☐
|
REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
☒
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
☐
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
☐
|
SHELL COMPANY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
DIANA SHIPPING INC.
(Exact name of Registrant as specified in its charter)
Diana Shipping Inc.
|
(Translation of Registrant's name into English)
|
|
Republic of the Marshall Islands
|
(Jurisdiction of incorporation or organization)
|
Pendelis 16, 175 64 Palaio Faliro, Athens, Greece |
(Address of principal executive offices) |
Mr. Ioannis Zafirakis
Tel: + 30-210-9470-100, Fax: + 30-210-9470-101
E-mail: izafirakis@dianashippinginc.com
|
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person) |
Title of each class
|
Name of each exchange on which registered
|
Common Stock, $0.01 par value
|
New York Stock Exchange
|
Preferred Stock Purchase Rights
|
New York Stock Exchange
|
8.875% Series B Cumulative Redeemable Perpetual Preferred Shares, $0.01 par value
|
New York Stock Exchange
|
8.500% Senior Notes due 2020
|
New York Stock Exchange
|
Large accelerated filer ☐
|
Accelerated filer ☒
|
Non-accelerated filer ☐
|
U.S. GAAP ☒
|
International Financial Reporting Standards as issued ☐
by the International Accounting Standards Board
|
Other ☐ |
|
FORWARD-LOOKING STATEMENTS
|
4
|
|
PART I
|
||
Item 1.
|
Identity of Directors, Senior Management and Advisers
|
5
|
Item 2.
|
Offer Statistics and Expected Timetable
|
5
|
Item 3.
|
Key Information
|
5
|
Item 4.
|
Information on the Company
|
35
|
Item 4A.
|
Unresolved Staff Comments
|
59
|
Item 5.
|
Operating and Financial Review and Prospects
|
59
|
Item 6.
|
Directors, Senior Management and Employees
|
78
|
Item 7.
|
Major Shareholders and Related Party Transactions
|
83
|
Item 8.
|
Financial Information
|
86
|
Item 9.
|
The Offer and Listing
|
88
|
Item 10.
|
Additional Information
|
89
|
Item 11.
|
Quantitative and Qualitative Disclosures about Market Risk
|
99
|
Item 12.
|
Description of Securities Other than Equity Securities
|
99
|
PART II
|
||
Item 13.
|
Defaults, Dividend Arrearages and Delinquencies
|
100
|
Item 14.
|
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
100
|
Item 15.
|
Controls and Procedures
|
100
|
Item 16A.
|
Audit Committee Financial Expert
|
101
|
Item 16B.
|
Code of Ethics
|
101
|
Item 16C.
|
Principal Accountant Fees and Services
|
101
|
Item 16D.
|
Exemptions from the Listing Standards for Audit Committees
|
102
|
Item 16E.
|
Purchases of Equity Securities by the Issuer and Affiliated Purchasers
|
102
|
Item 16F.
|
Change in Registrant's Certifying Accountant
|
103
|
Item 16G.
|
Corporate Governance
|
103
|
Item 16H.
|
Mine Safety Disclosure
|
103
|
PART III
|
||
Item 17.
|
Financial Statements
|
104
|
Item 18.
|
Financial Statements
|
104
|
Item 19.
