or more in aggregate, consent of all Lenders, such consent not to be unreasonably withheld or delayed, shall be required. |
(b) | Each Upstream Guarantor shall promptly upon entering into the same, provide the Finance Parties with copies of any Long Term Charter and shall execute and deliver in favor of the Security Agent a Charter Assignment (and all documents and instruments required thereunder). |
21.10 | Lay up |
21.11 | Pooling of Earnings |
21.12 | Payment of Earnings |
22 | Condition and operation of Ship |
22.1 | Repair |
22.2 | Modification |
22.3 | Removal of parts |
22.4 | Third party owned equipment |
22.5 | Maintenance of class; compliance with laws and codes |
(a) | Each Ship's class shall be the relevant Classification with the relevant Classification Society and such Classification shall, except as approved by the Required Lenders, be maintained free of all conditions of class (or equivalent) of the relevant Classification Society. |
(b) | The relevant Upstream Guarantor shall duly execute and deliver to the relevant Classification Society of the relevant Ship from time to time, a Classification Letter in respect of such Ship and shall use commercially reasonable efforts to procure that the Classification Society shall, upon receipt of the Classification Letter, promptly execute and deliver to the Administrative Agent the undertaking appended to the Classification Letter. |
(c) | Each Ship and every person who owns, operates, manages or charters a Ship shall comply with all laws applicable to vessels registered in its Flag State or which for any other reason apply to such Ship or its condition or operation (including with respect to Sanctions and possession of trading certificates for such Ship which remain in force). |
(d) | The relevant Upstream Guarantor shall grant electronic access to each Ship's class records directly by the Classification Society or indirectly via the account manager of such Upstream Guarantor and shall designate the Administrative Agent as a user or administrator of the system under its account. |
22.6 | Surveys |
22.7 | Inspection and notice of drydockings |
22.8 | Prevention of arrest |
22.9 | Release from arrest |
22.10 | Information about Ship |
22.11 | Notification of certain events |
(a) | any damage to a Ship where the cost of the resulting repairs may exceed the Major Casualty Amount or which results in, or may have resulted in, a Material Adverse Change; |
(b) | any occurrence which may result in a Ship becoming a Total Loss; |
(c) | any requisition of a Ship for hire; |
(d) | any Environmental Incident involving a Ship and Environmental Claim being made in relation to such an incident; |
(e) | any withdrawal or threat to withdraw any applicable Ship operating certificate; |
(f) | any material requirement or recommendation made in relation to a Ship by any insurer or the Classification Society or by any competent authority which is not, or cannot be, complied with in the manner or time required or recommended; |
(g) | any arrest or detention of a Ship (in such case, the Administrative Agent (for further notification to the Lenders) shall be provided with a report surrounding the incident giving rise to the arrest or detention not later than 7 days after such incident) or any exercise or purported exercise of a lien or other claim on such Ship or its Earnings or Insurances; |
(h) | any material claim, disposal of insurance claim in relation to a Ship; or |
(i) | any Material Event. |
22.12 | Payment of outgoings |
22.13 | Evidence of payments |
(a) | the wages and allotments of a Ship's crew are being promptly and regularly paid; |
(b) | all deductions from its crew's wages in respect of any applicable Tax liability are being properly accounted for; and |
(c) | a Ship's master has no claim for disbursements other than those incurred by him in the ordinary course of trading on the voyage then in progress. |
22.14 | Codes |
(a) | any actual withdrawal of any certificate issued in accordance with any such code which is or may be applicable to a Ship or its operation; and |
(b) | the receipt of notification that any application for such a certificate has been refused. |
22.15 | Repairers' liens |
22.16 | Survey report |
(a) | With respect to any Ships which are not newbuildings (for the avoidance of doubt, Ship 1 and Ship 2 shall be deemed to be newbuildings for purposes of this clause), the Security Agent (with a copy to the Administrative Agent) shall be given an initial survey report acceptable to |
(b) | As soon as reasonably practical after the Security Agent requests it, the Security Agent (with a copy to the Administrative Agent) shall be given a report, in form and substance reasonably satisfactory to the Required Lenders, on the seaworthiness and/or safe operation of a Ship, from approved third-party surveyors or inspectors reasonably acceptable to the Security Agent. If any recommendations are made in such a report they shall be complied with in the way and by the time recommended in the report. |
22.17 | Lawful use |
(a) | in any way or in any activity which is unlawful under international law or the domestic laws of any relevant country; |
(b) | in carrying illicit or prohibited goods, |
(c) | in a way which may make it liable to be condemned by a prize court or destroyed, seized or confiscated; or |
(d) | in carrying contraband goods, |
22.18 | War zones |
22.19 | Nuclear material |
22.20 | Civil merchant trading |
23 | Insurance |
23.1 | Insurance terms |
23.2 | Coverage required |
(a) | against fire and usual marine risks (including excess risks) and for War and Allied Risks (including blocking and trapping (on the terms of the London Blocking and Trapping addendum LPO 444 3/84 or similar arrangement), war protection and indemnity risks, piracy risks and terrorism risks) in each case on an agreed value basis, for at least its minimum hull cover and no less than its market value; |
(b) | against P&I risks, complying with all rules for the time being applied by the relevant protection and indemnity association, for the highest amount then available in the insurance market for vessels of similar age, size and type as such Ship (but, in relation to liability for oil pollution, for an amount equal to the highest amount available which is currently $1,000,000,000) and a freight, demurrage and defense cover; |
(c) | against such other risks and matters which are consistent with market practice also taking account of the creditworthiness of the Facility Guarantor; |
(d) | on terms which comply with the other provisions of this Clause 23. |
23.3 | Placing of cover |
(a) | in the name of the relevant Upstream Guarantor and (in the case of the Ship's hull cover) no other person (unless such other person is approved and, if so required by the Administrative Agent or the Security Agent, has duly executed and delivered a first priority assignment of its interest in the Ship's Insurances to the Security Agent in an approved form and provided such |
(b) | in dollars or another currency approved by the Administrative Agent (with the instructions of the Required Lenders); |
(c) | arranged through approved brokers or direct with approved insurers or protection and indemnity or war risks associations; and |
(d) | on such terms and with such brokers/insurers/clubs as the Administrative Agent (with the instructions of the Required Lenders) from time to time may approve, such approval not to be unreasonably withheld or delayed. |
23.4 | Deductibles |
23.5 | Mortgagee's insurance |
(a) | a mortgagee's interest insurance and a mortgagee's interest additional perils (pollution risks) insurance for the benefit of the Finance Parties for an aggregate amount up to 120% of the Loan; and |
(b) | any other insurance cover which the Security Agent reasonably requires in respect of any Finance Party's interests and potential liabilities (whether as mortgagee of the Ship or beneficiary of the Security Documents), including but not limited to the insurance coverage required by Clause 23.2 ( Coverage required ). |
23.6 | Fleet liens, set off and cancellations |
(a) | set off against any claims in respect of the Ship any premiums due in respect of any of such other vessels insured (other than other Mortgaged Ships); or |
(b) | cancel that cover because of non-payment of premiums in respect of such other vessels, |
23.7 | Payment of premiums |
23.8 | Details of Insurances |
(a) | At least fifteen (15) days before the Delivery Date of any Ship, the Security Agent (with copy to the Administrative Agent) shall be told of the names of the brokers, insurers and associations proposed to be used for the placement of the Insurances and the amounts, risks and terms in, against and on which the Insurances are proposed to be effected. |
(b) | At least fourteen (14) days before any of the Insurances are due to expire, the Security Agent (with copy to the Administrative Agent) shall be told of the names of the brokers, insurers and associations proposed to be used for the renewal of such Insurances (if such brokers, insurers and associations shall be different to those previously notified to the Security Agent (with copy to the Administrative Agent)) and the amounts, risks and terms in, against and on which the Insurances are proposed to be renewed. |
23.9 | Instructions for renewal |
23.10 | Confirmation of renewal |
23.11 | P&I Guarantees |
23.12 | Insurance documents |
23.13 | Letters of undertaking |
23.14 | Insurance Notices and Loss Payable Clauses |
23.15 | Insurance correspondence |
23.16 | Qualifications and exclusions |
23.17 | Independent report |
23.18 | Collection of claims |
23.19 | Employment of Ship |
23.20 | Declarations and returns |
23.21 | Application of recoveries |
23.22 | Settlement of claims |
23.23 | Change in insurance requirements |
23.24 | Failure to insure |
24 | Minimum security value |
24.1 | Valuation of assets |
24.2 | Valuation frequency |
(a) | Initial valuations of each Ship (the " Initial Valuations ") shall be conducted in accordance with this Clause 24 and shall be done not earlier than 30 days but not later than 5 days before each Utilization Date . |
(b) | So long as no Default has occurred and is continuing, valuations of each Mortgaged Ship and each such other asset in accordance with this Clause 24 shall be conducted semi-annually, with the first such valuation, following the Initial Valuations, occurring every 6 months commencing on June 30, 2015, and shall be provided by the Borrower to the Administrative Agent within 1 month of June 30 and December 31 of each respective year. |
(c) | Notwithstanding clauses (a) and (b) above, for Ships built in the same year and with similar specifications, only 1 valuation is required for all such Ships. |
(d) | Following the occurrence of a Default which is continuing, the Administrative Agent may request valuations at any time. |
(e) | The Administrative Agent may at any time request additional valuations from Approved Valuers for any Mortgaged Ship (based on objective grounds communicated to the Borrower before such request for valuation). |
(f) | All valuations for the Ships must be addressed to the Administrative Agent. |
24.3 | Expenses of valuation |
24.4 | Valuations procedure |
24.5 | Currency of valuation |
24.6 | Basis of valuation |
(a) | without physical inspection (unless required by the Required Lenders if an Event of Default has occurred and is continuing); |
(b) | on the basis of a sale for prompt delivery for a price payable in full in cash on delivery at arm's length on normal commercial terms between a willing buyer and a willing seller; and |
(c) | without taking into account any charter commitment. |
24.7 | Information required for valuation |
24.8 | Approval of valuers |
24.9 | Intentionally omitted |
24.10 | Appointment and Number of valuers |
24.11 | Security shortfall |
(a) | provide additional security over other assets, acceptable to the Required Lenders, in accordance with this Clause 24, provided always that if such other asset shall be a vessel such vessel shall be valued as if it were a Mortgaged Ship; and/or |
(b) | prepay part of the Loan under Clause 7.4(a)(ii) ( Voluntary prepayment ); and/or |
(c) | pay such additional amount to the credit of such interest bearing blocked account (which is the subject of a Security Interest in favor of the Security Agent) as the Administrative Agent shall nominate. |
24.12 | Creation of additional security |
(a) | that additional security, its value and the method of its valuation have been approved by the Required Lenders; |
(b) | a Security Interest over that security has been constituted in favor of the Security Agent or (if appropriate) the Finance Parties in an approved form and manner; |
(c) | this Agreement has been unconditionally amended in such manner as the Administrative Agent and/or the Security Agent (on the instructions of the Required Lenders) requires in consequence of that additional security being provided; and |
(d) | the Administrative Agent, the Security Agent or its duly authorized representative, has received such documents and evidence as it may require in relation to that amendment and additional security including documents and evidence of the type referred to in Schedule 3 ( Conditions precedent ) in relation to that amendment and additional security and its execution and (if applicable) registration. |
25 | Bank accounts |
25.1 | Earnings Accounts |
(a) | The Borrower shall, and any Upstream Guarantor may, be the holder of one or more Accounts with an Account Bank which shall each be designated as an Earnings Account for the purposes of the Finance Documents. |
(b) | The Earnings of the Mortgaged Ships and all moneys payable to any Obligor with respect to a Mortgaged Ship under the Ship's Insurances shall be paid by the persons from whom they are due to an Earnings Account or, if applicable, to the Earnings Account for such Mortgaged Ship, unless required to be paid to the Security Agent under the relevant Finance Documents. |
(c) | As a condition precedent to each Utilization, the Borrower shall ensure that the amount standing to the credit of an Earnings Account is (or will be upon such Utilization) at least equal to the Liquidity Reserve Required Balance immediately after such Utilization. |
(d) | If there is no continuing Event of Default, and provided that there remains at all times in an Earnings Account an amount equal to the Liquidity Reserve Required Balance, the Borrower or relevant Upstream Guarantor (as the case may be) shall be entitled to make withdrawals from any Earnings Account. |
(e) | If there is a continuing Event of Default, neither the Borrower nor any Upstream Guarantor shall be entitled to make withdrawals from any Earnings Account other than for the payment of any amounts required to be paid under the Management Agreements, and provided that : |
(i) | the Borrower or the relevant Upstream Guarantor (as the case may be) has notified the Administrative Agent of the amount(s) to be withdrawn and the Management Agreement(s) to which the withdrawal relates; |
(ii) | the Borrower or relevant Upstream Guarantor (as the case may be) has provided the Administrative Agent with the relevant commercial invoice, payment request, fee notice or other document from the relevant Approved Manager stipulating that the amount(s) to be withdrawn are due and payable; and |
(iii) | there remains at all times in an Earnings Account an amount equal to the Liquidity Reserve Required Balance. |
25.2 | Other provisions |
(a) | An Account may only be designated for the purposes described in this Clause 25 if: |
(i) | such designation is made in writing by the Administrative Agent and/or the Security Agent and acknowledged by the Borrower or relevant Upstream Guarantor (as the case may be) and specifies the names and addresses of the Account Bank and the number and any designation or other reference attributed to the Account; |
(ii) | an Account Security has been duly executed and delivered by the Borrower or relevant Upstream Guarantor (as the case may be) in favor of the Security Agent; |
(iii) | any notice required by the Account Security to be given to an Account Bank has been given to, and acknowledged by, the Account Bank in the form required by the relevant Account Security; and |
(iv) | the Administrative Agent and/or the Security Agent, or its duly authorized representative, has received such documents and evidence as it may require in relation to the Account and the relevant Account Security including documents and evidence of the type referred to in Schedule 3 ( Conditions precedent ) in relation to the Account and the relevant Account Security. |
(b) | The rates of payment of interest and other terms regulating any Account will be a matter of separate agreement between the Borrower or relevant Upstream Guarantor (as the case may be) and an Account Bank. If an Account is a fixed term deposit account, the Borrower or relevant Upstream Guarantor (as the case may be) may select the terms of deposits until the relevant Account Security has become enforceable and the Security Agent directs otherwise. |
(c) | The Borrower or relevant Upstream Guarantor (as the case may be) shall not close any Account or alter the terms of any Account from those in force at the time it is designated for the purposes of this Clause 25 or waive any of their rights in relation to an Account except with approval of the Security Agent. |
(d) | The Borrower or relevant Upstream Guarantor (as the case may be) shall deposit with the Security Agent all certificates of deposit, receipts or other instruments or securities relating to any Account, notify the Security Agent of any claim or notice relating to an Account from any other party and provide the Security Agent with any other information it may request concerning any Account. |
(e) | Each of the Administrative Agent and the Security Agent agrees that if it is an Account Bank in respect of an Account then there will be no restrictions on creating a Security Interest over that Account as contemplated by this Agreement and it shall not (except with the approval of the Required Lenders) exercise any right of combination, consolidation or set-off which it may have in respect of that Account in a manner adverse to the rights of the other Finance Parties. |
26 | Business restrictions |
26.1 | General negative pledge |
(a) | those granted or expressed to be granted by any of the Security Documents; |
(b) | Permitted Security Interests; and |
(c) | (except in relation to Collateral) any lien arising by operation of law in the ordinary course of trading and not as a result of any default or omission by any Obligor. |
26.2 | Transactions similar to security |
(a) | sell, transfer or otherwise dispose of any of its assets on terms whereby that asset is or may be leased to, or re-acquired by, any Subsidiary of any Obligor other than pursuant to disposals permitted under Clause 26.6 ( Disposals ); |
(b) | sell, transfer, factor or otherwise dispose of any of its receivables on recourse terms (except for the discounting of bills or notes in the ordinary course of business); |
(c) | enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or |
(d) | enter into any other preferential arrangement having a similar effect, |
26.3 | Financial Indebtedness |
(a) | Financial Indebtedness incurred under the Finance Documents; |
(b) | Financial Indebtedness owed to an Affiliate or shareholder or member which has been fully subordinated to the Financial Indebtedness incurred under the Finance Documents in the form set out in Schedule 6 ( Form of Subordination Letter ); |
(c) | Financial Indebtedness permitted under Clauses 26.4 ( Guaranties ) and 26.5 ( Loans and credit ); |
(d) | Financial Indebtedness arising under Permitted Security Interests; and |
(e) | Financial Indebtedness arising under finance or capital leases of vehicles, equipment or computers; provided that the aggregate capital value of such items so leased does not exceed $250,000 at any time. |
26.4 | Guaranties |
26.5 | Loans and credit |
(a) | loans or credit to either the Borrower or any other Upstream Guarantor; and |
(b) | trade credit granted by it to its customers on normal commercial terms in the ordinary course of its trading activities. |
26.6 | Disposals |
(a) | disposals of assets made in (and on terms reflecting) the ordinary course of trading of the disposing entity but this shall not include any material assets necessary for it to conduct its business unless such assets are replaced with like assets simultaneously with such disposal; |
(b) | disposals of assets made by one Obligor to another Obligor; |
(c) | disposals of obsolete assets, or assets which are no longer required for the purpose of the business of the Borrower or any Guarantor, in each case for cash on normal commercial terms and on an arm's length basis; |
(d) | any disposal of receivables on a non-recourse basis on arm's length terms (including at Fair Market Value) for non-deferred cash consideration in the ordinary course of its business; |
(e) | disposals permitted by Clauses 26.2 ( Transactions similar to security ) or 26.3 ( Financial Indebtedness ); |
(f) | dealings with trade creditors with respect to book debts in the ordinary course of trading; and |
(g) | the application of cash or Cash Equivalents in the acquisition of assets or services in the ordinary course of its business. |
26.7 | Contracts and arrangements with Affiliates |
26.8 | No Change of Control |
(a) | Each of the Ships shall remain 100% legally and beneficially owned and controlled directly by the relevant Upstream Guarantor. |
(b) | Each of the Upstream Guarantors shall remain 100% legally and beneficially owned and controlled directly by the Borrower. |
(c) | The Borrower shall remain 100% legally and beneficially owned and controlled directly by the Facility Guarantor. |
26.9 | Subsidiaries |
26.10 | Acquisitions and investments |
(a) | with respect to the Borrower and its Subsidiaries (other than the Upstream Guarantors), the acquisitions of vessels in the ordinary course of business; |
(b) | the acquisition of assets in the ordinary course of business (not being new businesses); |
(c) | the incurrence of liabilities (other than Financial Indebtedness not permitted pursuant to Clause 26.3 ( Financial Indebtedness )) in the ordinary course of its business; |
(d) | any loan or credit not otherwise prohibited under this Agreement; |
(e) | pursuant to any Finance Documents, Shipbuilding Contract Documents and Charter Documents to which it is party; or |
(f) | any acquisition pursuant to a disposal permitted under Clause 26.6 ( Disposals ), |
26.11 | Reduction of capital |
26.12 | Distributions and other payments |
26.13 | Borrower's and Upstream Guarantors' Equity Interests |
26.14 | Borrower's Subordination of Financial Indebtedness |
26.15 | Compliance with ERISA |
(a) | None of the Obligors shall cause or suffer to exist: |
(i) | any event that could reasonably be expected to result in the imposition of liens in excess of $250,000 on any asset of an Obligor or a Subsidiary of an Obligor with respect to any Title IV Plan or Multiemployer Plan; or |