|
Exhibits
|
104
|
Item 1. |
Identity of Directors, Senior Management and Advisers
|
Item 2. |
Offer Statistics and Expected Timetable
|
Item 3. |
Key Information
|
A. |
Selected Financial Data
|
|
As of and for the
|
|||||||||||||||||||
|
Year Ended December 31,
|
|||||||||||||||||||
|
2017
|
2016
|
2015
|
2014
|
2013
|
|||||||||||||||
|
(in thousands of U.S. dollars,
|
|||||||||||||||||||
|
except for share and per share data, fleet data and average daily results)
|
|||||||||||||||||||
Statement of Operations Data:
|
||||||||||||||||||||
Time charter revenues
|
$
|
161,897
|
$
|
114,259
|
$
|
157,712
|
$
|
175,576
|
$
|
164,005
|
||||||||||
Impairment loss
|
442,274
|
-
|
-
|
-
|
-
|
|||||||||||||||
Operating loss
|
(483,987
|
)
|
(88,321
|
)
|
(47,177
|
)
|
(18,204
|
)
|
(8,653
|
)
|
||||||||||
Net loss
|
(511,714
|
)
|
(164,237
|
)
|
(64,713
|
)
|
(10,268
|
)
|
(21,205
|
)
|
||||||||||
Dividends on series B preferred shares
|
(5,769
|
)
|
(5,769
|
)
|
(5,769
|
)
|
(5,080
|
)
|
-
|
|||||||||||
Loss attributed to common stockholders
|
(517,483
|
)
|
(170,006
|
)
|
(70,482
|
)
|
(15,348
|
)
|
(21,205
|
)
|
||||||||||
Loss per common share, basic and diluted
|
(5.41
|
)
|
(2.11
|
)
|
(0.89
|
)
|
(0.19
|
)
|
(0.26
|
)
|
||||||||||
Weighted average number of common shares, basic and diluted
|
95,731,093
|
80,441,517
|
79,518,009
|
81,292,290
|
81,328,390
|
|||||||||||||||
Balance Sheet Data:
|
||||||||||||||||||||
Total assets
|
$
|
1,246,722
|
$
|
1,668,663
|
$
|
1,836,965
|
$
|
1,787,122
|
$
|
1,701,981
|
||||||||||
Total current liabilities
|
|
80,441
|
|
78,225
|
|
58,889
|
|
98,092
|
|
62,297
|
||||||||||
Capital stock
|
1,071,587
|
986,044
|
977,731
|
972,125
|
927,032
|
|||||||||||||||
Long-term debt (including current portion), net of deferred financing costs
|
601,384
|
598,181
|
600,071
|
484,256
|
431,557
|
|||||||||||||||
Total stockholders' equity
|
624,758
|
1,056,589
|
1,218,366
|
1,282,226
|
1,253,392
|
|
Year Ended December 31,
|
|||||||||||||||||||
|
2017
|
2016
|
2015
|
2014
|
2013
|
|||||||||||||||
|
(in thousands of U.S. dollars,
|
|||||||||||||||||||
|
except for share and per share data and average daily results)
|
|||||||||||||||||||
Cash Flow Data:
|
||||||||||||||||||||
Net cash provided by/(used in) operating activities
|
$
|
23,413
|
$
|
(20,998
|
)
|
$
|
23,945
|
$
|
44,910
|
$
|
67,400
|
|||||||||
Net cash used in investing activities
|
(152,333
|
)
|
(41,619
|
)
|
(155,637
|
)
|
(152,513
|
)
|
(245,156
|
)
|
||||||||||
Net cash provided by/(used in) financing activities*
|
73,587
|
(9,459
|
)
|
106,009
|
85,871
|
(28,235
|
)
|
|||||||||||||
|
* Comparative amounts have been reclassified due to current presentation of restricted cash following the early adoption of ASU No. 2016-18 – Statement of Cash Flows – Restricted Cash.
|
Fleet Data:
|
||||||||||||||||||||
Average number of vessels (1)
|
49.6
|
45.2
|
40.8
|
37.9
|
33.0
|
|||||||||||||||
Number of vessels at year-end
|
50.0
|
46.0
|
43.0
|
39.0
|
36.0
|
|||||||||||||||
Weighted average age of vessels at year-end (in years)
|
8.4
|
8.2
|
7.4
|
7.1
|
6.6
|
|||||||||||||||
Ownership days (2)
|
18,119
|
16,542
|
14,900
|
13,822
|
12,049
|
|||||||||||||||
Available days (3)
|
17,890
|
16,447
|
14,600
|
13,650
|
12,029
|
|||||||||||||||
Operating days (4)
|
17,566
|
16,354
|
14,492
|
13,564
|
11,944
|
|||||||||||||||
Fleet utilization (5)
|
98.2
|
%
|
99.4
|
%
|
99.3
|
%
|
99.4
|
%
|
99.3
|
%
|
Average Daily Results:
|
||||||||||||||||||||
Time charter equivalent (TCE) rate (6)
|
$
|
8,568
|
$
|
6,106
|
$
|
9,739
|
$
|
12,081
|
$
|
12,959
|
||||||||||
Daily vessel operating expenses (7)
|
4,987
|
5,196
|
5,924
|
6,289
|
6,408
|
(1) |
Average number of vessels is the number of vessels that constituted our fleet for the relevant period, as measured by the sum of the number of days each vessel was a part of our fleet during the period divided by the number of calendar days in the period.
|
(2) |
Ownership days are the aggregate number of days in a period during which each vessel in our fleet has been owned by us. Ownership days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses that we record during a period.
|
(3) |
Available days are the number of our ownership days less the aggregate number of days that our vessels are off-hire due to scheduled repairs or repairs under guarantee, vessel upgrades or special surveys and the aggregate amount of time that we spend positioning our vessels for such events. The shipping industry uses available days to measure the number of days in a period during which vessels should be capable of generating revenues.
|
(4) |
Operating days are the number of available days in a period less the aggregate number of days that our vessels are off-hire due to any reason, including unforeseen circumstances. The shipping industry uses operating days to measure the aggregate number of days in a period during which vessels actually generate revenues.
|
(5) |
We calculate fleet utilization by dividing the number of our operating days during a period by the number of our available days during the period. The shipping industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the amount of days that its vessels are off-hire for reasons other than scheduled repairs or repairs under guarantee, vessel upgrades, special surveys or vessel positioning for such events.
|
(6) |
Time charter equivalent rates, or TCE rates, are defined as our time charter revenues less voyage expenses during a period divided by the number of our available days during the period, which is consistent with industry standards. Voyage expenses include port charges, bunker (fuel) expenses, canal charges and commissions. TCE rate is a non-GAAP measure, and management believes it is useful to investors because it is a standard
shipping industry
performance measure used primarily to compare daily earnings generated by vessels on time charters with daily earnings generated by vessels on voyage charters, because charter hire rates for vessels on voyage charters are generally not expressed in per day amounts while charter hire rates
for vessels on time charters are generally expressed in such amounts. The following table reflects the calculation of our TCE rates for the periods presented.
|
Time charter revenues
|
$
|
161,897
|
$
|
114,259
|
$
|
157,712
|
$
|
175,576
|
$
|
164,005
|
||||||||||
Less: voyage expenses
|
(8,617
|
)
|
(13,826
|
)
|
(15,528
|
)
|
(10,665
|
)
|
(8,119
|
)
|
||||||||||
Time charter equivalent revenues
|
$
|
153,280
|
$
|
100,433
|
$
|
142,184
|
$
|
164,911
|
$
|
155,886
|
||||||||||
Available days
|
17,890
|
16,447
|
14,600
|
13,650
|
12,029
|
|||||||||||||||
Time charter equivalent (TCE) rate
|
$
|
8,568
|
$
|
6,106
|
$
|
9,739
|
$
|
12,081
|
$
|
12,959
|
(7) |
Daily vessel operating expenses, which include crew wages and related costs, the cost of insurance, expenses relating to repairs and maintenance, the costs of spares and consumable stores, tonnage taxes and other miscellaneous expenses, are calculated by dividing vessel operating expenses by ownership days for the relevant period.