(ii) | any other ERISA Event, that would, in the aggregate, have a Material Adverse Change. |
(b) | None of the Obligors shall cause or suffer to exist any event that would, if not corrected or correctible, reasonably be expected to result in the imposition of liens (other than a permitted lien) in excess of $250,000 with respect to any Benefit Plan. |
27 | Hedging Contracts |
27.1 | The Borrower undertakes that this Clause 27 will be complied with throughout the Facility Period. |
27.2 | Hedging |
(a) | If, at any time during the Facility Period, the Borrower wishes to enter into any Treasury Transaction so as to hedge all or any part of its exposure under this Agreement to interest rate fluctuations, it shall advise the Administrative Agent in writing. |
(b) | If any such Treasury Transaction pursuant to Clause 27.2(a) ( Hedging ) shall be concluded with a Swap Bank it shall be on the terms of the Hedging Master Agreement with that Swap Bank. No such Treasury Transaction shall be concluded unless: |
(i) | its purpose is to hedge the Borrower's interest rate risk in relation to borrowings under this Agreement for a period expiring no later than the Final Repayment Date, and such transaction is not speculative; and |
(ii) | its notional principal amount, when aggregated with the notional principal amount of any other continuing Hedging Contracts, does not and will not exceed the Loan as then scheduled to be repaid pursuant to Clause 6.2 ( Scheduled Repayment of Advances ). |
(c) | If and when any such Treasury Transaction has been concluded, it shall constitute a Hedging Contract for the purposes of the Finance Documents. |
27.3 | Unwinding of Hedging Contracts |
27.4 | Assignment of Hedging Contracts by Borrower |
27.5 | Termination of Hedging Contracts by Borrower |
27.6 | Performance of Hedging Contracts by Borrower |
27.7 | Information concerning Hedging Contracts |
28 | Events of Default |
28.1 | Non-payment |
(a) | An Obligor does not pay on the due date any amount payable pursuant to a Finance Document, the KEXIM Premium or the K-sure Premium at the place at and in the currency in which it is expressed to be payable. |
(b) | No Event of Default under Clause 28.1(a) ( Non-payment ) above will occur if (i) its failure to pay is caused by administrative or technical error and (ii) payment is made within three (3) Business Days of its due date. |
28.2 | Value of security |
28.3 | Insurance |
(a) | The Insurances of a Mortgaged Ship are not placed and kept in force in the manner required by Clause 23 ( Insurance ). |
(b) | Any insurer either: |
(i) | cancels any such Insurances; or |
(ii) | disclaims liability under them by reason of any misstatement or failure or default by any person. |
(c) | Under this Clause 28.3, an Event of Default is immediate with no applicable grace period. |
28.4 | Financial covenants |
28.5 | Other obligations |
28.6 | Misrepresentation |
28.7 | Cross default |
(a) | Any Financial Indebtedness of (i) any Upstream Guarantor or the Borrower in an amount in excess of the equivalent of $1,000,000 is not paid when due nor within any originally applicable grace period or (ii) the Facility Guarantor or any direct or indirect Subsidiary of the Facility Guarantor (excluding any Upstream Guarantor or the Borrower) in an aggregate amount in excess of the equivalent of $10,000,000 is not paid when due nor within any originally applicable grace period. |
(b) | Any Financial Indebtedness of (i) any Upstream Guarantor or the Borrower in an amount in excess of the equivalent of $1,000,000 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) or (ii) the Facility Guarantor or any direct or indirect Subsidiary of the Facility Guarantor (excluding any Upstream Guarantor or the Borrower) in an aggregate amount in excess of the equivalent of $10,000,000 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) unless, in any such case, such Upstream Guarantor, the Borrower, the Facility Guarantor or Subsidiary of the Facility Guarantor (as the case may be) is contesting in good faith the validity of its obligation to make such payment and the Borrower has provided the Administrative Agent with satisfactory evidence it has set aside adequate reserves in accordance with GAAP with respect to the amount being claimed of it and to finance any action it is taking to contest such claims. |
(c) | An event of default, or an event or circumstance which, with the giving of any notice, the lapse of time or both would constitute an event of default, has occurred on the part of an Obligor under any contract or agreement (other than the Finance Documents) to which such Finance Party is a party and the value of which is or exceeds in the aggregate (i) in the case of any Upstream Guarantor or the Borrower, the equivalent of $1,000,000, or (ii) in the case of the Facility Guarantor or any direct or indirect Subsidiary of the Facility Guarantor (excluding any Upstream Guarantor or the Borrower) the equivalent of $10,000,000, and such event of default has not been cured wit hin any applicable grace period. |
28.8 | Insolvency |
28.9 | Intentionally omitted |
28.10 | Creditors' process; Judgments |
(a) | Any expropriation, attachment, sequestration, distress, execution or analogous process affects all or substantially all of the assets of any Obligor and is not discharged within ten (10) days. |
(b) | Any judgment or order in excess of $1,000,000 with respect to the Borrower and the Upstream Guarantors and $10,000,000 with respect to the Facility Guarantor is not stayed or complied with within thirty (30) days, provided that the relevant Obligor shall have set aside on its books adequate reserves in accordance with GAAP. |
28.11 | Unlawfulness, impossibility and invalidity |
(a) | It is or becomes unlawful or impossible for an Obligor to perform any of its obligations under the Finance Documents or any Security Interest created or expressed to be created or evidenced by the Security Documents ceases to be effective. |
(b) | Any obligation or obligations of any Obligor under any Finance Documents are not or cease to be legal, valid, binding or enforceable. |
(c) | Any Finance Document or any Security Interest created or expressed to be created or evidenced by the Security Documents ceases to be in full force and effect or is alleged by a party to it (other than the Finance Parties) to be ineffective for any reason. |
(d) | Any Security Document does not create legal, valid, binding and enforceable security over the assets charged under that Security Document or the ranking or priority of such security is adversely affected. |
28.12 | Cessation of business |
28.13 | Change of Control |
28.14 | Expropriation |
28.15 | Repudiation and rescission of Finance Documents |
28.16 | Material Adverse Change or other Event |
(a) | a Material Adverse Change; |
(b) | any Environmental Incident or other event or circumstance or series of events (including any change of law) occurs which is reasonably likely to result in a Material Adverse Change or |
(c) | an event or circumstance which materially and adversely effects the ability of any Obligor to perform its obligations under the Finance Documents. |
28.17 | Litigation |
28.18 | Security enforceable |
28.19 | Arrest of Ship |
28.20 | Ship registration |
28.21 | Political risk |
28.22 | Class or trading certificates |
28.23 | Hedging Contracts |
(a) | An Event of Default or Potential Event of Default (in each case as defined in any Hedging Master Agreement) has occurred and is continuing under any Hedging Contract. |
(b) | An Early Termination Date (as defined in any Hedging Master Agreement) has occurred or been or become capable of being effectively designated under any Hedging Contract. |
(c) | A person entitled to do so gives notice of such an Early Termination Date under any Hedging Contract except with approval or as may be required by Clause 27.3 ( Unwinding of Hedging Contracts ). |
(d) | Any Hedging Contract is terminated, cancelled, suspended, rescinded or revoked or otherwise ceases to remain in full force and effect for any reason except with approval by the Administrative Agent or as may be required by Clause 27.3 ( Unwinding of Hedging Contracts ). |
28.24 | Sanctions |
(a) | It will be considered an Event of Default under this Agreement: |
(i) | if any Obligor or any of its Affiliates becomes a Restricted Person or becomes owned or controlled by, or acts directly or indirectly on behalf of, a Restricted Person or any of such persons becomes the owner or controller of a Restricted Person; |
(ii) | if any Obligor or any of its Affiliates fails to comply with any Sanctions; |
(iii) | any proceeds of Loan is made available, directly or indirectly, to or for the benefit of a Restricted Person or otherwise is, directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions; |
(iv) | a change in law makes the making or maintenance of the Loan illegal or otherwise prohibited; or |
(v) | if an Obligor or any of its officers, directors, employees or agents has violated or caused a Lender to violate any Sanctions in connection with this Agreement, and in such case, notwithstanding any other provision of this Agreement to the contrary: |
(A) | such Lender may notify the Administrative Agent upon becoming aware of that event, and the Administrative Agent shall promptly notify the Borrower; |
(B) | upon the Administrative Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; |
(C) | to the extent that the Lender's participation has not been assigned pursuant to Clauses 2.2 ( Increase ) or 41.8(a) to 41.8(c) ( Replacement of a Defaulting Lender ), the Borrower shall repay all amounts outstanding to the Lender on the last day of the Interest Period occurring after the Administrative Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law). |
(b) | In relation to each Restricted Lender defined in Clause 14.9(b) ( Sanctions Indemnity ), Clauses 20.1 (b) ( Use of proceeds ), 20.3 ( Compliance with laws ), 20.13 ( Sanctions generally ), 20.14 ( Sanctions with respect to each Mortgaged Ship ) and Clause 28.26 ( Acceleration ) shall only apply for the benefit of that Restricted Lender to the extent that the provisions would not result in (i) any violation of or conflict with Council Regulation (EC) 2271/96 or (ii) a violation of or conflict with section 7 German foreign trade rules (AWV) ( Außenwirtschaftsverordnung ) or a similar anti-boycott statute. |
28.25 | Anti-Bribery and Corruption |
(a) | I t will be considered an Event of Default under this Agreement if any Obligor or Affiliate breaches the representations, warranties, or covenants described in Clause 17.32 ( Anti-Bribery and Corruption Laws ). |
(b) | If an Obligor or any of its officers, directors, employees or agents has violated or caused a Lender to violate any Anti-Bribery and Corruption Laws in connection with this Agreement, such Lender may, notwithstanding any other provision of this Agreement to the contrary, cancel its Commitment and participation in this Agreement in accordance with Clause 28.24(a)(v) ( Sanctions ). |
28.26 | Acceleration |
(a) | cancel the Total Commitments at which time they shall immediately be cancelled; and/or |
(b) | declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, at which time they shall become immediately due and payable; and/or |
(c) | declare that all or part of the Loan be payable on demand, at which time it shall immediately become payable on demand by the Administrative Agent on the instructions of the Required Lender; |
(d) | declare that no withdrawals be made from any Account; and/or |
(e) | exercise or direct the Security Agent and/or any other beneficiary of the Security Documents to exercise any or all of their rights, remedies, powers or discretions under the Finance Documents; |
29 | Position of Swap Bank |
29.1 | Rights of Swap Bank |
(a) | Each Swap Bank is a Finance Party and as such, will be entitled to share in the security constituted by the Security Documents in respect of any liabilities of the Borrower under the Hedging Contracts with such Swap Bank, on a subordinated basis and in the manner and to the extent contemplated by the Finance Documents. |
(b) | So long as a Swap Bank has entered into any Hedging Contract, Hedging Contract Security and/or Hedging Master Agreement while it was an Original Lender (or an Affiliate of an Original Lender) and if such Original Lender is no longer a Lender under this Agreement, then the Security Interests securing the Hedging Contracts entered into by such Original Lender (or such Affiliate) and which were created by the relevant Security Document shall continue to remain in full force and effect. |
29.2 | No voting rights |
29.3 | Acceleration and enforcement of security |
29.4 | Close out of Hedging Contracts |
(a) | The Parties agree that at any time on and after any Event of Default the Administrative Agent (acting on the instructions of the Required Lenders) shall be entitled, by notice in writing to a Swap Bank, to instruct such Swap Bank to terminate and close out any Hedging Transactions (or part thereof) with the relevant Swap Bank. The relevant Swap Bank will terminate and close out the relevant Hedging Transactions (or parts thereof) and/or the relevant Hedging Contracts in accordance with such notice immediately upon receipt of such notice. |
(b) | No Swap Bank shall be entitled to terminate or close out any Hedging Contract or any Hedging Transaction under it prior to its stated maturity except: |
(i) | in accordance with a notice served by the Administrative Agent under Clause 28.26 ( Acceleration ); |
(ii) | if the Borrower has not paid amounts due under the Hedging Contract and such amounts remain unpaid for a period of 30 calendar days (not Business Days) after the due date for payment and the Administrative Agent (acting on the instructions of the Required Lenders) consents to such termination or close out; |
(iii) | if the Administrative Agent takes any action under Clause 28.26 (Acceleration) ; or |
(iv) | if the Loan and other amounts outstanding under the Finance Documents (other than amounts outstanding under the Hedging Contracts) have been repaid by the Borrower in full. |
(c) | If an Event of Default has occurred and is continuing, if there is a net amount payable to the Borrower under a Hedging Transaction or a Hedging Contract upon its termination and close out, the relevant Swap Bank shall forthwith pay that net amount (together with interest earned on such amount) to the Security Agent for application in accordance with Clause 32.23 ( Order of application ). |
(d) | No Swap Bank (in any capacity) shall set-off any such net amount against or exercise any right of combination in respect of any other claim it has against the Borrower. |
(e) | Nothing in this clause shall limit the right of a Swap Bank, which ceases to be a Lender, from assigning, transferring or novating the Hedging Contract to which it is a party to another Swap Bank. |
30 | Changes to the Lenders |
30.1 | Assignments by the Lenders |
(a) | no consent of the Facility Guarantor shall be required for assignments or transfers to Affiliates of Lenders, other Lenders, KEXIM, K-sure or for securitization purposes of a Lender provided that such securitization shall continue to be managed by such Lender and it shall not result in such Lender assigning or transferring any of its rights in view of such securitization process; |
(b) | none of the Obligors may at any time purchase or otherwise acquire any interest in all or any portion of the Loan from any Existing Lender or a Substitute; |
(c) | in relation to an Existing Lender's rights under the Commercial Tranche, a Substitute may be only a Lender or other financial institution reasonably acceptable to the Facility Guarantor, such Facility Guarantor's confirmation to be deemed given if no response to the contrary is received within seven (7) Business Days; |
(d) | in relation to an Existing Lender's rights under the KEXIM Guaranteed Tranche, a Substitute may be only a Mandated Lead Arranger or other financial institution acceptable to the Facility Guarantor and KEXIM, such Facility Guarantor's confirmation to be deemed given if no response to the contrary is received within seven (7) Business Days; |
(e) | in relation to an Existing Lender's rights under the KEXIM Funded Tranche, no consent of the Facility Guarantor shall be required for transfers to any Substitute following a direction or requirement from the Korean Government or any agency thereof, provided that the Facility Guarantor shall be notified of any such transfer. |
(f) | in relation to an Existing Lender's rights under the K-sure Tranche: |
(i) | a Substitute may be only a Mandated Lead Arranger or other financial institution acceptable to K-sure and the Facility Guarantor, such Facility Guarantor's confirmation to be deemed given if no response to the contrary is received within seven (7) Business Days, and such Substitute may not be KEXIM; |
(ii) | to the extent that it is required to do so by K-sure pursuant to the terms of any K-sure Insurance Policy, the K-sure transferor Lender shall cause a transfer to K-sure in respect of such part of its Commitment or (as the case may be) its portion of the relevant Advance under the K-sure Tranche as is equal to the amount simultaneously paid to it by K-sure under the relevant K-sure Insurance Policy, provided that this shall not be construed as depriving any K-sure transferor Lender of its rights to recover any part of the Total Commitments, Loan, Unpaid Sum or otherwise owing to it after receipt of the relevant K-sure Insurance Policy insurance proceeds; |
(iii) | for the avoidance of doubt and without prejudice to the generality of the foregoing, in the event that K-sure pays out in full or in part the insurance proceeds in accordance with the terms of any K-sure Insurance Policy: |
(A) | the obligations of the Obligors under this Agreement and each of the Finance Documents shall neither be reduced nor affected in any way; |
(B) | K-sure shall be entitled to the extent of such payment to exercise all rights of the K-sure Lenders (whether present or future) against the Obligors pursuant to this Agreement and the Finance Documents or any relevant laws and/or regulations, as the case may be in respect of the Collateral and solely to the extent that these relate to such payment (but without prejudice to the exercise of such rights by the other Finance Parties) unless and until such insurance proceeds and the interest accrued on them are fully reimbursed to K-sure; and |
(C) | with respect to the obligations of the Obligors owed to the Administrative Agent and/or the K-sure Lenders under the Finance Documents (or any of them), such obligations shall be owed to K-sure by way of subrogation of the rights of the K-sure Lenders. |
30.2 | Substitution |
(a) | the existing parties to the relevant Finance Document and the Lender party to the relevant Substitution Certificate shall be released from their respective obligations towards one another under such Finance Document (" discharged obligations ") and their respective rights against one another under such Finance Document (" discharged rights ") shall be cancelled; |
(b) | the Substitute party to the relevant Substitution Certificate and the existing parties to the relevant Finance Document (other than the Lender party to such Substitution Certificate) shall assume obligations towards each other which differ from the discharged obligations only insofar as they are owed to or assumed by such Substitute instead of to or by such Lender; |
(c) | the Substitute party to the relevant Substitution Certificate and the existing parties to the relevant Finance Document (other than the Lender party to such Substitution Certificate) shall acquire rights against each other which differ from the discharged rights only insofar as they are exercisable by or against such Substitute instead of by or against such Lender; and |
(d) | in the event any Lender transfers by way of assignment all or any part of its rights, benefits and/or obligations under any Finance Document to another person, the relevant Finance Document, this Agreement and the other Finance Documents shall remain in full force and effect, |
30.3 | Reliance on Substitution Certificate |
30.4 | Signing of Substitution Certificate |
30.5 | Construction of certain references |
30.6 | Documenting assignments, transfers, novations and/or substitutions |
30.7 | Lending office |
30.8 | Disclosure of information |
(a) | Each Finance Party agrees to use all reasonable efforts to maintain, in accordance with its customary practices, the confidentiality of Information (as defined below) for a period of 2 years after the date of this Agreement, except that any Finance Party may give, divulge and reveal from time to time information and details relating to its account, any Ship, the Finance |
(i) | any private, public or internationally recognized authorities or any regulatory party to which that Finance Party is subject to, that are entitled to by law or judicial order and as such have requested to obtain such information; |
(ii) | the head offices, branches and affiliates, and professional advisors (with a duty of confidentiality regarding such professional advisors) of any Finance Party; |
(iii) | KEXIM, K-sure or any other parties to the Finance Documents; |
(iv) | a rating agency or their professional advisors; |
(v) | any person with whom they propose to enter (or contemplate entering) into contractual relations in relation to the Facility and/or Commitments including, without limitation, any enforcement, preservation, assignment, transfer, novation, sale or sub-participation of any of the rights and obligations of any Finance Party; or |
(vi) | any other person(s) regarding the funding, re-financing, transfer, assignment, novation, sale, sub-participation or operational arrangement or other transaction in relation thereto, including, without limitation, any enforcement, preservation, assignment, transfer, sale or sub-participation of any of the rights and obligations of any Finance Party. |
(b) | For purposes of Clause 30.8(a) above, Information means all information received from any Obligor or any of its Subsidiaries relating to any Obligor or any of their Subsidiaries or any of their respective businesses (including, without limitation, information provided either directly by any such party or through electronic means (such as DebtDomain, Intralinks or other data websites)), other than any such information that is available to the Finance Parties on a non-confidential basis prior to disclosure by any Obligor or any of its Subsidiaries, provided that, in the case of information received from any Obligor or any of its Subsidiaries after the date hereof, such information is clearly identified at the time of delivery as confidential. |
(c) | Any person required to maintain the confidentiality of Information as provided in this Clause 30.8 shall be considered to have complied with its obligation to do so if such person has exercised the same degree of care to maintain the confidentiality of such Information as such person would accord its own confidential information. |