|
B. |
Capitalization and Indebtedness
|
C. |
Reasons for the Offer and Use of Proceeds
|
D. |
Risk Factors
|
Ÿ |
supply of and demand for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
Ÿ |
changes in the exploration or production of energy resources, commodities, semi-finished and finished consumer and industrial products;
|
Ÿ |
the location of regional and global exploration, production and manufacturing facilities;
|
Ÿ |
the location of consuming regions for energy resources, commodities, semi-finished and finished consumer and industrial products;
|
Ÿ |
the globalization of production and manufacturing;
|
Ÿ |
global and regional economic and political conditions, including armed conflicts and terrorist activities; embargoes and strikes;
|
Ÿ |
natural disasters and other disruptions in international trade;
|
Ÿ |
developments in international trade;
|
Ÿ |
changes in seaborne and other transportation patterns, including the distance cargo is transported by sea;
|
Ÿ |
environmental and other regulatory developments;
|
Ÿ |
currency exchange rates; and
|
Ÿ |
weather.
|
Ÿ |
the number of newbuilding orders and deliveries, including slippage in deliveries;
|
Ÿ |
the number of shipyards and ability of shipyards to deliver vessels;
|
Ÿ |
port and canal congestion;
|
Ÿ |
the scrapping rate of older vessels;
|
Ÿ |
vessel casualties; and
|
Ÿ |
the number of vessels that are out of service, namely those that are laid-up, drydocked, awaiting repairs or otherwise not available for hire.
|
· |
marine disaster;
|
· |
terrorism;
|
· |
environmental accidents;
|
· |
cargo and property losses or damage;
|
· |
business interruptions caused by mechanical failure, human error, war, terrorism, political action in various countries, labor strikes or adverse weather conditions; and
|
· |
piracy.
|
· |
the prevailing level of charter hire rates;
|
· |
general economic and market conditions affecting the shipping industry;
|
· |
competition from other shipping companies and other modes of transportation;
|
· |
the types, sizes and ages of vessels;
|
· |
the supply of and demand for vessels;
|
· |
applicable governmental or other regulations;
|
· |
technological advances; and
|
· |
the cost of newbuildings.
|
· |
locate and acquire suitable vessels;
|
· |
identify and consummate acquisitions or joint ventures;
|
· |
enhance our customer base;
|
· |
manage our expansion; and
|
· |
obtain required financing on acceptable terms.
|
· |
pay dividends if we do not repay amounts drawn under our loan facilities, if there is a default under the loan facilities or if the payment of the dividend would result in a default or breach of a loan covenant;
|
· |
incur additional indebtedness, including through the issuance of guarantees;
|
· |
change the flag, class or management of our vessels;
|
· |
create liens on our assets;
|
· |
sell our vessels;
|
· |
enter into a time charter or consecutive voyage charters that have a term that exceeds, or which by virtue of any optional extensions may exceed a certain period;
|
· |
merge or consolidate with, or transfer all or substantially all our assets to, another person; and
|
· |
enter into a new line of business.
|
· |
actual or anticipated fluctuations in our quarterly and annual results and those of other public companies in our industry;
|
· |
mergers and strategic alliances in the dry bulk shipping industry;
|
· |
market conditions in the dry bulk shipping industry;
|
· |
changes in government regulation;
|
· |
shortfalls in our operating results from levels forecast by securities analysts;
|
· |
announcements concerning us or our competitors; and
|
· |
the general state of the securities market.
|
· |
authorizing our board of directors to issue "blank check" preferred stock without shareholder approval;
|
· |
providing for a classified board of directors with staggered, three
-
year terms;
|
· |
prohibiting cumulative voting in the election of directors;
|
· |
authorizing the removal of directors only for cause and only upon the affirmative vote of the holders of a majority of the outstanding shares of our common stock entitled to vote for the directors;
|
· |
prohibiting shareholder action by written consent;
|
· |
limiting the persons who may call special meetings of shareholders; and
|
· |
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.
|
● |
changes in our operating cash flow, capital expenditure requirements, working capital requirements and other cash needs;
|
● |
restrictions under our existing or future credit facilities or any future debt securities on our ability to pay dividends if an event of default has occurred and is continuing or if the payment of the dividend would result in an event of default, or under certain facilities if it would result in the breach of certain financial covenants;
|
● |
the amount of any cash reserves established by our board of directors; and
|
● |
restrictions under Marshall Islands law, which generally prohibits the payment of dividends other than from surplus (retained earnings and the excess of consideration received for the sale of shares above the par value of the shares) or while a company is insolvent or would be rendered insolvent by the payment of such a dividend.
|
Item 4. |
Information on the Company
|
A. |
History and development of the Company
|
B. |
Business overview
|
Vessel
|
Sister
Ships*
|
Gross Rate
(USD Per Day)
|
Com**
|
Charterers
|
Delivery Date to Charterers***
|
Redelivery Date to Owners****
|
Notes
|
|
BUILT DWT
|
||||||||
22 Panamax Bulk Carriers
|
||||||||
1
|
DANAE
|
A
|
$10,000
|
5.00%
|
Phaethon International Company AG
|
22-Dec-17
|
22-Jan-19 - 7-May-19
|
|
2001 75,106
|
||||||||
2
|
DIONE
|
A
|
$7,050
|
5.00%
|
Caravel Shipping Limited, Hong Kong
|
3-Feb-17
|
23-Jan-18
|
1
|
$10,350
|
5.00%
|
Ausca Shipping Limited, Hong Kong
|
23-Jan-18
|
23-Mar-19 - 8-Jul-19
|
||||
2001 75,172
|
||||||||
3
|
NIREFS
|
A
|
$9,400
|
5.00%
|
Jaldhi Overseas Pte. Ltd., Singapore
|
5-May-17
|
5-Jun-18 - 5-Sep-18
|
|
2001 75,311
|
||||||||
4
|
ALCYON
|
A
|
$8,800
|
5.00%
|
Hudson Shipping Lines Incorporated
|
20-Jul-17
|
20-Jul-18 - 20-Oct-18
|
|
2001 75,247
|
||||||||
5
|
TRITON
|
A
|
$6,500
|
5.00%
|
Ausca Shipping Limited, Hong Kong
|
8-Jun-17
|
8-Jul-18 - 23-Oct-18
|
|
2001 75,336
|
||||||||
6
|
OCEANIS
|
A
|
$7,000
|
5.00%
|
Ausca Shipping Limited, Hong Kong
|
30-May-17
|
30-Jul-18 - 14-Nov-18
|
|
2001 75,211
|
||||||||
7
|
THETIS
|
B
|
$8,350
|
5.00%
|
Ausca Shipping Limited, Hong Kong
|
14-Jul-17
|
14-Jul-18 - 14-Oct-18
|
|
2004 73,583
|
||||||||
8
|
PROTEFS
|
B
|
$7,900
|
5.00%
|
Hudson Shipping Lines Incorporated
|
24-Jun-17
|
24-Jun-18 - 9-Oct-18
|
|
2004 73,630
|
||||||||
9
|
CALIPSO
|
B
|
$9,000
|
5.00%
|
Transgrain Shipping B.V., Rotterdam
|
14-Mar-17
|
2-Mar-18
|
2
|
$12,200
|
5.00%
|
Glencore Agriculture B.V., Rotterdam
|
12-Mar-18
|
28-May-19 - 12-Sep-19
|
||||
2005 73,691
|
||||||||
10
|
CLIO
|