(d) | This clause 30.8 constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding the confidentiality of Information and supersedes any previous agreement, whether express or implied, regarding such Information. |
30.9 | No additional cost |
30.10 | Security over Lenders' rights |
(a) | any pledge, assignment or other Security Interest to secure obligations to a federal reserve or central bank; and |
(b) | in the case of any Lender which is a fund, any pledge, assignment or other Security Interest granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities, except that no such pledge, assignment or Security Interest shall: |
(i) | release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant pledge, assignment or other Security Interest for the Lender as a party to any of the Finance Documents; or |
(ii) | require any payments to be made by an Obligor or grant to any person any more extensive rights than those required to be made or granted to the relevant Lender under the Finance Documents. |
31 | Changes to the Obligors |
32.1 | Appointment of the Administrative Agent |
(a) | Each other Finance Party (other than the Security Agent) appoints the Administrative Agent to act as its agent under and in connection with the Finance Documents. |
(b) | Each such other Finance Party authorizes the Administrative Agent: |
(i) | to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Administrative Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and |
(ii) | to execute each of the Security Documents and all other documents that may be approved by the Required Lenders for execution by it. |
32.2 | Instructions to Administrative Agent |
(a) | The Administrative Agent shall: |
(i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Administrative Agent in accordance with any instructions given to it by (A) all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and (B) in all other cases, the Required Lenders; and |
(ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (i) above. |
(b) | The Administrative Agent shall be entitled to request instructions, or clarification of any instruction, from the Required Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Administrative Agent may refrain from acting unless and until it receives those instructions or that clarification. |
(c) | Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Administrative Agent by the Required Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties save for the Security Agent. |
(d) | The Administrative Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions. |
(e) | In the absence of instructions, the Administrative Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. |
(f) | The Administrative Agent is not authorized to act on behalf of a Lender or a Swap Bank (without first obtaining that Lender's or that Swap Bank's consent) in any legal or arbitration proceedings relating to any Finance Document. This Clause 32.2(f) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Security Documents. |
32.3 | Duties of the Administrative Agent |
(a) | The Administrative Agent's duties under the Finance Documents are solely mechanical and administrative in nature. |
(b) | The Administrative Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Administrative Agent for that Party by any other Party. |
(c) | The Administrative Agent shall promptly forward to each Lender the documents provided to it by any Obligor pursuant to Clause 18 ( Information Undertakings ). |
(d) | Except where a Finance Document specifically provides otherwise, the Administrative Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party. |
(e) | If the Administrative Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the other Finance Parties. |
(f) | If the Administrative Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Administrative Agent, the Mandated Lead Arrangers or the Security Agent, for their own account) under this Agreement it shall promptly notify the other Finance Parties. |
(g) | The Administrative Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied). |
32.4 | Role of the Mandated Lead Arrangers |
32.5 | No fiduciary duties |
(a) | Nothing in this Agreement constitutes the Administrative Agent or any Mandated Lead Arranger as a trustee or fiduciary of any other person. |
(b) | None of the Administrative Agent, the Security Agent or any Mandated Lead Arranger shall be bound to account to any Lender or any Swap Bank for any sum or the profit element of any sum received by it for its own account or have any obligations to the other Finance Parties beyond those expressly stated in the Finance Documents. |
32.6 | Business with the Obligors |
32.7 | Rights and discretions of the Administrative Agent |
(a) | The Administrative Agent may |
(i) | rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorized; |
(ii) | assume that (A) any instructions received by it from the Required Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and (B) unless it has received notice of revocation, that those instructions have not been revoked; and |
(iii) | rely on a certificate from any person (A) as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or (B) to the effect that such person approves of any particular dealing, transaction, step, action or thing, as sufficient evidence that that is the case and, in the case of paragraph (i) above, may assume the truth and accuracy of that certificate. |
(b) | The Administrative Agent may assume (unless it has received notice to the contrary in its capacity as agent for the other Finance Parties) that: |
(i) | no Default has occurred (unless it has actual knowledge of a Default arising under Clause 28.1 (Non-payment)); |
(ii) | any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised; and |
(iii) | any notice or request made by the Borrower (other than a Utilization Request) is made on behalf of and with the consent and knowledge of all the Obligors. |
(c) | The Administrative Agent may engage and pay for the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts in the conduct of its obligations and responsibilities under the Finance Documents. |
(d) | The Administrative Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Administrative Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying. |
(e) | Without prejudice to the generality of paragraphs (c) and (d), the Administrative Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Administrative Agent (and so separate from any lawyers instructed by the Lenders) if the Administrative Agent in its reasonable opinion deems this to be desirable. |
(f) | The Administrative Agent may act in relation to the Finance Documents through its officers, employees and agents and the Administrative Agent shall not: |
(i) | be liable for any error of judgment made by any such person; or |
(ii) | be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person, |
(g) | Unless a Finance Document expressly provides otherwise, the Administrative Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement. |
(h) | Without prejudice to the generality of Clause 32.7(g) ( Rights and discretions of the Administrative Agent ) above, the Administrative Agent: |
(i) | may disclose; and |
(ii) | upon the written request of the Borrower or the Required Lenders shall, as soon as reasonably practicable, disclose |
(i) | Notwithstanding any other provision of any Finance Document to the contrary, neither the Administrative Agent nor any Mandated Lead Arranger is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality. The Administrative Agent and each Mandated Lead Arranger may do anything which in its opinion, is necessary or desirable to comply with any law or regulation of any jurisdiction. |
(j) | Notwithstanding any provision of any Finance Document to the contrary, the Administrative Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it. |
(k) | Neither the Administrative Agent nor any Mandated Lead Arranger shall be obliged to request any certificate, opinion or other information under Clause 18 ( Information undertakings ) unless so required in writing by a Lender or a Swap Bank, in which case the Administrative Agent shall promptly make the appropriate request of the Borrower if such request would be in accordance with the terms of this Agreement. |
32.8 | Responsibility for documentation and other matters |
(a) | the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Administrative Agent, any Mandated Lead Arranger, an Obligor or any other person given in or in connection with any Finance Document or the transactions contemplated in the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or of any representations in any Finance Document or of any copy of any document delivered under any Finance Document; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; |
(c) | any loss to the Trust Property arising in consequence of the failure, depreciation or loss of any Collateral or any investments made or retained in good faith or by reason of any other matter or thing; |
(d) | accounting to any person for any sum or the profit element of any sum received by it for its own account; |
(e) | the failure of any Obligor or any other party to perform its obligations under or in connection with any Transaction Document, or the financial condition of any such person; |
(f) | ascertaining whether all deeds and documents which should have been deposited with it (or the Security Agent) under or pursuant to any of the Security Documents have been so deposited; |
(g) | investigating or making any inquiry into the title of any Obligor to any of the Collateral or any of its other property or assets; |
(h) | failing to register any of the Security Documents in accordance with the provisions of the documents of title of any Obligor to any of the Collateral; |
(i) | failing to take or require any Obligor to take any steps to render any of the Security Documents effective as regards property or assets outside New York or to secure the creation of any ancillary pledge under the laws of the jurisdiction concerned; |
(j) | (unless it is the same entity as the Security Agent) the Security Agent and/or any other beneficiary of a Security Document failing to perform or discharge any of its duties or obligations under the Security Documents; or |
(k) | any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by any applicable law or regulation relating to insider dealing or otherwise. |
32.9 | No duty to monitor |
(a) | whether or not any Default has occurred; |
(b) | as to the performance, default or any breach by any Party of its obligations under any Finance Document; or |
(c) | whether any other event specified in any Finance Document has occurred. |
32.10 | Exclusion of liability |
(a) | Without limiting paragraph (b) below (and without prejudice to any other provision of the Finance Documents excluding or limiting the liability of the Administrative Agent) the Administrative Agent will not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for: |
(i) | any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or the Collateral, unless directly caused by its gross negligence or willful misconduct; |
(ii) | exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, the Collateral or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or the Collateral; or |
(iii) | without prejudice to the generality of paragraphs (i) and (ii) above, any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a |
(b) | No Party (other than the Administrative Agent) may take any proceedings against any officer, employee or agent of the Administrative Agent in respect of any claim it might have against the Administrative Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document. |
(c) | The Administrative Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Administrative Agent if the Administrative Agent has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognized clearing or settlement system used by the Administrative Agent for that purpose. |
(d) | Nothing in this Agreement shall oblige the Administrative Agent or any Mandated Lead Arranger to carry out |
(i) | any "know your customer" or other checks in relation to any person; or |
(ii) | any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender, |
(e) | Without prejudice to any provision of any Finance Document excluding or limiting the Administrative Agent's liability, any liability of the Administrative Agent arising under or in connection with any Finance Document or the Collateral shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Administrative Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Administrative Agent at any time which increase the amount of that loss. In no event shall the Administrative Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Administrative Agent has been advised of the possibility of such loss or damages. |
32.11 | Lenders' indemnity to the Administrative Agent |
(a) | Each Lender shall (in proportion (if no part of the Loan is then outstanding) to its share of the Total Commitments or (at any other time) to its participation in the Loan) indemnify the Administrative Agent, within three (3) Business Days of demand, against |
(i) | any Losses for negligence or any other category of liability whatsoever incurred by Administrative Agent in the circumstances contemplated pursuant to Clause 36.9 ( Disruption to payment systems etc. ) notwithstanding the Administrative Agent's |
(ii) | any other Losses (otherwise than by reason of the Administrative Agent's gross negligence or willful misconduct) including the costs of any person engaged in accordance with Clause 32.7 ( Rights and discretions of the Administrative Agent ) in acting as its agent under the Finance Documents; and |
(iii) | any Losses relating to FATCA; |
(b) | Subject to paragraph (c) below, the Borrower shall immediately on demand reimburse any Lender for any payment that Lender makes to the Administrative Agent pursuant to paragraph (a) above. |
(c) | Paragraph (b) above shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Administrative Agent to an Obligor. |
32.12 | Resignation of the Administrative Agent |
(a) | The Administrative Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders, each Swap Bank, the Security Agent and the Obligors. |
(b) | Alternatively the Administrative Agent may resign by giving 30 days' notice to the other Finance Parties and the Obligors, in which case the Required Lenders (after consultation with the Obligors) may appoint a successor Administrative Agent. |
(c) | If the Required Lenders have not appointed a successor Administrative Agent in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Administrative Agent (after consultation with the Borrower) may appoint a successor Administrative Agent. |
(d) | If the Administrative Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Administrative Agent is entitled to appoint a successor Administrative Agent under paragraph (c) above, the Administrative Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Administrative Agent to become a party to this Agreement as Administrative Agent) agree with the proposed successor Administrative Agent amendments to this Clause 32 and any other term of this Agreement dealing with the rights or obligations of the Administrative Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Administrative Agent's normal fee rates and those amendments will bind the Parties. |
(e) | The retiring Administrative Agent shall make available to the successor Administrative Agent such documents and records and provide such assistance as the successor Administrative Agent may reasonably request for the purposes of performing its functions as Administrative Agent under the Finance Documents. The Borrower shall, within three (3) Business Days of demand, reimburse the retiring Administrative Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance. |
(f) | The Administrative Agent's resignation notice shall only take effect upon the appointment of a successor. |
(g) | The appointment of the successor Administrative Agent shall take effect on the date specified in the notice from the Required Lenders to the retiring Administrative Agent. As from this date, the retiring Administrative Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause 14.3 ( Indemnity to the Administrative Agent and the Security Agent ) and this Clause 32 (and any agency fees for the account of the retiring Administrative Agent shall cease to accrue from (and shall be payable on) that date). Any successor and each of the other Parties shall have the same rights and obligations among themselves as they would have had if such successor had been an original Party. |
(h) | The Administrative Agent shall resign in accordance with either paragraph (a) or (b) above (and, to the extent applicable, shall use reasonable endeavors to appoint a successor Administrative Agent pursuant to paragraph (c) above) if on or after the date which is three (3) months before the earliest FATCA Application Date relating to any payment to the Administrative Agent under the Finance Documents, either: |
(i) | the Administrative Agent fails to respond to a request under Clause 12.9 ( FATCA Information ) and the Borrower or a Lender reasonably believes that the Administrative Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
(ii) | the information supplied by the Administrative Agent pursuant to Clause 12.9 ( FATCA Information ) indicates that the Administrative Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or |
(iii) | the Administrative Agent notifies the Borrower and the Lenders that the Administrative Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; |
32.13 | Replacement of the Administrative Agent |
(a) | After consultation with the Borrower, the Required Lenders may, by giving 30 days' notice to the Administrative Agent replace the Administrative Agent by appointing a successor Administrative Agent. |
(b) | The retiring Administrative Agent shall make available to the successor Administrative Agent such documents and records and provide such assistance as the successor Administrative Agent may reasonably request for the purposes of performing its functions as Administrative Agent under the Finance Documents. |
(c) | The appointment of the successor Administrative Agent shall take effect on the date specified in the notice from the Required Lenders to the retiring Administrative Agent. As from this date, the retiring Administrative Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) but shall remain entitled to the benefit of Clause 14.3 ( Indemnity to the Administrative Agent and the Security Agent ) and this Clause 32 (and any agency fees for the account of the retiring Administrative Agent shall cease to accrue from (and shall be payable on) that date). |
(d) | Any successor Administrative Agent and each of the other Parties shall have the same rights and obligations among themselves as they would have had if such successor had been an original Party. |
32.14 | Confidentiality |
(a) | In acting as agent for the Finance Parties, the Administrative Agent shall be regarded as acting through its department, division or team directly responsible for the management of the Finance Documents which shall be treated as a separate entity from any other of its divisions, departments or teams. |
(b) | If information is received by another division or department of the Administrative Agent, it may be treated as confidential to that division or department and the Administrative Agent shall not be deemed to have notice of it. |
(c) | Notwithstanding any other provision of any Finance Document to the contrary, neither the Administrative Agent nor any Mandated Lead Arranger is obliged to disclose to any other person (i) any confidential information or (ii) any other information if the disclosure would, or might in its reasonable opinion, constitute a breach of any law or regulation or a breach of a fiduciary duty. |
32.15 | Relationship with the Lenders and Swap Bank |
(a) | The Administrative Agent may treat the person shown in its records as Lender or as each Swap Bank at the opening of business (in the place of the Administrative Agent's principal office as notified to the Finance Parties from time to time) as the Lender or (as the case may be) as a Swap Bank acting through its Facility Office: |
(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, |
(b) | Each Lender and each Swap Bank shall supply the Administrative Agent with any information that the Administrative Agent may reasonably specify as being necessary or desirable to enable the Administrative Agent or the Security Agent, to perform its functions as Administrative Agent or Security Agent. |
(c) | Each Lender and each Swap Bank shall deal with the Security Agent exclusively through the Administrative Agent and shall not deal directly with the Security Agent. |
32.16 | Credit appraisal by the Lenders and Swap Banks |
(a) | the financial condition, status and nature of each Obligor; |
(b) | the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; |
(c) | whether any Finance Party has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Finance Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document or the Collateral; |
(d) | the adequacy, accuracy and/or completeness of any information provided by the Administrative Agent, any Party or by any other person under or in connection with any Transaction Document, the transactions contemplated by the Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and |
(e) | the right or title of any person in or to, or the value or sufficiency of, any part of the Collateral, the priority of the Security Documents or the existence of any Security Interest affecting the Collateral. |
32.17 | Reference Banks |
32.18 | Intentionally omitted |
32.19 | Deduction from amounts payable by the Administrative Agent |
32.20 | Security Agent |
(a) | Each other Finance Party appoints the Security Agent to act as its agent and (to the extent permitted under any applicable law) trustee under and in connection with the Security Documents and confirms that the Security Agent shall have a lien on the Security Documents and the proceeds of the enforcement of those Security Documents for all moneys payable to the beneficiaries of those Security Documents. |
(b) | Each other Finance Party authorizes the Security Agent: |
(i) | to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions; and |
(ii) | to execute each of the Security Documents and all other documents that may be approved by the Administrative Agent and/or the Required Lenders for execution by it. |
(c) | The Security Agent accepts its appointment under paragraph (a) above as trustee of the Trust Property with effect from the date of this Agreement and declares that it holds the Trust Property on trust for itself, the other Finance Parties (for so long as they are Finance Parties) on and subject to the terms set out in this Clause 32.20 ( Security Agent ) through 32.27 ( Indemnity from Trust Property ) (inclusive) and the Security Documents to which it is a party. |
32.21 | Application of certain clauses to Security Agent |
(a) | Clauses 32.7 ( Rights and discretions of the Administrative Agent ), 32.8 ( Responsibility for documentation and other matters ), 32.9 ( No duty to monitor ), 32.10 ( Exclusion of liability ), 32.11 ( Lenders' indemnity to the Administrative Agent ), 32.12 ( Resignation of the Administrative Agent ), 32.13 ( Replacement of the Administrative Agent ), 32.14 ( Confidentiality ), 32.15 ( Relationship with the Lenders and Swap Bank ), 32.16 ( Credit appraisal by the Lenders and Swap Banks) and 32.19 ( Deduction from amounts payable by the Administrative Agent ) shall each extend so as to apply to the Security Agent in its capacity as such and for that purpose each reference to the "Administrative Agent" in these clauses shall extend to include in addition a reference to the "Security Agent" in its capacity as such and, in Clause 32.7 ( Rights and discretions of the Administrative Agent ), references to the Lenders and a group of Lenders shall refer to the Administrative Agent. |
(b) | In addition, Clause 32.12 ( Resignation of the Administrative Agent ) shall, for the purposes of its application to the Security Agent pursuant to paragraph (a) above, have the following additional clause: |
32.22 | Instructions to Security Agent |
(a) | The Security Agent shall: |
(i) | unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Security Agent in accordance with any instructions given to it by the Administrative Agent; and |
(ii) | not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with paragraph (a) above. |
(b) | The Security Agent shall be entitled to request instructions, or clarification of any instruction, from the Administrative Agent as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Security Agent may refrain from acting unless and until it receives those instructions or that clarification. |
(c) | Unless a contrary indication appears in a Finance Document, any instructions given to the Security Agent by the Administrative Agent shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties. |
(d) | The Security Agent may refrain from acting in accordance with any instructions of the Administrative Agent until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions. |
(e) | In the absence of instructions, the Security Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders. |
(f) | The Security Agent is not authorized to act on behalf of a Lender or a Swap Bank (without first obtaining that Lender's or the relevant Swap Bank's consent) in any legal or arbitration proceedings relating to any Finance Document. This paragraph (e) shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Security Documents or enforcement of the Security Documents. |
32.23 | Order of application |
(a) | The Security Agent agrees to apply the Trust Property and each other beneficiary of the Security Documents agrees to apply all moneys received by it in the exercise of its rights under the Security Documents in accordance with the following respective claims: |
(b) | The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Administrative Agent) any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent), any other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable. |
(c) | The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this Clause 32.23 by paying such amounts to the Administrative Agent for distribution in accordance with Clause 36 ( Payment mechanics ). |
32.24 | Powers and duties of the Security Agent as trustee of the security |
(a) | shall, without prejudice to any of the powers, discretions and immunities conferred upon trustees by law (and to the extent not inconsistent with the provisions of this Agreement or any of the Security Documents), have all the same powers and discretions as a natural person acting as the beneficial owner of such property and/or as are conferred upon the Security Agent by this Agreement and/or any Security Document but so that the Security Agent may only exercise such powers and discretions to the extent that it is authorized to do so by the provisions of this Agreement; |
(b) | may, in the conduct of its obligations under and in respect of the Security Documents (otherwise than in relation to its right to make any declaration, determination or decision), instead of acting personally, employ and pay any agent (whether being a lawyer or any other person) to transact or concur in transacting any business and to do or concur in doing any acts required to be done by the Security Agent (including the receipt and payment of money) and on the basis that (i) any such agent engaged in any profession or business shall be entitled to be paid all usual professional and other charges for business transacted and acts done by him or any partner or employee of his or her in connection with such employment and (ii) the Security Agent shall not be bound to supervise, or be responsible for any loss incurred by reason of any act or omission of, any such agent if the Security Agent shall have exercised reasonable care in the selection of such agent; and |
(c) | may place all deeds and other documents relating to the Trust Property which are from time to time deposited with it pursuant to the Security Documents in any safe deposit, safe or receptacle selected by the Security Agent exercising reasonable care or with any company whose business includes undertaking the safe custody of documents selected by the Security Agent exercising reasonable care and may make any such arrangements as it thinks fit for allowing Obligors access to, or its solicitors, attorneys or auditors possession of, such documents when necessary or convenient and the Security Agent shall not be responsible for any loss incurred in connection with any such deposit, access or possession if it has exercised reasonable care in the selection of a safe deposit, safe, receptacle or firm of solicitors or company (save that it shall take reasonable steps to pursue any person who may be liable to it in connection with such loss). |
32.25 | All enforcement action through the Security Agent |
(a) | None of the other Finance Parties shall have any independent power to enforce any of those Security Documents which are executed in favor of the Security Agent only or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to such Security Documents or otherwise have direct recourse to the security and/or guaranties constituted by such Security Documents except through the Security Agent. |
(b) | None of the other Finance Parties shall have any independent power to enforce any of those Security Documents which are executed in their favor or to exercise any rights, discretions or powers or to grant any consents or releases under or pursuant to such Security Documents or otherwise have direct recourse to the security and/or guaranties constituted by such Security Documents except through the Security Agent. If any Finance Party (other than the Security Agent) is a party to any Security Document it shall promptly upon being requested by the Administrative Agent to do so grant a power of attorney or other sufficient authority to the Security Agent to enable the Security Agent to exercise any rights, discretions or powers or to grant any consents or releases under such Security Document. |
32.26 | Co-operation to achieve agreed priorities of application |
32.27 | Indemnity from Trust Property |
(a) | In respect of all liabilities, costs or expenses for which the Obligors are liable under this Agreement, the Finance Parties, K-sure and each Affiliate of the Finance Parties and each officer or employee of the Finance Parties or their Affiliates (each a Relevant Person ) shall be entitled to be indemnified out of the Trust Property in respect of all liabilities, damages, costs, claims, charges or expenses whatsoever properly incurred or suffered by such Relevant Person: |
(i) | in the execution or exercise or bona fide purported execution or exercise of the trusts, rights, powers, authorities, discretions and duties created or conferred by or pursuant to the Finance Documents; |
(ii) | as a result of any breach by an Obligor of any of its obligations under any Finance Document; |
(iii) | in respect of any Environmental Claim made or asserted against a Relevant Person which would not have arisen if the Finance Documents had not been executed; and |
(iv) | in respect of any matter or thing done or omitted in any way in accordance with the terms of the Finance Documents relating to the Trust Property or the provisions of any of the Finance Documents. |
(b) | The rights conferred by this Clause 32.27 are without prejudice to any right to indemnity by law given to trustees generally and to any provision of the Finance Documents entitling the Security Agent or any other person to an indemnity in respect of, and/or reimbursement of, any liabilities, costs or expenses incurred or suffered by it in connection with any of the Finance Documents or the performance of any duties under any of the Finance Documents. Nothing contained in this Clause 32.27 shall entitle the Security Agent or any other person to be indemnified in respect of any liabilities, damages, costs, claims, charges or expenses to the extent that the same arise from such person's own gross negligence or willful misconduct. |
32.28 | Finance Parties to provide information |
32.29 | Release to facilitate enforcement and realization |
32.30 | Undertaking to pay |
32.31 | Additional trustees |
(a) | if the Security Agent reasonably considers such appointment to be in the best interests of the Finance Parties; |
(b) | for the purpose of conforming with any legal requirement, restriction or condition in any jurisdiction in which any particular act is to be performed; or |
(c) | for the purpose of obtaining a judgment in any jurisdiction or the enforcement in any jurisdiction against any person of a judgment already obtained, |
32.32 | Non-recognition of trust |
(a) | in relation to any jurisdiction the courts of which would not recognize or give effect to the trusts expressed to be constituted by this Clause 32, the relationship of the Security Agent and the other Finance Parties shall be construed as one of principal and agent, but to the extent permissible under the laws of such jurisdiction, all the other provisions of this Agreement shall have full force and effect between the parties to this Agreement; and |
(b) | the provisions of this Clause 32 insofar as they relate to the Security Agent in its capacity as trustee for the Finance Parties and the relationship between themselves and the Security Agent as their trustee may be amended by agreement between the other Finance Parties and the Security Agent. The Security Agent may amend all documents necessary to effect the alteration of the relationship between the Security Agent and the other Finance Parties and each such other party irrevocably authorizes the Security Agent in its name and on its behalf to execute all documents necessary to effect such amendments. |
32.33 | The ECA Agent |
(a) | are specified under any Finance Document as being for the ECA Agent to take on behalf of the K-sure Lenders insured under the K-sure Insurance Policy or on behalf of the KEXIM Lenders under the KEXIM Guarantee (as the case may be); |
(b) | are specifically delegated to the ECA Agent by the terms of the K-sure Insurance Policy or the KEXIM Guarantee; or |
(c) | are reasonably incidental thereto, |
(i) | each K-sure Lender and each KEXIM Lender authorizes the ECA Agent to exercise those rights, powers and discretions which are expressly given to the ECA Agent by this Agreement and the other Finance Documents, together with any other reasonably incidental rights, powers and discretions; and |
(ii) | each K-sure Lender appoints the ECA Agent solely for the purpose of: |
(A) | providing, revealing and disclosing, such information and details relating to any Obligor, the Finance Documents and the facilities granted pursuant thereto, to K-sure as K-sure may require from time to time for the purpose of issuing and administering the K-sure Insurance Policies; and |
(B) | making a claim on behalf of the K-sure Lenders under the K-sure Insurance Policies and directing payment of the insurance proceeds under the K-sure Insurance Policies which shall be held by the Security Agent in trust for the K-sure Lenders and for application by the Administrative Agent in accordance with Clause 36 ( Payment Mechanics) of this Agreement. |
(iii) | each KEXIM Lender appoints the ECA Agent solely for the purpose of: |
(A) | providing, revealing and disclosing, such information and details relating to any Obligor, the Finance Documents and the facilities granted pursuant thereto, to KEXIM as KEXIM may require from time to time for the purpose of issuing and administering the KEXIM Guarantee; and |
(B) | making a claim on behalf of the KEXIM Lenders under the KEXIM Guarantee and directing payment of any moneys pursuant to the KEXIM Guarantee which shall be held by the Security Agent in trust for the KEXIM Lenders and for application by the Administrative Agent in accordance with Clause 36 ( Payment Mechanics) of this Agreement. |
32.34 | Ratification of unauthorized action of Administrative Agent |
33 | ECA Specific Provisions |
33.1 | No actions without K-sure Lender consent |
(a) | not to take any action under the relevant K-sure Insurance Policy without the consent of all the K-sure Lenders (which consent shall not be unreasonably withheld or delayed), unless the ECA Agent has reasonably determined that such action would not be detrimental to the insurance coverage provided to the K-sure Lenders thereunder; and |
(b) | to take such actions under the relevant K-sure Insurance Policy (including with respect to any amendment, modification or supplement to that K-sure Insurance Policy) as may be directed by all the K-sure Lenders from time to time; provided that, notwithstanding anything herein or in the relevant K-sure Insurance Policy to the contrary, the ECA Agent shall not be obliged to take any such action or to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties or the exercise of any of its rights or powers under this Agreement or the relevant K-sure Insurance Policy if: |
(i) | it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; or |
(ii) | such action would be contrary to applicable law. |
33.2 | No actions without KEXIM Lender consent |
(a) | not to take any action under the KEXIM Guarantee without the consent of all the KEXIM Lenders (which consent shall not be unreasonably withheld or delayed); and |
(b) | to take such actions under the KEXIM Guarantee (including with respect to any amendment, modification or supplement to the KEXIM Guarantee) as may be directed by all the KEXIM Lenders from time to time; provided that, notwithstanding anything herein or in the KEXIM Guarantee to the contrary, the ECA Agent shall not be obliged to take any such action or to expend or risk its own funds or otherwise incur any liability in the performance of any of its duties or the exercise of any of its rights or powers under this Agreement or the KEXIM Guarantee if: |
(i) | it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; or |
(ii) | such action would be contrary to applicable law. |
33.3 | Limitation on obligation of ECA Agent to request instructions |
33.4 | Ratification of unauthorized action of ECA Agent |
33.5 | Cooperation with the ECA Agent |
(a) | Each Lender and each Obligor undertakes to cooperate with the ECA Agent to comply with any legal requirements imposed on the ECA Agent in connection with the performance of its duties under this Agreement or any other Finance Document and shall supply any information reasonably requested by the ECA Agent in connection with the proper performance of those duties. |
(b) | The ECA Agent undertakes to provide timely notice to KEXIM and K-sure with respect to any matters that require consent from the Required Lenders. |
33.6 | Nature of the ECA Agent's duties |
33.7 | K-sure Lenders' representations |
(a) | no information provided by such K-sure Lender in writing to the ECA Agent or to K-sure prior to the Closing Date was untrue or incorrect in any material respect except to the extent that such K-sure Lender, in the exercise of reasonable care and due diligence prior to giving such information, could not have discovered the error or omission; |
(b) | it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the ECA Agent being in breach of any of its obligations in its capacity as ECA Agent under the relevant K-sure Insurance Policy or the other Finance Documents, or result in the relevant K-sure Lenders being in breach of any of their respective obligations as insured parties under the relevant K-sure Insurance Policy, or which would otherwise prejudice the ECA Agent's ability to make a claim on behalf of the K-sure Lenders under the relevant K-sure Insurance Policy; |
(c) | it has reviewed the relevant K-sure Insurance Policy and is aware of the provisions thereof; |
(d) | the representations and warranties made by the ECA Agent on behalf of each K-sure Lender under the relevant K-sure Insurance Policy are true and correct with respect to such K-sure Lender in all respects. |
33.8 | KEXIM Lenders' representations |
(a) | no information provided by such KEXIM Lender in writing to the ECA Agent or to KEXIM prior to the Closing Date was untrue or incorrect in any material respect except to the extent that |
(b) | it has not taken (or failed to take), and agrees that it shall not take (or fail to take), any action that would result in the ECA Agent being in breach of any of its obligations in its capacity as ECA Agent under the KEXIM Guarantee or the other Finance Documents, or result in the relevant KEXIM Lenders being in breach of any of their respective obligations as insured parties under the KEXIM Guarantee, or which would otherwise prejudice the ECA Agent's ability to make a claim on behalf of the KEXIM Lenders under the relevant KEXIM Guarantee; |
(c) | it has reviewed the KEXIM Guarantee and is aware of the provisions thereof; and |
(d) | the representations and warranties made by the ECA Agent on behalf of each KEXIM Lender under the KEXIM Guarantee are true and correct with respect to such KEXIM Lender in all respects. |
33.9 | Provision of information |
(a) | The ECA Agent shall provide to K-sure any information which it receives from any Obligor or the Administrative Agent pursuant to the Finance Documents and which it is obliged to provide to K-sure under the terms of the relevant K-sure Insurance Policy. |
(b) | The ECA Agent shall provide to KEXIM any information which it receives from any Obligor or the Administrative Agent pursuant to the Finance Documents and which it is obliged to provide to KEXIM under the terms of the KEXIM Guarantee. |
33.10 | Lender communications |
(a) | Each K-sure Lender shall promptly forward to the ECA Agent a copy of any communication relating to K-sure Matters which that K-sure Lender sends to, or receives from, any Obligor or K-sure directly. |
(b) | Each KEXIM Lender shall promptly forward to the ECA Agent a copy of any communication relating to KEXIM Matters which that KEXIM Lender sends to, or receives from, any Obligor or KEXIM directly. |
33.11 | Reimbursement of K-sure Premium and KEXIM Premium |
(a) | Notwithstanding the provisions of Clause 33.13 ( Application of receipts ), each K-sure Lender severally agrees to reimburse the ECA Agent on its demand in respect of the K-sure Premium (or any part of it) if the K-sure Premium (or any part of it) is paid by the ECA Agent and the ECA Agent is not fully reimbursed in accordance with the terms of this Agreement. |
(b) | Notwithstanding the provisions of Clause 33.13 ( Application of receipts ), each KEXIM Lender severally agrees to reimburse the ECA Agent on its demand in respect of the KEXIM Premium (or any part of it) if the KEXIM Premium (or any part of it) is paid by the ECA Agent and the ECA Agent is not fully reimbursed in accordance with the terms of this Agreement. |
33.12 | Claims under K-sure Insurance Policies and KEXIM Guarantee |
(a) | Each K-sure Lender acknowledges and agrees that, unless otherwise provided for in the relevant K-sure Insurance Policy, it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with any of the K-sure Insurance Policies except through the ECA Agent and that all of the rights of the K-sure Lenders under any of the K-sure Insurance Policies shall only be exercised by the ECA Agent. |
(b) | Each KEXIM Lender acknowledges and agrees that, unless otherwise provided for in the KEXIM Guarantee, it shall have no entitlement to make any claim or to take any action whatsoever under or in connection with the KEXIM Guarantee except through the ECA Agent and that all of the rights of the KEXIM Lenders under the KEXIM Guarantee shall only be exercised by the ECA Agent. |
33.13 | Application of receipts |
(a) | Except as expressly stated to the contrary in any Finance Document, any moneys which the ECA Agent receives or recovers shall be transferred to the Administrative Agent for application in accordance with Clause 36 ( Payment Mechanics) of this Agreement. |
(b) | The parties agree that any unpaid K-sure Premium and any unpaid fees, costs and expenses of K-sure shall constitute amounts then due and payable in respect of the Loan under the Finance Documents for the purposes of the amounts then due and payable in respect of Clause 36 ( Payment Mechanics) of this Agreement. |
(c) | The parties agree that any unpaid KEXIM Premium and any unpaid fees, costs and expenses of KEXIM shall constitute amounts then due and payable in respect of the Loan under the Finance Documents for the purposes of the amounts then due and payable in respect of Clause 36 ( Payment Mechanics) of this Agreement. |
33.14 | Assignment to K-sure |
(a) | each of the K-sure Lenders shall assign to K-sure such part of their respective contributions in respect of that K-sure Tranche and (to the extent that there remain any) of their respective contributions in respect of that K-sure Tranche as is equal to the amount simultaneously paid to it by K-sure under the relevant K-sure Insurance Policy by means of a Substitution Certificate or such other evidence of assignment as may be reasonably required by K-sure, provided that this shall not be construed as depriving any K-sure Lender of its rights to recover any part of the Total Commitments, the Loan or otherwise of the Unpaid Sum still owing to it after receipt of the relevant K-sure Insurance Policy insurance proceeds; |
(b) | K-sure shall, upon being validly assigned rights under the Finance Documents pursuant to Clause 30.1 ( Assignment by the Lenders ), be an assignee and as such shall be entitled to the rights and benefits of the K-sure Lenders under this Agreement and the other Finance Documents in respect of such payment to the extent of its interest; |