B
|
$8,550
|
5.00%
|
Phaethon International Company AG
|
9-Jul-17
|
9-Aug-18 - 9-Nov-18
|
|
2005 73,691
|
||||||||
11
|
NAIAS
|
B
|
$10,000
|
5.00%
|
Phaethon International Company AG
|
26-Nov-17
|
11-Feb-19 - 26-May-19
|
|
2006 73,546
|
||||||||
12
|
ARETHUSA
|
B
|
$7,200
|
5.00%
|
Noble Resources International Pte. Ltd., Singapore
|
23-Jan-17
|
20-Mar-18 - 27-Apr-18
|
3,4
|
2007 73,593
|
||||||||
13
|
ERATO
|
C
|
$10,500
|
5.00%
|
Phaethon International Company AG
|
30-Dec-17
|
2-Mar-19 - 30-May-19
|
|
2004 74,444
|
||||||||
14
|
CORONIS
|
C
|
$9,000
|
5.00%
|
Narina Maritime Ltd
|
16-May-17
|
16-Apr-18 - 16-Jul-18
|
|
2006 74,381
|
||||||||
15
|
MELIA
|
$9,500
|
5.00%
|
Nidera S.P.A., Roma
|
19-Mar-17
|
25-Mar-18 - 4-May-18
|
3,5
|
|
2005 76,225
|
||||||||
16
|
ARTEMIS
|
$9,000
|
5.00%
|
Ausca Shipping Limited, Hong Kong
|
8-Jul-17
|
8-Jul-18 - 8-Oct-18
|
||
2006 76,942
|
||||||||
17
|
LETO
|
$7,750
|
5.00%
|
Glencore Agriculture B.V., Rotterdam
|
29-Dec-16
|
10-Jan-18
|
||
$12,500
|
5.00%
|
10-Jan-18
|
10-May-19 - 25-Aug-19
|
|||||
2010 81,297
|
||||||||
18
|
SELINA
|
D
|
$7,100
|
5.00%
|
BG Shipping Co., Limited, Hong Kong
|
24-Jan-17
|
6-Feb-18
|
6
|
$12,250
|
5.00%
|
6-Feb-18
|
6-Jun-19 - 6-Sep-19
|
|||||
2010 75,700
|
||||||||
19
|
MAERA
|
D
|
$11,900
|
5.00%
|
Unico Logistics Co., Ltd., Seoul
|
19-Sep-17
|
19-Jun-18 - 19-Aug-18
|
|
2013 75,403
|
||||||||
20
|
ISMENE
|
$12,000
|
5.00%
|
DHL Project & Chartering Limited, Hong Kong
|
16-Sep-17
|
16-Sep-18 - 16-Dec-18
|
||
2013 77,901
|
||||||||
21
|
CRYSTALIA
|
E
|
$11,100
|
5.00%
|
Glencore Agriculture B.V., Rotterdam
|
3-Oct-17
|
3-Oct-18 - 18-Jan-19
|
|
2014 77,525
|
||||||||
22
|
ATALANDI
|
E
|
$5,300
|
5.00%
|
Glencore Grain B.V., Rotterdam
|
26-Mar-16
|
23-Mar-18 - 26-Apr-18
|
3
|
2014 77,529
|
5 Kamsarmax Bulk Carriers
|
||||||||
23
|
MAIA
|
F
|
$10,125
|
5.00%
|
Glencore Agriculture B.V., Rotterdam
|
27-Jul-17
|
27-Jul-18 - 27-Oct-18
|
|
2009 82,193
|
||||||||
24
|
MYRSINI
|
F
|
$8,650
|
5.00%
|
RWE Supply & Trading GmbH, Essen
|
8-Jun-17
|
31-Aug-18 - 31-Dec-18
|
|
2010 82,117
|
||||||||
25
|
MEDUSA
|
F
|
$10,000
|
4.75%
|
Cargill International S.A., Geneva
|
6-Jul-17
|
6-Jul-18 - 6-Oct-18
|
|
2010 82,194
|
||||||||
26
|
MYRTO
|
F
|
$8,000
|
4.75%
|
Cargill International S.A., Geneva
|
17-Jan-17
|
24-Mar-18 - 17-Apr-18
|
3,7
|
2013 82,131
|
||||||||
27
|
ASTARTE
|
$9,000
|
5.00%
|
Glencore Agriculture B.V., Rotterdam
|
12-Jun-17
|
12-Aug-18 - 12-Nov-18
|
||
2013 81,513
|
||||||||
5 Post-Panamax Bulk Carriers
|
||||||||
28
|
ALCMENE
|
$8,000
|
4.75%
|
Cargill International S.A., Geneva
|
8-Jun-17
|
8-Jul-18 - 23-Oct-18
|
||
2010 93,193
|
||||||||
29
|
AMPHITRITE
|
G
|
$11,150
|
4.75%
|
Cargill International S.A., Geneva
|
28-Sep-17
|
28-Oct-18 - 28-Jan-19
|
|
2012 98,697
|
||||||||
30
|
POLYMNIA
|
G
|
$10,100
|
4.75%
|
Cargill International S.A., Geneva
|
15-Mar-17
|
31-Mar-18 - 15-Jul-18
|
|
2012 98,704
|
||||||||
31
|
ELECTRA
|
H
|
$8,000
|
5.00%
|
Uniper Global Commodities SE, Düsseldorf
|
11-Jun-17
|
11-Jul-18 - 11-Nov-18
|
|
2013 87,150
|
||||||||
32
|
PHAIDRA
|
H
|
$7,750
|
5.00%
|
Jera Trading Singapore Pte. Ltd.
|
19-May-17
|
13-Jan-18
|
8
|
$12,700
|
5.00%
|
Uniper Global Commodities SE, Düsseldorf
|
13-Jan-18
|
13-Jan-19 - 13-Apr-19
|
||||
2013 87,146
|
4 Newcastlemax Bulk Carriers
|
||||||||
47
|
LOS ANGELES
|
L
|
BCI_2014 5TCs AVG + 14%
|
5.00%
|
SwissMarine Services S.A., Geneva
|
22-Jan-17
|
22-Mar-18 - 22-Apr-18
|
3
|
2012 206,104
|
||||||||
48
|
PHILADELPHIA
|
L
|
$15,500
|
5.00%
|
Koch Shipping Pte. Ltd., Singapore
|
14-Mar-17
|
24-Mar-18 - 29-Apr-18
|
3
|
2012 206,040
|
||||||||
49
|
SAN FRANCISCO
|
M
|
$11,750
|
5.00%
|
Koch Shipping Pte. Ltd., Singapore
|
5-Jan-17
|
26-Mar-18 - 20-May-18
|
3
|
2017 208,006
|
||||||||
50
|
NEWPORT NEWS
|
M
|
BCI_2014 5TCs AVG + 24%
|
5.00%
|
SwissMarine Services S.A., Geneva
|
10-Jan-17
|
10-Nov-18 - 10-Mar-19
|
|
2017 208,021
|
* Each dry bulk carrier is a "sister ship", or closely similar, to other dry bulk carriers that have the same letter.
|
** Total commission percentage paid to third parties.
|
*** In case of newly acquired vessel with time charter attached, this date refers to the expected/actual date of delivery of the vessel to the Company.
|
**** Range of redelivery dates, with the actual date of redelivery being at the Charterers' option, but subject to the terms, conditions, and exceptions of the particular charterparty.
|
1 The charter rate was US$7,200 for the first ninety (90) days of the charter period.
|
2 Vessel on scheduled drydocking from March 4, 2018 to March 12, 2018.
|
3 Based on latest information.
|
4 Vessel off-hire for drydocking from January 23, 2018 to February 27, 2018.
|
5 Since September 17, 2017, Charterers have changed to COFCO Agri Freight SA.
|
6 The charter rate was US$4,500 for the first thirty (30) days of the charter period.
|
7 Vessel off-hire for drydocking from December 24, 2017 to January 12, 2018.
|
8 Charterers have agreed to pay the weighted average of the 4 T/C routes, as published by the Baltic Exchange on January 3, 2018 plus 12%, for the excess period commencing from January 3, 2018.