(c) | without prejudice to the indemnity provisions in Clause 14 ( Other Indemnities ), the Borrower and/or any Obligor shall indemnify K-sure in respect of any actual, reasonable costs or expenses (including legal fees) suffered or incurred by K-sure in connection with the assignment referred to in this Clause 33.14 or in connection with any review by K-sure of any Event of Default or dispute between the Borrower and/or any Obligor and the Finance Parties occurring prior to the assignment referred to in this Clause 33.14; |
(d) | with respect to the obligations of the Borrower and the Security Parties owed to the Administrative Agent and/or the K-sure Lenders under the Finance Documents, such obligations shall additionally be owed to K-sure by way of subrogation of the rights of the K-sure Lenders; |
(e) | the Borrower agrees to cooperate with the Administrative Agent, the ECA Agent and the Lenders, as the case may be, in giving effect to any subrogation or assignment referred to in this Clause 33.14 and to take all actions requested by the Administrative Agent, any K-sure Lender, the ECA Agent or K-sure, in each case to the extent capable of being done by it, to implement or give effect to such subrogation or assignment; |
(f) | on the date of any subrogation to, or (as applicable) assignment of any rights referred to in this Clause 33.14: |
(i) | all further rights and benefits (including the right to receive commission in respect thereof but not any duty or other obligations) whatsoever of the relevant K-sure Lender in relation to the portion of the Loan or the rights and benefits to which such assignment or rights of subrogation relate under or arising out of this Agreement shall, to the extent of such assignment or rights of subrogation, be vested in and be for the benefit of K-sure; and |
(ii) | references in this Agreement to the K-sure Lenders shall, where relevant in the context thereafter be construed so as to include K-sure in relation to such rights and benefits as are assigned to, or to which K-sure has rights of subrogation; and |
(g) | the representations and warranties made in this Agreement in favor of the relevant K-sure Lender shall survive any assignment or transfer pursuant to this Clause 33.14 and shall also inure to the benefit of K-sure; |
(a) | Notwithstanding any other provision of this Agreement and, in addition to, and without prejudice to, any right of indemnification or subrogation KEXIM (in its capacity as guarantor under the KEXIM Guarantee) may have at law, in equity or otherwise, each of the Parties agrees that KEXIM (in such capacity) will be subrogated to the rights of the KEXIM Lenders under the KEXIM Guaranteed Tranche to the extent of any payment made by KEXIM (in such capacity) under the KEXIM Guarantee (each such payment being a KEXIM Guarantee Payment ) and the KEXIM Lenders shall provide all assistance required by KEXIM (in such capacity) to enforce its rights under the Finance Documents following such subrogation. |
(b) | Furthermore, the Borrower consents to any assignment by the KEXIM Lenders of any or all of its rights under the Finance Documents in respect of the KEXIM Guaranteed Tranche to KEXIM (in its capacity as guarantor under the KEXIM Guarantee) as may be required by the provisions of the KEXIM Guarantee. |
33.16 | Reimbursement to KEXIM |
(a) | Without prejudice to Clause 33.15 ( Subrogation to KEXIM ) , t h e Obligors shall , within five (5) Business Days of demand by KEXIM, reimburse KEXIM for any KEXIM Guarantee Payment made by KEXIM from time to time and pay to KEXIM in accordance with the terms of this Agreement in an amount equal to any KEXIM Guarantee Payment plus interest calculated in |
(b) | For the avoidance of doubt, Clause 13 ( Increased Costs ) will apply in respect of any reimbursement made pursuant to this Clause 33.16. |
33.17 | Obligations to KEXIM Unconditional |
33.18 | Satisfaction of Obligations to KEXIM |
33.19 | Voting Rights of KEXIM |
33.20 | Cooperation with K-sure; Events of Default |
(a) | Each of the ECA Agent, the Administrative Agent and the Security Agent shall provide to K-sure any information which it receives from the Borrower and any other Obligor pursuant to the Finance Documents. |
(b) | Each of the ECA Agent, the Administrative Agent and the Security Agent agrees that it shall consult with K-sure wherever reasonably practical prior to issuing a notice pursuant to Clause 28 ( Events of Default ), provided that K-sure's consent shall not be required in order for any such notice of default to be issued (other than by K-sure to the extent required under any K-sure Insurance Policy). |
(c) | Notwithstanding anything to the contrary in any Finance Document: |
(i) | if an Event of Default has occurred and is continuing, the Administrative Agent shall put to the vote of the Required Lenders and K-sure the question of whether the provisions of the Finance Documents as to the consequences of the occurrence of such Event of Default should apply and/or whether the remedies afforded under Clause 28 ( Events of Default ) of this Agreement should be invoked. Should the Required Lenders and K-sure vote be in favor of any of actions described in the preceding sentence, the Administrative Agent and the Security Agent shall be entitled to take the necessary steps to enforce the Finance Documents and the Lenders shall agree and execute and otherwise perfect and do all such acts and things necessary for such purpose; |
(ii) | in the event the Required Lenders' and K-sure's respective positions are inconsistent, the Administrative Agent shall discuss with the ECA Agent with a view to reaching a |
33.21 | Cooperation with KEXIM; Events of Default |
(a) | Each of the ECA Agent, the Administrative Agent and the Security Agent shall provide to KEXIM any information which it receives from the Borrower and any other Obligor pursuant to the Finance Documents with respect to the KEXIM Guaranteed Tranche. |
(b) | Each of the ECA Agent, the Administrative Agent and the Security Agent agrees that it shall consult with KEXIM wherever reasonably practical prior to issuing a notice pursuant to Clause 28 ( Events of Default ), provided that KEXIM's consent shall not be required in order for any such notice of default to be issued. |
(c) | Notwithstanding anything to the contrary in any Finance Document: |
(i) | if an Event of Default has occurred and is continuing, the Administrative Agent shall put to the vote of the Required Lenders and KEXIM the question of whether the provisions of the Finance Documents as to the consequences of the occurrence of such Event of Default should apply and/or whether the remedies afforded under Clause 28 ( Events of Default ) of this Agreement should be invoked. Should the Required Lenders and KEXIM vote be in favor of any of actions described in the preceding sentence, the Administrative Agent and the Security Agent shall be entitled to take the necessary steps to enforce the Finance Documents and the Lenders shall agree and execute and otherwise perfect and do all such acts and things necessary for such purpose; |
(ii) | in the event the Required Lenders' and KEXIM's respective positions are inconsistent with respect to the KEXIM Guaranteed Tranche, the Administrative Agent shall discuss with the ECA Agent with a view to reaching a mutually agreeable position. Failing agreement between the Administrative Agent (acting on behalf of the Required Lenders) and the ECA Agent (acting on behalf KEXIM), the Administrative Agent and the Security Agent shall be entitled to act in accordance with the instructions of the Required Lenders, including in relation to any waiver of an Event of Default and enforcement of remedies related thereto, provided that this does not result in the KEXIM Guarantee being lost, cancelled, unenforceable or invalid. |
33.22 | K-sure override |
(a) | each of the K-sure Lenders shall be authorized to take all such actions as they may deem necessary to ensure that all requirements of K-sure under or in connection with each of the K-sure Insurance Policies are complied with; |
(b) | no K-sure Lender shall be obliged to do anything if, in its opinion (upon consultation with the ECA Agent), to do so could result in a breach of any requirements of K-sure under or in connection with a K-sure Insurance Policy or affect the validity of a K-sure Insurance Policy; and |
(c) | each of the K-sure Lenders will agree to accept the instructions as advised to them by the ECA Agent or K-sure and to act in conformity therewith in connection with their obligations under this Agreement. |
33.23 | KEXIM Override |
(a) | Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall oblige any Finance Party to act (or omit to act) in a manner that is inconsistent with any requirement of KEXIM under or in connection with the KEXIM Guarantee and, in particular: |
(i) | the Parties agree that the ECA Agent shall be authorised to take all such actions as it may deem necessary to ensure that all requirements of KEXIM under or in connection with the KEXIM Guarantee are complied with; and |
(ii) | the ECA Agent shall not be obliged to do anything that, in its opinion, could result in a breach of any requirements of KEXIM under or in connection with the KEXIM Guarantee or affect the validity of the KEXIM Guarantee. |
(b) | Nothing in this Clause 33.23 ( KEXIM Override ) shall affect the obligations of the Borrower under this Agreement. |
33.24 | Liability for K-sure Premiums and KEXIM Premium |
(a) | The Borrower shall be responsible and shall bear the cost of the K-sure Premium of each K-sure Insurance Policy and shall pay the relevant K-sure Premium for each Advance on the Utilization Date relating to that Advance. |
(b) | The Borrower shall be responsible and shall bear the cost of the KEXIM Premium of the KEXIM Guarantee and shall pay the KEXIM Premium for each Advance on the Utilization Date relating to that Advance. |
33.25 | K-sure Insurance Policies and KEXIM Guarantee |
(a) | The Borrower will not, without the ECA Agent's prior written consent, do or omit to do anything which may to its knowledge adversely prejudice the K-sure Lenders' rights under any K-sure Insurance Policy. |
(b) | The ECA Agent and the K-sure Lenders are responsible for complying with the terms of each K-sure Insurance Policy from which each K-sure Lender benefits. |
(c) | The Borrower will not, without the ECA Agent's prior written consent, do or omit to do anything which may to its knowledge adversely prejudice the KEXIM Lenders' rights under the KEXIM Guarantee. |
(d) | The ECA Agent and the KEXIM Lenders are responsible for complying with the terms of the KEXIM Guarantee from which each KEXIM Lender benefits. |
33.26 | K-sure Requirements |
(a) | in order to comply with, and carry out the transactions contemplated by, the Finance Documents and any documents required to be delivered under the Finance Documents; and |
(b) | in order for the beneficiaries under each K-sure Insurance Policy to comply with and continue to benefit from that K-sure Insurance Policy or to maintain the effectiveness of that K-sure Insurance Policy. |
33.27 | KEXIM Requirements |
(a) | in order to comply with, and carry out the transactions contemplated by, the Finance Documents and any documents required to be delivered under the Finance Documents; and |
(b) | in order for the beneficiaries under the KEXIM Guarantee to comply with and continue to benefit from the KEXIM Guarantee or to maintain the effectiveness of the KEXIM Guarantee. |
33.28 | Protection of each of the K-sure Insurance Policies |
33.29 | Protection of the KEXIM Guarantee |
33.30 | Notification to K-sure |
(a) | The Borrower will deliver a notice to each of the Administrative Agent and the ECA Agent promptly after it becomes aware of the occurrence of any political or commercial risk covered by a K-sure Insurance Policy and will: |
(i) | pay any additional premium payable to K-sure in relation to the relevant K-sure Insurance Policy; and |
(ii) | cooperate with the ECA Agent on its reasonable request to take all steps necessary on the part of the Borrower to ensure that the relevant K-sure Insurance Policy remains in full force and effect throughout the Facility Period which shall include providing the ECA Agent with any information, reasonably requested by the ECA Agent, relating to any material commercial facts which could result in a Material Adverse Change. |
(b) | In addition, the Borrower shall promptly supply to the ECA Agent copies of all financial or other information reasonably required by the ECA Agent to satisfy any request for information made by K-sure pursuant to a K-sure Insurance Policy. |
(c) | The Borrower agrees that it shall be reasonable for the ECA Agent to make a request under this Clause 33 if it is required to do so as a condition of maintaining a K-sure Insurance Policy in full force and effect. |
33.31 | Prior consultation with K-sure |
(a) | to consult with K-sure, prior to the exercise of certain decisions under the Finance Documents to which that Borrower is a party (including the exercise of such voting rights in relation to any substantial amendment to any Finance Document); and |
(b) | to follow certain instructions given by K-sure. |
33.32 | Prior consultation with KEXIM |
(a) | to consult with KEXIM, prior to the exercise of certain decisions under the Finance Documents to which that Borrower is a party (including the exercise of such voting rights in relation to any substantial amendment to any Finance Document); and |
(b) | to follow certain instructions given by KEXIM. |
33.33 | Demand under K-sure Insurance Policies |
33.34 | Replacement of the ECA Agent |
(a) | After consultation with the Borrower, any of the KEXIM Lenders or K-sure Lenders may, with the prior consent of all the KEXIM Lenders and K-sure Lenders (other than any KEXIM Lender or K-sure Lender which is also the ECA Agent), KEXIM and K-sure and by giving 30 days' notice to the ECA Agent, replace the ECA Agent by appointing a successor ECA Agent. |
(b) | The retiring ECA Agent shall make available to the successor ECA Agent such documents and records and provide such assistance as the successor ECA Agent may reasonably request for the purposes of performing its functions as ECA Agent under the Finance Documents. |
(c) | The appointment of the successor ECA Agent shall take effect on the date specified in the notice from the Required Lenders to the retiring ECA Agent. As from this date, the retiring ECA Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under paragraph (b) above) and any agency fees for the account of the retiring ECA Agent shall cease to accrue from (and shall be payable on) that date. |
(d) | Any successor ECA Agent and each of the other Parties shall have the same rights and obligations among themselves as they would have had if such successor had been an original Party. |
34 | Conduct of business by the Finance Parties |
34.1 | Finance Parties tax affairs |
(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. |
34.2 | Finance Parties acting together |
(a) | Notwithstanding Clauses 2.3(a) and 2.3(b) ( Finance Parties' rights and obligations ), if the Administrative Agent makes a declaration under Clause 28.26 ( Acceleration ) the Administrative Agent shall, in the names of all the Finance Parties, take such action on behalf of the Finance Parties and conduct such negotiations with the Obligors and generally administer the Facility in accordance with the wishes of the Required Lenders. All the Finance Parties shall be bound by the provisions of this clause and no Finance Party shall be entitled to take action independently against any Obligor or any of its assets without the prior consent of the Required Lenders. |
(b) | Paragraph (a) above shall not override Clause 32 ( Roles of Administrative Agent , Security Agent, Mandated Lead Arrangers and ECA Agent ) as it applies to the Security Agent. |
34.3 | Required Lenders |
(a) | Where any Finance Document provides for any matter to be determined by reference to the opinion of, or to be subject to the consent, approval or request of, the Required Lenders or for any action to be taken on the instructions of the Required Lenders (a majority decision ), such majority decision shall (as between the Lenders) only be regarded as having been validly given or issued by the Required Lenders if all the Lenders shall have received prior notice of the matter on which such majority decision is required and the relevant majority of Lenders shall have given or issued such majority decision. However (as between any Obligor and the Finance Parties) the relevant Obligor shall be entitled (and bound) to assume that |
(b) | If, within twenty Business Days of the Administrative Agent dispatching to each Lender a notice requesting instructions (or confirmation of instructions) from the Lenders or the agreement of the Lenders to any amendment, modification, waiver, variation or excuse of performance for the purposes of, or in relation to, any of the Finance Documents, the Administrative Agent has not received a reply specifically giving or confirming or refusing to give or confirm the relevant instructions or, as the case may be, approving or refusing to approve the proposed amendment, modification, waiver, variation or excuse of performance, then (until such Lender responds otherwise at a later date) the Administrative Agent shall treat any Lender which has not so responded as having indicated a desire not to be bound by such proposed amendment, modification, waiver, variation or excuse of performance. |
(c) | For the purposes of paragraph (b) above, any Lender which notifies the Administrative Agent of a wish or intention to abstain on any particular issue shall be treated as if it had not responded. |
(d) | Paragraphs (b) and (c) above shall not apply in relation to those matters referred to in, or the subject of, Clause 35.5 ( Exceptions ). |
34.4 | Conflicts |
(a) | The Borrower acknowledges that the Administrative Agent, the Security Agent, the Mandated Lead Arrangers or any Lender and its Affiliates (together the Lender Group ) may be providing debt finance, equity capital or other services (including financial advisory services) to other persons with which the Borrower may have conflicting interests in respect of the Facility or otherwise. |
(b) | No member of a Lender Group shall use confidential information gained from any Obligor by virtue of the Facility or its relationships with any Obligor in connection with their performance of services for other persons. This shall not, however, affect any obligations that any member of a Lender Group has as Administrative Agent in respect of the Finance Documents. The Borrower also acknowledges that no member of a Lender Group has any obligation to use or furnish to any Obligor information obtained from other persons for their benefit. |
35 | Sharing among the Finance Parties |
35.1 | Payments to Finance Parties |
(a) | the Recovering Finance Party shall, within three (3) Business Days, notify details of the receipt or recovery, to the Administrative Agent; |
(b) | the Administrative Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Administrative Agent and distributed in accordance with Clause 36 ( Payment mechanics ), without taking account of any Tax which would be imposed on the Administrative Agent in relation to the receipt, recovery or distribution; and |
(c) | the Recovering Finance Party shall, within three (3) Business Days of demand by the Administrative Agent, pay to the Administrative Agent an amount (the Sharing Payment ) equal to such receipt or recovery less any amount which the Administrative Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 36.5(a) ( Repayment ). |
35.2 | Redistribution of payments |
35.3 | Recovering Finance Party's rights |
35.4 | Reversal of redistribution |
(a) | each Sharing Finance Party shall, upon request of the Administrative Agent, pay to the Administrative Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the Redistributed Amount ); and |
(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. |
35.5 | Exceptions |
(a) | This Clause 35 shall not apply to the extent that the Recovering Finance Party would not, after making any payment pursuant to this clause, have a valid and enforceable claim against the relevant Obligor. |
(b) | A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if: |
(i) | it notified that other Finance Party of the legal or arbitration proceedings; |
(ii) | the taking legal or arbitration proceedings was in accordance with the terms of this Agreement; and |
(iii) | that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings. |
35.6 | Transaction and Loan Services |
35.7 | Application of insurance proceeds under K-sure Insurance Policies |
(a) | if any K-sure Lender receives any insurance proceeds under a K-sure Insurance Policy other than from the Administrative Agent or the ECA Agent, it shall pay such moneys to the Administrative Agent; |
(b) | notwithstanding the provisions of Clause 36.5 ( Repayment ), any insurance proceeds received by any K-sure Lender under a K-sure Insurance Policy other than from the Administrative Agent shall be applied by the Administrative Agent only in accordance with the provisions of paragraphs (a) and (b) of Clause 36.5 ( Repayment ) as the case may be, in favor of the K-sure Lenders, and, for the avoidance of doubt, no such insurance proceeds shall in any circumstances be available to the Borrower or any other Obligor; and |
(c) | any unpaid K-sure Premium and any unpaid fees, costs and expenses of K-sure shall constitute amounts then due and payable in respect of the K-sure Tranche under the Finance Documents (and any of them) for the purposes of the amounts then due and payable in respect of paragraphs (a) and (b) of Clause 36.5 ( Repayment ) as the case may be. |
(a) | if any KEXIM Lender receives any moneys under the KEXIM Guarantee other than from the Administrative Agent or the ECA Agent, it shall pay such moneys to the Administrative Agent; |
(b) | notwithstanding the provisions of Clause 36.5 ( Repayment ), any moneys received by any KEXIM Lender under the KEXIM Guarantee other than from the Administrative Agent shall be applied by the Administrative Agent only in accordance with the provisions of paragraphs (a) and (b) of Clause 36.5 ( Repayment ) as the case may be, in favor of the KEXIM Lenders, and, for the avoidance of doubt, no such moneys shall in any circumstances be available to the Borrower or any other Obligor; and |
(c) | any unpaid KEXIM Premium and any unpaid fees, costs and expenses of KEXIM shall constitute amounts then due and payable in respect of the KEXIM Guaranteed Tranche under the Finance Documents (and any of them) for the purposes of the amounts then due and payable in respect of paragraphs (a) and (b) of Clause 36.5 ( Repayment ) as the case may be. |
36 | Payment mechanics |
36.1 | Payments to the Administrative Agent |
(a) | On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (other than a Hedging Contract), that Obligor or Lender shall make the same available to the Administrative Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Administrative Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment. |
(b) | Payment shall be made to such account and with such bank as the Administrative Agent specifies. |
36.2 | Distributions by the Administrative Agent |
36.3 | Distributions to an Obligor |
36.4 | Clawback and pre-funding |
(a) | Where a sum is to be paid to the Administrative Agent under the Finance Documents for another Party, the Administrative Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum. |
(b) | Unless paragraph (c) below applies, if the Administrative Agent pays an amount to another Party and it proves to be the case that the Administrative Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by the Administrative Agent shall on demand refund the same to the Administrative Agent together with interest on that amount from the date of payment to the date of receipt by the Administrative Agent, calculated by the Administrative Agent to reflect its cost of funds. |
(c) | If the Administrative Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Administrative 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 a Borrower: |
(i) | the Administrative Agent shall notify the Borrower of that Lender's identity and the Borrower shall on demand refund it to the Administrative Agent; and |
(ii) | the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower, shall on demand pay to the Administrative Agent the amount (as certified by the Administrative Agent) which will indemnify the Administrative Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender. |
36.5 | Repayment |
(a) | If the Administrative Agent receives a payment for application against amounts due under the Finance Documents (including any proceeds from the enforcement of security under the Security Documents), the Administrative Agent shall apply that payment towards the obligations of that Obligor under those Finance Documents in the following order: |
(i) | first , in or towards payment pro rata of any unpaid amount owing to the Administrative Agent, the Security Trustee, the Mandated Lead Arrangers or the ECA Agent under the Finance Documents; |
(ii) | second , in or towards payment to the Lenders pro rata of any amount owing to the Lenders under Clause 32.11 ( Lenders' indemnity to the Administrative Agent ) including any amount owing to the Lenders under Clause 32.11 ( Lenders' indemnity to the Administrative Agent ) as a result of such clause being extended to the Security Trustee by Clause 32.21 ( Application of certain clauses to Security Agent ); |
(iii) | third , in or towards the payment to the Lenders pro rata of any accrued interest, fee or commission due to them but unpaid under the Finance Documents; |
(iv) | fourth , in or towards payment to the Lenders pro rata of any principal which is due but unpaid under the Finance Documents; |
(v) | fifth , in or towards payment to the Lenders pro rata of any other sum due but unpaid under the Finance Documents, |
(vi) | sixth , in or towards the payment to the Swap Banks pro rata of any accrued interest, fee or commission due to them but unpaid under the Hedging Contracts; |
(vii) | seventh , in or towards payment to the Swap Banks pro rata of any other sum due but unpaid under the Hedging Contracts |
(viii) | eighth , in or towards satisfaction of the hedging exposure of each hedge counterparty (calculated as at the actual Early Termination Date (as defined in the relevant Master Agreement) applying to each particular Hedging Contract), or if no such Early Termination Date shall have occurred, calculated as if an Early Termination Date occurred on the date of application or distribution hereunder); and |
(ix) | ninth , as to the balance (if any), for the Obligors by or from whom or from whose assets the relevant amounts were paid, received or recovered or other person entitled to them. |
(b) | The Administrative Agent shall, if so directed by all the Lenders, vary the order set out in paragraphs (ii) to (v) of paragraph (a). |
(c) | Paragraph (a) above will override any appropriation made by an Obligor. |
36.7 | Business Days |
(a) | Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
(b) | During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date. |
36.8 | Currency of account |
(a) | Subject to Clauses 36.8(b) and 36.8(c) ( Currency of account ), dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document. |
(b) | A repayment of all or part of the Loan or an Unpaid Sum and each payment of interest shall be made in dollars on its due date. |
(c) | Each payment in respect of the amount of any costs, expenses or Taxes or other losses shall be made in dollars and, if they were incurred in a currency other than dollars, the amount payable under the Finance Documents shall be the equivalent in dollars of the relevant amount in such other currency on the date on which it was incurred. |
(d) | All moneys received or held by the Security Agent under a Security Document in a currency other than dollars may be sold for dollars and the Obligor which executed that Security Document shall indemnify the Security Agent against the full cost in relation to the sale. The Security Agent will not have any liability to that Obligor in respect of any loss resulting from any fluctuation in exchange rates after the sale. |
36.9 | Disruption to payment systems etc. |
(a) | the Administrative Agent may, and shall if requested to do so by the Borrower, consult with the Borrower with a view to agreeing with the Borrower such changes to the operation or administration of the Facility as the Administrative Agent may deem necessary in the circumstances; |
(b) | the Administrative Agent shall not be obliged to consult with the Borrower in relation to any changes mentioned in Clause 36.9(a) ( Disruption to payment systems etc. ) above if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes; |
(c) | any such changes agreed upon by the Administrative Agent and the Borrower shall (whether or not it is finally determined that a Payment Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents; and |
(d) | the Administrative Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Administrative Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 36.9. |
36.10 | Set-off |
37 | Notices |
37.2 | Addresses |
(a) | in the case of each Obligor, that identified with its name in Schedule 1 ( The original parties ); |
(b) | in the case of any Finance Party which is a Party, that identified with its name in Schedule 1 ( The original parties ); and |
(c) | in the case of any Finance Party which is not a Party, that identified in any Finance Document to which it is a party; |
37.3 | Delivery |
(a) | Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective when received in legible form: |
(i) | if by way of fax, when received in legible form; or |
(ii) | if by way of letter, when it has been left at the relevant address or five (5) Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; |
(b) | Any communication or document to be made or delivered to the Administrative Agent or the Security Agent (as the case may be) will be effective only when actually received by the Administrative Agent or the Security Agent (as the case may be) and then only if it is expressly marked for the attention of the department or officer identified with the Administrative Agent's or the respective Security Trustee's (as the case may be) signature below (or any substitute department or officer as the Administrative Agent or the Security Agent shall specify for this purpose). |
(c) | Any communication or document made or delivered to the Borrower in accordance with this clause will be deemed to have been made or delivered to each of the other Obligors. |
(d) | All notices from or to an Obligor shall be sent through the Administrative Agent or the Security Agent (as the case maybe). |
37.4 | Notification of address and fax number |
37.5 | Electronic communication |
(a) | Any communication to be made between the Administrative Agent or the Security Agent (as the case may be) and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Administrative Agent or the Security Agent (as the case may be) and the relevant Lender agree that, unless and until notified to the contrary, this is to be an accepted form of communication and if the relevant parties: |
(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. |
(b) | Any electronic communication made between the Administrative Agent, the Security Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Administrative Agent or the Security Agent (as the case may be) only if it is addressed in such a manner as the Administrative Agent shall specify for this purpose. |
37.6 | English language |
(a) | in English; or |
(b) | if not in English, and if so required by the Administrative Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document. |
38 | Calculations and certificates |
38.1 | Accounts |
38.2 | Certificates and determinations |
38.3 | Day count convention |
39 | Partial invalidity |
40 | Remedies and waivers |
41 | Amendments and Waivers |
41.1 | Required consents |
(a) | Subject to Clause 41.2 ( All Lender matters ) and Clause 41.3 (Other exceptions), any term of the Finance Documents may be amended or waived with the consent of the Administrative Agent (acting on the instructions of the Required Lenders) and, if it affects the rights and obligations of the Administrative Agent or the Security Agent, the consent of the Administrative Agent or the Security Agent and any such amendment or waiver agreed or given by the Administrative Agent will be binding on all the Finance Parties. |
(b) | The Administrative Agent may (or, in the case of the Security Documents, instruct the Security Agent to) effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 41. |
(c) | Without prejudice to the generality of Clause 32.7 (Rights and discretions of the Administrative Agent) , the Administrative Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement. |
(d) | Each Obligor agrees to any such amendment or waiver permitted by this Clause 41 which is agreed to by the Borrower. |
41.2 | All Lender matters |
(a) | the definition of " Required Lenders" in Clause 1.1 ( Definitions ); |
(b) | the definition of "Last Availability Date" in Clause 1.1 ( Definitions ); |
(c) | an extension to the date of payment of any amount under the Finance Documents; |
(d) | a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable or the rate at which they are calculated; |
(e) | an increase in, or an extension of, any Commitment or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders ratably under the Facility; |
(f) | a change to the Borrower or any other Obligor; |
(g) | any provision which expressly requires the consent or approval of all the Lenders; |
(h) | Clause 2.3 ( Finance Parties' rights and obligations ), Clause 35.1 ( Payments to Finance Parties ) or this Clause 41; |
(i) | the order of distribution under Clause 36.5 ( Repayment ); |
(j) | the order of distribution under Clause 32.23 ( Order of application ); |
(k) | the currency in which any amount is payable under any Finance Document; |
(l) | an increase in any Commitment or the Total Commitments, an extension of any period within which the Facility is available for Utilization or any requirement that a cancellation of Commitments reduces the Commitments ratably; |
(m) | the nature or scope of the Collateral or the manner in which the proceeds of enforcement of the Security Documents are distributed; or |
(n) | the circumstances in which the security constituted by the Security Documents are permitted or required to be released under any of the Finance Documents; |
41.3 | Other exceptions |
(a) | Amendments to or waivers in respect of the Hedging Contracts may only be agreed by the relevant Swap Bank. |
(b) | An amendment or waiver which relates to the rights or obligations of the Administrative Agent or the Security Agent in their respective capacities as such (and not just as a Lender) may not be effected without the consent of the Administrative Agent or the Security Agent (as the case may be). |
(c) | Notwithstanding Clauses 41.2 ( All Lender matters ) and 41.3 ( Other exceptions ), the Administrative Agent may make technical amendments to the Finance Documents arising out of manifest errors on the face of the Finance Documents, where such amendments would not prejudice or otherwise be adverse to the interests of any Finance Party without any reference or consent of the Finance Parties. |
(a) | any Collateral from the security constituted by any Security Document; or |
(b) | any Obligor from any of its guaranty or other obligations under any Finance Document. |
41.5 | Release of an Upstream Guarantor and of Upstream Guarantors' right of contribution |
(a) | that Retiring Upstream Guarantor is released by each other Upstream Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Upstream Guarantor arising by reason of the performance by any other Upstream Guarantor of its obligations under the Finance Documents; and |
(b) | each other Upstream Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Upstream Guarantor. |
41.6 | Disenfranchisement of Defaulting Lenders |
(a) | For so long as a Defaulting Lender has any undrawn Commitment, in ascertaining: |
(i) | the Required Lenders; or |
(ii) | whether: |
(A) | any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments under the Facility; or |
(B) | the agreement of any specified group of Lenders, |
(b) | For the purposes of Clause 41.6(a) ( Disenfranchisement of Defaulting Lenders ), the Administrative Agent may assume that the following Lenders are Defaulting Lenders: |
(i) | any Lender which has notified the Administrative Agent that it has become a Defaulting Lender; and |
(ii) | any Lender in relation to which it is aware that any of the events or circumstances referred to in paragraphs (a), (b) or (c) of the definition of Defaulting Lender has occurred, |
41.7 | Excluded Commitments |
(a) | its Commitment or its participation in the Loan shall not be included for the purpose of calculating the Total Commitments or the amount of the Loan when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments or the amount of the Loan has been obtained to approve that request; and |
(b) | its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request. |
41.8 | Replacement of a Defaulting Lender |
(a) | The Borrower may, at any time a Lender has become and continues to be a Defaulting Lender, by giving two (2) Business Days' prior written notice to the Administrative Agent and such Lender replace such Lender by requiring such Lender to (and to the extent permitted by law such Lender shall) assign pursuant to Clause 30 ( Changes to the Lenders ) all (and not part only) of its rights under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a Replacement Lender ) selected by the Borrower, which is acceptable to the Administrative Agent with the consent of the Required Lenders (other than the Lender the Borrower desire to replace), and which confirms its willingness to undertake and does undertake all the obligations or all the relevant obligations of the transferring Lender in accordance with Clause 30 ( Changes to the Lenders ) for a purchase price in cash payable at the time of transfer which is either: |
(i) | in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Loan and all accrued interest, Break Costs and other amounts payable in relation thereto under the Finance Documents; or |
(ii) | in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrower and which does not exceed the amount described in paragraph (i) above. |
(b) | Any assignment by a Defaulting Lender pursuant to this clause shall be subject to the following conditions: |
(i) | the Borrower shall have no right to replace the Administrative Agent, Security Agent or the ECA Agent; |
(ii) | neither the Administrative Agent nor the Defaulting Lender shall have any obligation to the Borrower to find a Replacement Lender; |
(iii) | the assignment must take place no later than three (3) Business Days after the notice referred to in Clause 41.8(a) ( Replacement of a Defaulting Lender ) above; |
(iv) | in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; |
(v) | any requirements under the relevant K-sure Insurance Policy; and |
(vi) | the Defaulting Lender shall only be obliged to assign its rights pursuant to Clause 41.8(a) ( Replacement of a Defaulting Lender ) above once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that assignment to the Replacement Lender. |
(c) | The Defaulting Lender shall perform the checks described in Clause 41.8(b)(v) ( Replacement of a Defaulting Lender ) above as soon as reasonably practicable following delivery of a notice referred to in Clause 41.8(a) ( Replacement of a Defaulting Lender ) and shall notify the Administrative Agent and the Borrower when it is satisfied that it has complied with those checks. |
41.9 | K-sure |
(a) | K-sure shall not have any obligations or liabilities under this Agreement; |
(b) | K-sure shall be a third party beneficiary of the terms of this Agreement and the rights expressed to be for its benefit or exercisable by it under this Agreement; and |
42 | Counterparts |
43 | Governing law |
44 | Enforcement |
44.1 | Submission to jurisdiction; waivers |
44.2 | Service of process |
44.3 | Non-exclusive jurisdiction |
44.4 | WAIVER OF JURY TRIAL |
45 | Patriot Act |
46 | Pledge to Federal Reserve Banks |
Name
:
|
Dorian LPG Finance LLC
|
Jurisdiction of formation
|
Marshall Islands
|
Registration number (or equivalent, if any)
|
963243
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of process and notices
|
c/o Dorian LPG (USA) LLC
27 Signal Road
Stamford, CT 06902
|
Name
:
|
Comet LPG Transport LLC
|
Jurisdiction of formation
|
Marshall Islands
|
Registration number (or equivalent, if any)
|
962663
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of process and notices
|
c/o Dorian LPG (USA) LLC
27 Signal Road
Stamford, CT 06902
|
Name
:
|
Dorian Houston LPG Transport LLC
|
Name
:
|
Dorian Amsterdam LPG Transport LLC
|
Name
:
|
Dorian Geneva LPG Transport LLC
|
Name
:
|
Dorian LPG Ltd.
|
Jurisdiction of formation
|
Marshall Islands
|
Registration number (or equivalent, if any)
|
62405
|
Registered office
|
Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960
|
Address for service of process and notices
|
Dorian LPG Ltd.
Attention: Mr. Ted Young, CFO
27 Signal Road
Stamford, CT 06902
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
17th Floor, 100 Park Ave
NY 10017, New York, USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
|
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
17th Floor, 100 Park Ave
NY 10017, New York, USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Name
:
|
ING Bank N.V., London Branch
|
Facility Office, address, fax number and attention details for notices
|
60 London Wall
London, UK EC2M 5TQ
|
Credit Contact/Documentation Contact
Henry Rushton
Associate
+442077675928
Henry.rushton@uk.ing.com
Operations Contact
Vilija Crowe/Mark Dasalla
+44 207 767 1688/6633
+44 207767 7324
GB.LDN.DEAL.EXECUTION@uk.ing.com
|
Gordon.boehm@db.com
Attention: Edward Hui (STEF Hong Kong)
For Operational Matters:
Address: Loan Operations
Deutsche Bank AG, Hong Kong Branch
Level 52, International Commerce Centre
1 Austin Road West, Kowloon, Hong Kong
Fax: +852 2203 7241
E-mail: dbhk.loan-ops@db.com
Attention: Anson Chan and Felix Shum
With a copy to:
edward-sl.hui@db.com
gladys.choi@db.com
ken-ks.cheng@db.com
david.cham@db.com
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
17th Floor, 100 Park Ave
NY 10017, New York, USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Name
:
|
Commonwealth Bank of Australia, New York Branch
|
Facility Office, address, fax number and attention details for notices
|
Level 17, 599 Lexington Avenue,
New York NY 10022
Credit Contact
James Miller
Executive Director, Structured Asset Finance
+1 212 848 9213
millej@cba.com.au
cc: erik.doebler@cba.com.au
cc: luke.copley@cba.com.au
|
Operations Contact
Teresa Costa
Operations Officer
+1 212 848 9301
NY_LoanAdmin@cba.com.au
lucianna.li@cba.com.au
Documentation Contact
Erik Doebler
Associate Director – Structured Asset Finance
+1 212 848 9354
erik.doebler@cba.com.au
deborah.tan@cba.com.au
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
17th Floor, 100 Park Ave
NY 10017, New York, USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
|
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
ken-ks.cheng@db.com
david.cham@db.com
|
Name
:
|
Santander Bank, N.A.
|
Facility Office, address, fax number and attention details for notices
|
Facility Office and Credit Related Matters Office:
45 East 53rd Street. 10005 New York
Contacts:
Name: Suzanne Hamzah
Tel: 212-297-2901
Email: shamzah@santander.us
Name: Pasquale Bellini
Tel: 212-350-3596
Email: pbellini@santander.us
Name: Beatriz de la Mata
Telf: (1) 212 297 2942
Email: bdelamata@santander.us
Name: Aidan Lanigan
Telf: (1) 212 692 2547
Email: alanigan@santander.us
Operations Contact Information:
Name: Amanda Ray
Title: COML Ops Ld Specialist
Address: 601 Penn Street, Reading, PA 19601
Telephone: 610-378-6840
Facsimile: 610-378-6715
E-Mail Addresses: Participations@santander.us
With copy to:
shamzah@santander.us
pbellini@santander.us
bdelamata@santander.us
chelwig@santander.us
|
Name
:
|
The Export-Import Bank of Korea
|
Facility Office, address, fax number and attention details for notices
|
BIFC 20th floor, Munhyeongeumyung-ro 40 Nam-gu,
Busan 608-828
Republic of Korea
Attention : Woonsung Yang/Junhyun Park
Telephone No.:+82-51-922-8826/8827
Fax : +82-51-922-8849
E-mail :
wsyang@koreaexim.go.kr
jhpark@koreaexim.go.kr
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
17th Floor, 100 Park Ave
NY 10017, New York, USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
|
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Attention: Anson Chan and Felix Shum
With a copy to:
edward-sl.hui@db.com
gladys.choi@db.com
ken-ks.cheng@db.com
david.cham@db.com
|
Name
:
|
Santander Bank, N.A.
|
Facility Office, address, fax number and attention details for notices
|
Facility Office and Credit Related Matters Office:
45 East 53rd Street. 10005 New York
Contacts:
Name: Suzanne Hamzah
Tel: 212-297-2901
Email: shamzah@santander.us
Name: Pasquale Bellini
Tel: 212-350-3596
Email: pbellini@santander.us
Name: Beatriz de la Mata
Telf: (1) 212 297 2942
Email: bdelamata@santander.us
Name: Aidan Lanigan
Telf: (1) 212 692 2547
Email: alanigan@santander.us
Operations Contact Information:
Name: Amanda Ray
Title: COML Ops Ld Specialist
Address: 601 Penn Street, Reading, PA 19601
Telephone: 610-378-6840
Facsimile: 610-378-6715
E-Mail Addresses: Participations@santander.us
With copy to:
shamzah@santander.us
pbellini@santander.us
bdelamata@santander.us
chelwig@santander.us
|
Name
:
|
ABN AMRO Bank N.V.
|
Facility Office, address, fax number and attention details for notices
|
Address for Notices
ABN AMRO Securities USA
100 Park Avenue, 17th Floor
New York, NY 10017
|
Attention: MacGregor Stockdale
Email: macgregor.stockdale@abnamro.com
Telephone: +1 917 284 6738
Booking Office
ABN AMRO N.V.
Gustav Mahlerlaan 10
1082 PP Amsterdam
The Netherlands
|
Name
:
|
Citigroup Global Markets Inc.
|
Facility Office, address, fax number and attention details for notices
|
390 Greenwich Street
New York, NY
10013
Attention: Kevin Sarver
kevin.sarver@citi.com
+1-212-723-6566
|
Name
:
|
Commonwealth Bank of Australia, New York Branch
|
Facility Office, address, fax number and attention details for notices
|
Level 17, 599 Lexington Avenue
New York NY 10022
Attention: Max Gundy / John Kautz
Fax: +1 212 336 7758
Email: andrew.gundy@cba.com.au / john.kautz@cba.com.au
Cc: millej@cba.com.au
|
Name
:
|
DVB Bank SE
|
Facility Office, address, fax number and attention details
|
Platz der Republik 6
60325 Frankfurt am Main
|
for notices
|
Federal Republic of Germany
Attention: Manager Group Treasury Service
Facsimile No.: +49 69 97 504 581
Telephone No.: +49 69 97 504 247
|
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
ABN AMRO Capital USA LLC
100 Park Ave, 17
th
Floor,
New York, NY 10017 USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM NY 10017 USA |
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
100 Park Ave, 17
th
Floor,
New York, NY 10017 USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM NY 10017 USA |
Name
:
|
ABN AMRO Capital USA LLC
|
Facility Office, address, fax number and attention details for notices
|
ABN AMRO Capital USA LLC
100 Park Ave, 17
th
Floor,
New York, NY 10017 USA
Attention: Ryan Masajo / Wudasse Zaudou
Telephone: +1 917 284 6975/6915
Fax: +1 917 284 6683
Email: AABUS_NY_AGENCY@ABNAMRO.COM NY 10017 USA |
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
|
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Name
:
|
Citibank N.A., London Branch
|
Facility Office, address, fax number and attention details for notices
|
Citibank International Limited Poland Branch
on behalf of Citibank NA London
Loans Operations Department
7/9 Traugutta str., 1st Floor,
00-985 Warsaw
Poland
Group Email Address –
cibuk.loans@citi.com
Fax
– 0044 207 655 2380
Credit Contact
Meghan O'Connor
Vice President
meghan.oconnor@citi.com
+1 (212) 816-8557
Operations Contact
Kara Catt
kara.catt@citi.com
+44 20 7986 4824
Romina Coates
|
romina.coates@citi.com
+44 20 7986 5017
Documentation Contact
Frithiof Wilhelmsen
Vice President
frithiof.wilhelmsen@citi.com
+44 20 7986 2216
Marieve Gauthier
Vice President
marieve.gauthier@citi.com
+1 (212) 816-2897
|
Vessel Name
|
COMET
|
Owner/Upstream Guarantor:
|
Comet LPG Transport LLC
|
Shipyard
|
Hyundai Heavy Industries Co., Ltd., Ulsan, Korea
|
Hull Number
|
2656
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract, dated April 29, 2013, made between SEACOR LPG I LLC, as buyer ("Original Buyer") and Hyundai Heavy Industries Co., Ltd., as builder ("Builder"), as novated by a Novation Agreement dated July 25, 2014 made by and between Original Buyer, Builder, and Comet LPG Transport LLC, as new Buyer
|
Delivery Date
|
July 25, 2014
|
Delivered Price:
|
$73,310,000
|
Age Adjusted Delivered Price:
|
$69,775,411
|
Flag State:
|
Bahamas
|
Port of Registry:
|
Nassau
|
Official Number:
|
7000664
|
Classification:
|
+A1 (E)
|
Classification Society:
|
American Bureau of Shipping
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CORVETTE
|
Owner/Upstream Guarantor:
|
Corvette LPG Transport LLC
|
Shipyard
|
Hyundai Heavy Industries Co., Ltd., Ulsan, Korea
|
Hull Number
|
2658
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 12, 2013, as amended by an Addendum No. 1, made between Corvette LPG Transport LLC, as buyer, and Hyundai Heavy Industries Co., Ltd., as builder
|
Delivery Date
|
January 2, 2015
|
Delivered Price:
|
$77,090,000
|
Age Adjusted Delivered Price:
|
$75,835,758
|
Flag State:
|
Bahamas
|
Port of Registry:
|
Nassau
|
Official Number:
|
7000668
|
Classification:
|
+A1 (E)
|
Classification Society:
|
American Bureau of Shipping
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
COUGAR
|
Owner/Upstream Guarantor:
|
Dorian Shanghai LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S749
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 22, 2013, as amended and supplemented by the Amendment Agreement No. 1 dated September 3, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder") and STI Shanghai Shipping Company Limited, as buyer ("Original Buyer"), and as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Shanghai LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
April 2015
|
Delivered Price:
|
$75,420,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
COBRA
|
Owner/Upstream Guarantor:
|
Dorian Houston LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S750
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 22, 2013, as amended and supplemented by the Amendment Agreement No. 1 dated September 3, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder"), and STI Houston Shipping Company Limited, as buyer ("Original Buyer"), and as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Houston LPG Transport LLC, as new buyer.
|
Scheduled Delivery Date
|
April 2015
|
Delivered Price:
|
$75,420,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CONTINENTAL
|
Owner/Upstream Guarantor:
|
Dorian Sao Paulo LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S753
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated October 18, 2013, as amended and supplemented by the Addendum No. 1 dated October 18, 2013 and the Amendment Agreement No. 1 dated October 31, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder"), and STI Sao Paulo Shipping Company Limited, as buyer ("Original Buyer"), and as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Sao Paulo LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
June 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CONCORDE
|
Owner/Upstream Guarantor:
|
Concorde LPG Transport LLC
|
Shipyard
|
Hyundai Heavy Industries Co., Ltd., Ulsan, Korea
|
Hull Number
|
2660
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated February 21, 2014, as amended by an Addendum No. 1, made between Concorde LPG Transport LLC, as buyer, and Hyundai Heavy Industries Co., Ltd., as builder
|
Scheduled Delivery Date
|
June 2015
|
Delivered Price:
|
$77,360,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CONSTELLATION
|
Owner/Upstream Guarantor:
|
Constellation LPG Transport LLC
|
Shipyard
|
Hyundai Heavy Industries Co., Ltd., Ulsan, Korea
|
Hull Number
|
2661
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated February 21, 2014, as amended by an Addendum No. 1, made between Constellation LPG Transport LLC, as buyer , and Hyundai Heavy Industries Co., Ltd., as builder
|
Scheduled Delivery Date
|
September 2015
|
Delivered Price:
|
$73,400,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CONSTITUTION
|
Owner/Upstream Guarantor:
|
Dorian Ulsan LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S755
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 25, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder") and STI Ulsan Shipping Company Limited, as buyer ("Original Buyer"), as novated by a Novation Agreement dated November 20, 2013, made by and between Builder, Original Buyer, and Dorian Ulsan LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
June 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
COMMODORE
|
Owner/Upstream Guarantor:
|
Dorian Amsterdam LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S751
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 22, 2013, as amended and supplemented by the Amendment Agreement No. 1 dated September 3, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder"), and STI Amsterdam Shipping Company Limited, as buyer ("Original Buyer"), and as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Amsterdam LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
July 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CHEYENNE
|
Owner/Upstream Guarantor:
|
Dorian Monaco LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S756
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 25, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ('Builder") and STI Monaco Shipping Company Limited, as buyer ("Original Buyer"), as novated by a Novation Agreement dated November 20, 2013, made by and between Builder, Original Buyer, and Dorian Monaco LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
October 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CLERMONT
|
Owner/Upstream Guarantor:
|
Dorian Barcelona LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S752
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated July 22, 2013, as amended and supplemented by the Amendment Agreement No. 1 dated September 3, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder"), and STI Barcelona Shipping Company Limited, as buyer ("Original Buyer"), and as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Barcelona LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
October 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
COPERNICUS
|
Owner/Upstream Guarantor:
|
Dorian Tokyo LPG Transport LLC
|
Shipyard
|
Daewoo Shipbuilding & Marine Engineering Co., Ltd., Okpo, Korea
|
Hull Number
|
2338
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated August 1, 2013, made between Daewoo Shipbuilding & Marine Engineering Co., Ltd., as builder ("Builder") and STI Tokyo Shipping Company Limited, as buyer ("Original Buyer"), as novated by a Shipbuilding Contract Novation Agreement dated December 18, 2013, made by and between Builder, Original Buyer, and Dorian Tokyo LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
November 2015
|
Delivered Price:
|
$77,460,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CRESQUES
|
Owner/Upstream Guarantor:
|
Dorian Dubai LPG Transport LLC
|
Shipyard
|
Daewoo Shipbuilding & Marine Engineering Co., Ltd., Okpo, Korea
|
Hull Number
|
2336
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated August 1, 2013, made between Daewoo Shipbuilding & Marine Engineering Co., Ltd., as builder ("Builder") and STI Dubai Shipping Company Limited, as buyer ("Original Buyer"), as novated by a Shipbuilding Contract Novation Agreement dated December 18, 2013, made by and between Builder, Original Buyer, and Dorian Dubai LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
August 2015
|
Delivered Price:
|
$77,460,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CRATIS
|
Owner/Upstream Guarantor:
|
Dorian Geneva LPG Transport LLC
|
Shipyard
|
Daewoo Shipbuilding & Marine Engineering Co., Ltd., Okpo, Korea
|
Hull Number
|
2337
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated August 1, 2013, made between Daewoo Shipbuilding & Marine Engineering Co., Ltd., as builder ("Builder") and STI Geneva Shipping Company Limited, as buyer ("Original Buyer"), as novated by a Shipbuilding Contract Novation Agreement dated December 18, 2013, made by and between Builder, Original Buyer, and Dorian Geneva LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
October 2015
|
Delivered Price:
|
$77,460,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CHAPARRAL
|
Owner/Upstream Guarantor:
|
Dorian Cape Town LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S754
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated October 18, 2013, as amended and supplemented by the Addendum No. 1 dated October 18, 2013 and the Amendment Agreement No. 1 dated October 31, 2013, made between Hyundai Samho Heavy Industries Co., Ltd., as builder ("Builder"), and STI Cape Town Shipping Company Limited, as buyer ("Original Buyer"), as further novated by a Novation Agreement dated November 20, 2013 made by and between Builder, Original Buyer, and Dorian Cape Town LPG Transport LLC, as new buyer
|
Scheduled Delivery Date
|
November 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
COMMANDER
|
Owner/Upstream Guarantor:
|
Commander LPG Transport LLC
|
Shipyard
|
Hyundai Heavy Industries Co., Ltd., Ulsan, Korea
|
Hull Number
|
2662
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated February 21, 2014, as amended by an Addendum No. 1, made between Commander LPG Transport LLC, as buyer, and Hyundai Heavy Industries Co., Ltd., as builder
|
Scheduled Delivery Date
|
December 2015
|
Delivered Price:
|
$73,400,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CHALLENGER
|
Owner/Upstream Guarantor:
|
Dorian Explorer LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S757
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated November 20, 2013, as amended by an Addendum No. 1, made between Dorian Explorer LPG Transport LLC, as buyer, and Hyundai Samho Heavy Industries Co., Ltd., as builder
|
Scheduled Delivery Date
|
December 2015
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
Vessel Name
|
CARAVEL
|
Owner/Upstream Guarantor:
|
Dorian Exporter LPG Transport LLC
|
Shipyard
|
Hyundai Samho Heavy Industries Co., Ltd., Samho, Korea
|
Hull Number
|
S758
|
Date and Description of Shipbuilding Contract:
|
Shipbuilding Contract dated November 20, 2013, as amended by an Addendum No. 1, made between Dorian Exporter LPG Transport LLC, as buyer, and Hyundai Samho Heavy Industries Co., Ltd., as builder
|
Scheduled Delivery Date
|
January 2016
|
Delivered Price:
|
$75,440,000 plus Contingent Extras
|
Major Casualty Amount:
|
$1,000,000
|
(a) | A copy of the Constitutional Documents of each Original Obligor. |
(b) | A copy of a resolution of the board of directors and/or managers, members or managing members, as applicable, of each Original Obligor (or any committee of such board empowered to approve and authorize the following matters): |
(i) | approving the terms of, and the transactions contemplated by, the Finance Documents and any Charter Documents (to the extent that they are in place) (the " Relevant Documents " and each a " Relevant Document ") to which it is a party and resolving that it execute the Relevant Documents; |
(ii) | authorizing a specified person or persons to execute the Relevant Documents on its behalf; and |
(iii) | authorizing a specified person or persons, on its behalf, to sign and/or dispatch all documents and notices (including, if relevant, any Utilization Request) to be signed and/or dispatched by it under or in connection with the Relevant Documents to which it is a party. |
(c) | If applicable, a copy of a resolution of the board of directors and/or managers, managing members or members, as applicable, of the relevant company, establishing any committee referred to in paragraph (b) above and conferring authority on that committee. |
(d) | A specimen of the signature of each person authorized by the resolution referred to in paragraph (b) above, who will sign any Relevant Document, and a copy of each such person's passport or other government identification. |
(e) | A copy of a resolution signed by all the holders of the issued shares and/or membership interests in each Upstream Guarantor and the Borrower, approving the terms of, and the transactions contemplated by, the Relevant Documents to which such Upstream Guarantor and the Borrower is a party (if required). |
(f) | A certificate of each Original Obligor (signed by an officer, member or manager as applicable) confirming that borrowing or guaranteeing or securing, as appropriate, the Commitment would not cause any borrowing, guaranteeing or similar limit binding on any Original Obligor to be exceeded. |
(g) | A certified copy of any power of attorney under which any person is to execute any of the Relevant Documents on behalf of any Original Obligor. |
(h) | A certificate of an authorized signatory of the relevant Original Obligor certifying that each copy document relating to it specified in this Part of this Schedule is correct, complete and in full force and effect as at a date no earlier than the Closing Date and that any such resolutions or power of attorney have not been revoked. |
(i) | A certificate of good standing with respect to each Original Obligor, issued in the 30 days prior to the Closing Date. |
(a) | A legal opinion of counsel to the Obligors addressed to the Finance Parties and K-sure on matters of New York law, substantially in the form approved by all the Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(b) | A legal opinion of counsel to the Obligors addressed to the Finance Parties and K-sure in each jurisdiction in which an Obligor is incorporated or formed, substantially in the form approved by all the Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(c) | Any and all other legal opinions that may be required by the Lenders, subject to the Required Lenders' instructions. |
(a) | A copy of any other authorization or other document, opinion or assurance which the Administrative Agent considers to be reasonably necessary (if it has notified the Borrower accordingly) and subject to the Required Lenders' instructions in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document. |
(b) | The Original Financial Statements. |
(c) | Evidence that the fees, commissions, costs and expenses then due from the Obligors pursuant to Clause 11 ( Fees ) and Clause 16 ( Costs and expenses ) have been paid or will be paid by the Utilization Date. |
(d) | A list identifying all litigation, arbitration or administrative, regulatory or criminal proceedings or investigations (if any) of, or before, any court, arbitral body or agency which have, to the best of any Obligor's knowledge and belief having made due and careful inquiries, been started against the Facility Guarantor. |
(a) | This Agreement. |
(b) | A Guaranty from each Guarantor. |
(c) | Evidence that any Account required to be established under Clause 25 ( Bank accounts ) has been opened and established, that any Account Security in respect of each such Account has been executed and delivered by the relevant Account Holder in favor of the Security Agent and that any notice required to be given to an Account Bank under that Account Security has been given to it and acknowledged by it in the manner required by that Account Security and that an amount has been credited to it. |
(d) | The Share Security, together with all letters, transfers, certificates and other documents required to be delivered under the Share Security. |
(e) | Copies of the Shipbuilding Contracts. |
(a) | A certificate of an authorized signatory of the Borrower certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended. |
(b) | A certificate of an authorized signatory of each other Obligor which is party to any of the Original Security Documents required to be executed at or before the relevant Utilization Date certifying that each copy document relating to it specified in Part 1 of this Schedule remains correct, complete and in full force and effect as at a date no earlier than a date approved for this purpose and that any resolutions or power of attorney referred to in Part 1 of this Schedule in relation to it have not been revoked or amended. |
(c) | A certificate of an authorized signatory of each Obligor certifying that the representations and warranties of such Obligor in this Agreement and/or any other Finance Document is true and correct as of the Delivery Date, except to the extent such representation or warranty relates to an earlier date, in which case such representation or warranty shall have been true as of such earlier date. |
(d) | A certificate of good standing with respect to the relevant Upstream Guarantor who will be the Owner of the Ship being financed in the relevant Advance, issued in the 30 days prior to the Utilization Date. |
(a) | A certificate of the Borrower (signed by an officer, member or manager as applicable), confirming that each of the Upstream Guarantors is 100% legally and beneficially owned by the Borrower. |
(b) | A certificate of the Facility Guarantor (signed by a director, officer or manager as applicable), confirming that the Borrower is 100% legally and beneficially owned by the Facility Guarantor. |
(a) | The Mortgage in respect of the relevant Ship, each duly executed by the relevant Upstream Guarantor, as applicable. |
(b) | The General Assignment in respect of the relevant Ship, each duly executed by the relevant Upstream Guarantor, as applicable. |
(c) | The Charter Assignment duly executed by the relevant Upstream Guarantor if applicable. |
(d) | The Manager's Undertaking and Subordinations duly executed by the relevant parties. |
(e) | Duly executed notices of assignment and acknowledgments of those notices as required by any of the above Security Documents (using commercially reasonable efforts, if applicable). |
(f) | The Hedging Contract Security in respect of the Hedging Contracts (if any) entered into with the Swap Bank(s). |
(a) | A legal opinion of counsel to the Obligors addressed to the Finance Parties and K-sure on matters of New York law, substantially in the form approved by all the Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(b) | A legal opinion of counsel to the Obligors addressed to the Finance Parties and K-sure in each jurisdiction in which an Obligor is incorporated or formed and/or which is or is to be the Flag State of the relevant Ship, substantially in the form approved by all the Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(c) | A legal opinion of counsel to the Lenders addressed to the KEXIM Lenders and K-sure Lenders on matters of Korean law, substantially in the form approved by the KEXIM Lenders and the K-sure Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(d) | A legal opinion of counsel to the Lenders addressed to the KEXIM Lenders and the ECA Agent on matters of New York law with respect to the KEXIM Guarantee, substantially in the form approved by the KEXIM Lenders prior to signing this Agreement and subject to the Required Lenders' instructions. |
(e) | Any and all other legal opinions that may be required by the Lenders, subject to the Required Lenders' instructions. |
(a) | is legally and beneficially owned by the relevant Upstream Guarantor and registered in the name of the relevant Upstream Guarantor through the relevant Registry as a ship under the laws and flag of the relevant Flag State and that such Ship is free of any Security Interest (other than Permitted Security Interests); |
(b) | is classed with the relevant Classification free of all overdue conditions of class of the relevant Classification Society; |
(c) | is insured in the manner required by the Finance Documents; |
(d) | if applicable, has been delivered, and accepted for service, under its Long Term Charter (with a certified true copy of such Long Term Charter being delivered to the Administrative Agent); |
(e) | if applicable, is free of any other charter commitment which would require approval under the Finance Documents; and |
(f) | any prior registration (other than through the relevant Registry in the relevant Flag State) of the relevant Ship has been or will (within such period as may be approved) be cancelled. |
(a) | an insurance opinion (in accordance with Clause 23.15 ( Insurance correspondence )) for the first Ship to be delivered after the date of this Agreement; provided that if the insurance arrangements for the remaining Ships are the same as for the first Ship to be delivered after the date of this Agreement, no further insurance reports will be provided; |
(b) | evidence that such Insurances have been placed in accordance with Clause 23 ( Insurance ) and details of such Insurances provided no later than 7 days prior to Delivery; and |
(c) | evidence that approved brokers, insurers and/or associations have issued or will issue letters of undertaking in favor of the Finance Parties in an approved form in relation to the Insurances. |
(a) | the document of compliance issued in accordance with the ISM Code to the person who is the operator of the Ship for the purposes of that code; |
(b) | the safety management certificate in respect of the Ship issued in accordance with the ISM Code to be delivered within five (5) days after the Utilization Date; |
(c) | the international ship security certificate in respect of the Ship issued under the ISPS Code to be delivered within five (5) days after the Utilization Date; and |
(d) | if so requested by the Administrative Agent, any other certificates issued under any applicable code required to be observed by the Ship or in relation to its operation under any applicable law. |
1. | We refer to the Agreement. This is a Utilization Request. Terms defined in the Agreement have the same meaning in this Utilization Request unless given a different meaning in this Utilization Request. |
2. | We wish to borrow the [Ship 1 Advance][Ship 2 Advance][Ship 3 Advance][Ship 4 Advance][Ship 5 Advance][Ship 6 Advance][Ship 7 Advance][Ship 8 Advance][Ship 9 Advance][Ship 10 Advance][Ship 11 Advance][Ship 12 Advance][Ship 13 Advance][Ship 14 Advance][Ship 15 Advance][Ship 16 Advance][Ship 17 Advance][Ship 18 Advance] on the following terms: |
Proposed Utilization Date:
|
[
·
] (or, if that is not a Business Day, the next Business Day)
|
Proposed Release Date
|
[
·
] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
$[
·
]
|
3. | We confirm that each condition specified in Clause 4.5 ( Further conditions precedent ) is satisfied on the date of this Utilization Request. |
4. | The purpose of this Advance is [specify purpose complying with Clause 3 ( Purpose ) of the Agreement] and its proceeds should be credited to [ l ] [specify account]. |
5. | We request that the first Interest Period for the Advance under the Commercial Tranche be [three/six (3)/(6)] months (as determined pursuant to Clause 9 ( Interest Periods ). |
6. | We confirm that the first Interest Period for the Advance under the KEXIM Guaranteed Tranche, the KEXIM Funded Tranche and the K-sure Tranche is three (3) months. |
7. | This Utilization Request is irrevocable. |
1. | to send to the Mortgagee, following receipt of a written request from the Mortgagee, certified true copies of all original certificates of class held by the Classification Society in relation to the Ship; |
2. | to allow the Mortgagee (or its agents), at any time and from time to time, to inspect the original class and related records of the Owner and the Ship at the offices of the Classification Society in [●] and to take copies of them; |
3. | to notify the Mortgagee immediately in writing if the Classification Society becomes aware of any facts or matters which have resulted in a suspension or cancellation of the Ship's class under the rules or terms and conditions of the Owner's or the Ship's membership of the Classification Society; |
4. | following receipt of a written request from the Mortgagee: |
(a) | to confirm that the Owner is not in default of any of its contractual obligations or liabilities to the Classification Society and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to the Classification Society; or |
(b) | if the Owner is in default of any of its contractual obligations or liabilities to the Classification Society, to specify to the Mortgagee in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by the Classification Society. |
1. | to send to the Mortgagee, following receipt of a written request from the Mortgagee, certified true copies of all original certificates of class held by us in relation to the Ship; |
2. | to allow the Mortgagee (or its agents), at any time and from time to time, to inspect the original class and related records of the Owner and the Ship at our offices in [●] and to take copies of them; |
3. | to notify the Mortgagee immediately in writing if we become aware of any facts or matters which have resulted in a suspension or cancellation of the Ship's class under the rules or terms and conditions of the Owner's or the Ship's membership; |
4. | following receipt of a written request from the Mortgagee: |
a) | to confirm that the Owner is not in default of any of its contractual obligations or liabilities to us and, without limiting the foregoing, that it has paid in full all fees or other charges due and payable to us; or |
b) | if the Owner is in default of any of its contractual obligations or liabilities to us, to specify to the Mortgagee in reasonable detail the facts and circumstances of such default, the consequences thereof, and any remedy period agreed or allowed by us. |
(a) | have not, at the date hereof incurred, and will not after the date hereof incur, any indebtedness other than [, with respect to the Borrower, the Loan and] any [Member][Affiliate] Loans; and |
(b) | shall procure that any part of the purchase price of [Ship name] not advanced by way of loan and borrowed by the Borrower shall be subordinated in all respects to our indebtedness and obligations under the Finance Documents. |
To: | ABN AMRO CAPITAL USA LLC on its own behalf, as agent for the parties to the Agreement defined below and on behalf of [ ] and [ ]. |
1. | [name of Existing Lender] (the "Existing Lender") (a) confirms the accuracy of the summary of its participation in the Agreement set out in the schedule below; and (b) requests [name of Substitute Bank] (the "Substitute") to accept by way of assignment and/or substitution the portion of such participation specified in the schedule hereto by counter‑signing and delivering this Substitution Certificate to the Administrative Agent at its address for the service of notices specified in the Agreement. |
2. | The Substitute hereby requests the Administrative Agent (on behalf of itself, and the other parties to the Agreement to accept this Substitution Certificate as being delivered to the Administrative Agent pursuant to and for the purposes of Clause 30.2 ( Substitution ) of the Agreement, so as to take effect in accordance with the respective terms thereof on [date of transfer] (the "Effective Date") or on such later date as may be determined in accordance with the respective terms thereof. |
3. | The Administrative Agent (on behalf of itself, and all other parties to the Agreement) confirms the assignment and/or substitution effected by this Substitution Certificate pursuant to and for the purposes of Clause 30.2 ( Substitution ) of the Agreement so as to take effect in accordance with the respective terms thereof. |
4. | The Substitute confirms: |
(a) | that it has received a copy of the Agreement and each of the other Finance Documents and all other documentation and information required by it in connection with the transactions contemplated by this Substitution Certificate; |
(b) | that it has made and will continue to make its own assessment of the validity, enforceability and sufficiency of the Agreement, the other Finance Documents and this Substitution Certificate and has not relied and will not rely on the Existing Lender or the Administrative Agent or any statements made by either of them in that respect; |
(c) | that it has made and will continue to make its own credit assessment of the Borrower and has not relied and will not rely on the Existing Lender or the Administrative Agent or any statements made by either of them in that respect; and |
(d) | that, accordingly, neither the Existing Lender nor the Administrative Agent shall have any liability or responsibility to the Substitute in respect of any of the foregoing matters. |
5. | Execution of this Substitution Certificate by the Substitute constitutes its representation to the Existing Lender and all other parties to the Agreement that it has power to become party to the Agreement and each other Finance Document as a Lender on the terms herein and therein set out and has taken all necessary steps to authorize execution and delivery of this Substitution Certificate. |
6. | The Existing Lender makes no representation or warranty and assumes no responsibility with respect to the legality, validity, effectiveness, adequacy or enforceability of the Agreement or any of the other Finance Documents or any document relating thereto and assumes no responsibility for the financial condition of the Borrower or any other party to the Agreement or any of the other Finance Documents or for the performance and observance by the Borrower or any other such party of any of its obligations under the Agreement or any of the other Finance Documents or any document relating thereto and any and all such conditions and warranties, whether express or implied by law or otherwise, are hereby excluded. |
7. | The Substitute hereby undertakes to the Existing Lender, the Borrower and the Administrative Agent and each of the other parties to the Agreement that it will perform in accordance with their terms all those obligations which by the respective terms of the Agreement will be assumed by it after acceptance of this Substitution Certificate by the Administrative Agent. |
8. | All terms and expressions used but not defined in this Substitution Certificate shall bear the meaning given to them in the Agreement. |
9. | This Substitution Certificate and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of New York. |
Commitment: US$
|
Portion Transferred: US$
|
Contribution: US$
|
Portion Transferred: US$
|
Next Interest Payment Date:
|
1. | We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation. |
(b) | We refer to Clause 2.2(a) ( Increase ). |
(c) | The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Commitment specified in the Schedule (the Relevant Commitment) as if it was an Original Lender under the Agreement. |
(d) | The proposed date on which the increase in relation to the Increase Lender and the Relevant Commitment is to take effect (the Increase Date) is [●]. |
(e) | On the Increase Date, the Increase Lender becomes party to the Finance Documents as a Lender. |
(f) | The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 37.2 ( Addresses ) are set out in the Schedule. |
(g) | This Increase Confirmation 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 Increase Confirmation. |
(h) | This Increase Confirmation and any non‑contractual obligations arising out of or in connection with it are governed by the laws of the State of New York. |
(i) | This Increase Confirmation has been entered into on the date stated at the beginning of this Increase Confirmation. |
1. | I/We refer to the Agreement. This is a Compliance Certificate. Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate. |
2. | I/We confirm that, as at the date hereof: |
(a) | the Consolidated Liquidity is equal to $ [ l ], which is at least equal to the Liquidity Reserve Required Balance, as more particularly described in Clause 19.2(a) ( Minimum Liquidity ), and is being maintained in an Earnings Account. The Liquidity Reserve Required Balance is $[ l ]. |
(b) | the ratio of Consolidated Net Debt to Consolidated Total Capitalization is not more than 0.60:1.00, as more particularly described in Clause 19.2(b) ( Maximum Leverage ), as evidenced by the following: [set out (in reasonable detail) computations as to compliance with Clause 19.2(b) ( Maximum Leverage )] ; |
(c) | the ratio of Consolidated EBITDA to Consolidated Net Interest Expense is greater than or equal to [1.00/1.50/2.00/2.50] [Insert as appropriate] , as more particularly described in Clause 19.2(c) ( Minimum Interest Coverage ), as evidenced by the following: [set out (in reasonable |
(d) | stockholder's equity is at least equal to the aggregate of (i) $400,000,000, (ii) 50% of any new equity raised after the Closing Date and (iii) 25% of the positive net income for the immediately preceding financial year, as more particularly described in Clause 19.2(d) ( Minimum Stockholder's Equity ), as evidenced by the following: [set out (in reasonable detail) computations as to compliance with Clause 19.2(d) ( Minimum Stockholder's Equity )] ; and |
(e) | the ratio of Current Assets to Current Liabilities is greater than 1.00, as more particularly described in Clause 19.2(e) (Current Assets divided by Current Liabilities ), as evidenced by the following: [set out (in reasonable detail) computations as to compliance with Clause 19.2(e) ( Current Assets divided by Current Liabilities )] . |
3. | I/We confirm that no Default is continuing. |
Statoil
|
Petredec
|
Petrobras
|
Total
|
Shell
|
Exxon
|
BP
|
Vitol
|
Geogas
|
Glencore
|
Trafigura
|
Transammonia
|
Flopec
|
Mitsui
|
Mitsubishi
|
E1
|
Chevron
|
Astomos
|
Gunvor
|
Idemitsu
|
Itochu
|
Kuwait Petroleum Corporation
|
Lukoil
1
|
PTT
|
SK Energy
|
Oriental Energy
|
Sinopec
|
Unipec
|
Targa Resources Corp.
|
Enterprise Products
|
Energy Transfer Partners
|
Commercial Tranche
|
KEXIM Guaranteed Tranche
|
KEXIM Funded Tranche
|
K-sure Tranche
|
|
Lenders
|
Commercial Lenders
|
KEXIM Lenders
|
KEXIM
|
K-sure Lenders
|
Aggregate Maximum Amount
|
$249,122,048
|
$202,087,805
|
$204,280,079
|
$102,615,364
|
Percentage of each Advance
|
32.862%
|
26.657%
|
26.946%
|
13.535%
|
ABN AMRO Capital USA LLC Commitment
|
$61,782,268
|
$24,912,204
|
-
|
$20,523,072
|
Citibank N.A., London Branch Commitment
|
$26,905,181
|
$42,450,397
|
-
|
$20,523,073
|
ING Bank N.V., London Branch Commitment
|
$61,782,268
|
-
|
-
|
$20,523,073
|
DVB Bank SE Commitment
|
$61,782,268
|
-
|
-
|
-
|
Deutsche Bank AG, Hong Kong Branch Commitment
|
-
|
$42,450,397
|
-
|
$20,523,073
|
Santander Bank, N.A. Commitment
|
$42,450,397
|
-
|
$20,523,073
|
|
DZ BANK AG Deutsche Zentral-Genossenschaftsbank, Frankfurt am Main Commitment
|
$49,824,410
|
-
|
-
|
|
The Export-Import Bank of Korea Commitment
|
-
|
-
|
$204,280,079
|
-
|
Commonwealth Bank of Australia, New York Branch Commitment
|
$36,870,063
|
-
|
-
|
-
|
1. | I/We refer to the Agreement. Terms defined in the Agreement have the same meaning when used in this Certificate unless given a different meaning in this Certificate. |
2. | I/We confirm that, as at the date hereof: |
(a) | the following are the names of the Ships and confirmation whether each Ship is on Acceptable Charter: |
Comet
|
[Acceptable Charter/Not Acceptable Charter]
|
Corvette
|
[Acceptable Charter/Not Acceptable Charter]
|
Cobra
|
[Acceptable Charter/Not Acceptable Charter]
|
Cougar
|
[Acceptable Charter/Not Acceptable Charter]
|
Continental
|
[Acceptable Charter/Not Acceptable Charter]
|
Constitution
|
[Acceptable Charter/Not Acceptable Charter]
|
Concorde
|
[Acceptable Charter/Not Acceptable Charter]
|
Commodore
|
[Acceptable Charter/Not Acceptable Charter]
|
Cresques
|
[Acceptable Charter/Not Acceptable Charter]
|
Cheyenne
|
[Acceptable Charter/Not Acceptable Charter]
|
Constellation
|
[Acceptable Charter/Not Acceptable Charter]
|
Clermont
|
[Acceptable Charter/Not Acceptable Charter]
|
Cratis
|
[Acceptable Charter/Not Acceptable Charter]
|
Chaparral
|
[Acceptable Charter/Not Acceptable Charter]
|
Copernicus
|
[Acceptable Charter/Not Acceptable Charter]
|
Commander
|
[Acceptable Charter/Not Acceptable Charter]
|
Challenger
|
[Acceptable Charter/Not Acceptable Charter]
|
Caravel
|
[Acceptable Charter/Not Acceptable Charter]
|
(b) | the average remaining tenor on the Acceptable Charters, in the aggregate, is greater than one (1) year; and |
(c) | [50% or more but less than 75% of the Ships] [75% or more of the Ships] are employed on Acceptable Charters. |
3. | I/We hereby provide notice that the applicable Margin in respect of the Commercial Tranche for the quarter starting [ l ] shall be [2.50%/2.25%] per annum. |
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Theodore Young
|
|||
Name:
|
Theodore Young
|
|||
Title:
|
President
|
By:
|
/s/ Urvashi Zutshi
|
By:
|
/s/ Passchier Veefkind
|
|
Name:
|
Urvashi Zutshi
|
Name:
|
Passchier Veefkind
|
|
Title:
|
Managing Director
|
Title:
|
Director – Energy Offshore
|
By:
|
/s/ P.R. Vogelzang
|
By:
|
/s/ Thijs Slavenburg
|
|
Name:
|
P.R. Vogelzang
|
Name:
|
Thijs Slavenburg
|
|
Title:
|
Title:
|
Director
|
By:
|
/s/ Kara Catt
|
By:
|
||
Name:
|
Kara Catt
|
Name:
|
||
Title:
|
Vice President
|
Title:
|
By:
|
/s/ Valentino Gallo
|
By:
|
||
Name:
|
Valentino Gallo
|
Name:
|
||
Title:
|
Managing Director Export and Agency Finance
|
Title:
|
||
388 Greenwich Street/20
th
Floor
|
||||
(212) 816-1008
|
By:
|
/s/ Yang Woon-Sung
|
By:
|
||
Name:
|
Yang Woon-Sung
|
Name:
|
||
Title:
|
Senior Loan Officer
|
Title:
|
By:
|
/s/ Gary E. Kalbaugh
|
By:
|
||
Name:
|
Gary E. Kalbaugh
|
Name:
|
||
Title:
|
Director
|
Title:
|
By:
|
/s/ Adam Byrne
|
By:
|
/s/ Graham Wallden
|
|
Name:
|
Adam Byrne
|
Name:
|
Graham Wallden
|
|
Title:
|
Managing Director
|
Title:
|
Director
|
By:
|
/s/ Frühauf
|
By:
|
/s/ G
őtz
|
|
Name:
|
Frühauf
|
Name:
|
G
őtz
|
|
Title:
|
Vice President
|
Title:
|
Vice President
|
By:
|
/s/ James M. Miller
|
By:
|
||
Name:
|
James M. Miller
|
Name:
|
||
Title:
|
Head of Americas Origination
Structured Asset Finance
|
Title:
|
By:
|
/s/ Edward-SL Hul
|
By:
|
/s/ Ken-KS Cheng
|
|
Name:
|
Edward-SL Hul
|
Name:
|
Ken-KS Cheng
|
|
Title:
|
Vice President
|
Title:
|
Associate
|
|
Structured Trade & Export Finance,
Hong Kong
|
Structured Trade & Export Finance,
Hong Kong
|
By:
|
/s/ Manfred Fischer
|
By:
|
/s/ Oliver Hannusch
|
|
Name:
|
Manfred Fischer
|
Name:
|
Oliver Hannusch
|
|
Title:
|
Managing Director
|
Title:
|
Associate Director
|
By:
|
/s/ Jean-Baptiste Piette
|
By:
|
/s/ Puiki Lok
|
|
Name:
|
Jean-Baptiste Piette
|
Name:
|
Puiki Lok
|
|
Title:
|
Executive Director
|
Title:
|
Vice President
|
By:
|
/s/ Remedios Cantalapiedra
|
By:
|
/s/ Carmen Velazquez
|
|
Name:
|
Remedios Cantalapiedra
|
Name:
|
Carmen Velazquez
|
|
Title:
|
Associate
|
Title:
|
Associate
|
Subsidiary
|
Country of Incorporation
|
Dorian LPG Management Corp.
|
Marshall Islands
|
Dorian LPG Finance LLC
|
Marshall Islands
|
Dorian LPG (USA) LLC
|
United States (Delaware)
|
Dorian LPG (UK) Ltd
|
United Kingdom
|
CNML LPG Transport LLC
|
Marshall Islands
|
CJNP LPG Transport LLC
|
Marshall Islands
|
CMNL LPG Transport LLC
|
Marshall Islands
|
Grendon Tanker LLC
|
Marshall Islands
|
Comet LPG Transport LLC
|
Marshall Islands
|
Corsair LPG Transport LLC
|
Marshall Islands
|
Corvette LPG Transport LLC
|
Marshall Islands
|
Concorde LPG Transport LLC
|
Marshall Islands
|
Constellation LPG Transport LLC
|
Marshall Islands
|
Commander LPG Transport LLC
|
Marshall Islands
|
Dorian Houston LPG Transport LLC
|
Marshall Islands
|
Dorian Shanghai LPG Transport LLC
|
Marshall Islands
|
Dorian Sao Paulo LPG Transport LLC
|
Marshall Islands
|
Dorian Ulsan LPG Transport LLC
|
Marshall Islands
|
Dorian Amsterdam LPG Transport LLC
|
Marshall Islands
|
Dorian Dubai LPG Transport LLC
|
Marshall Islands
|
Dorian Monaco LPG Transport LLC
|
Marshall Islands
|
Dorian Barcelona LPG Transport LLC
|
Marshall Islands
|
Dorian Geneva LPG Transport LLC
|
Marshall Islands
|
Dorian Cape Town LPG Transport LLC
|
Marshall Islands
|
Dorian Tokyo LPG Transport LLC
|
Marshall Islands
|
Dorian Explorer LPG Transport LLC
|
Marshall Islands
|
Dorian Exporter LPG Transport LLC
|
Marshall Islands
|
1.
|
I have reviewed this annual report on Form 10-K of Dorian LPG Ltd.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of and for, the periods presented in this report;
|
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
|
|
(a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;
|
|
(b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
(c)
|
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
(d)
|
disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
(a)
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
(b)
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
/s/
John Hadjipateras
|
|
John Hadjipateras
|
|
Chief Executive Officer
|
1.
|
I have reviewed this annual report on Form 10-K of Dorian LPG Ltd.;
|
2.
|
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
|
3.
|
Based on my knowledge, the financial statements and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of and for, the periods presented in this report;
|
4.
|
The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
|
|
(a)
|
designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Report is being prepared;
|
|
(b)
|
designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
|
|
(c)
|
evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
|
|
(d)
|
disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
|
5.
|
The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
|
|
(a)
|
all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
|
|
(b)
|
any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
|
/s/ Theodore B. Young
|
|
Theodore B. Young
|
|
Chief Financial Officer
|
|
1.
|
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities and Exchange Act of 1934; and
|
|
2.
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
/s/
John Hadjipateras
|
|
John Hadjipateras
|
|
Chief Executive Officer
|
|
1.
|
the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities and Exchange Act of 1934; and
|
|
2.
|
the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
|
/s/ Theodore B. Young
|
|
Theodore B. Young
|
|
Chief Financial Officer
|