|
9 The charter rate was US$5,150 for the first fifteen (15) days of the charter period.
|
10 Charterers have agreed to pay the weighted average of the 5 T/C routes, as published by the Baltic Exchange on January 2, 2018 plus 10%, for the excess period commencing from December 29, 2017.
|
· |
Very Large Ore Carriers
. Very large ore carriers, or VLOCs, have a carrying capacity of more than 200,000 dwt and are a comparatively new sector of the dry bulk carrier fleet. VLOCs are built to exploit economies of scale on long-haul iron ore routes.
|
· |
Capesize
. Capesize vessels have a carrying capacity of 110,000-199,999 dwt. Only the largest ports around the world possess the infrastructure to accommodate vessels of this size. Capesize vessels are primarily used to transport iron ore or coal and, to a much lesser extent, grains, primarily on long-haul routes.
|
· |
Post-Panamax
. Post-Panamax vessels have a carrying capacity of 80,000-109,999 dwt. These vessels tend to have a shallower draft and larger beam than a standard Panamax vessel with a higher cargo capacity. These vessels have been designed specifically for loading high cubic cargoes from draught restricted ports, although they cannot transit the Panama Canal.
|
· |
Panamax
. Panamax vessels have a carrying capacity of 60,000-79,999 dwt. These vessels carry coal, iron ore, grains, and, to a lesser extent, minor bulks, including steel products, cement and fertilizers. Panamax vessels are able to pass through the Panama Canal, making them more versatile than larger vessels with regard to accessing different trade routes. Most Panamax and Post-Panamax vessels are "gearless," and therefore must be served by shore-based cargo handling equipment. However, there are a small number of geared vessels with onboard cranes, a feature that enhances trading flexibility and enables operation in ports which have poor infrastructure in terms of loading and unloading facilities.
|
· |
Handymax/Supramax
. Handymax vessels have a carrying capacity of 40,000-59,999 dwt. These vessels operate in a large number of geographically dispersed global trade routes, carrying primarily grains and minor bulks. Within the Handymax category there is also a sub-sector known as Supramax. Supramax bulk carriers are ships between 50,000 to 59,999 dwt, normally offering cargo loading and unloading flexibility with on-board cranes, or "gear," while at the same time possessing the cargo carrying capability approaching conventional Panamax bulk carriers.
|
· |
Handysize
.
Handysize vessels have a carrying capacity of up to 39,999 dwt. These vessels are primarily involved in carrying minor bulk cargoes. Increasingly, ships of this type operate within regional trading routes, and may serve as trans-shipment feeders for larger vessels. Handysize vessels are well suited for small ports with length and draft restrictions. Their cargo gear enables them to service ports lacking the infrastructure for cargo loading and unloading.
|
· |
We own a modern, high quality fleet of dry bulk carriers
. We believe that owning a modern, high quality fleet reduces operating costs, improves safety and provides us with a competitive advantage in securing favorable time charters. We maintain the quality of our vessels by carrying out regular inspections, both while in port and at sea, and adopting a comprehensive maintenance program for each vessel.
|
· |
Our fleet includes thirteen groups of sister ships.
We believe that maintaining a fleet that includes sister ships enhances the revenue generating potential of our fleet by providing us with operational and scheduling flexibility. The uniform nature of sister ships also improves our operating efficiency by allowing our fleet manager to apply the technical knowledge of one vessel to all vessels of the same series and creates economies of scale that enable us to realize cost savings when maintaining, supplying and crewing our vessels.
|
· |
We have an experienced management team.
Our management team consists of experienced executives who have, on average, more than 30 years of operating experience in the shipping industry and has demonstrated ability in managing the commercial, technical and financial areas of our business. Our management team is led by Mr. Simeon Palios, a qualified naval architect and engineer who has more than 40 years of experience in the shipping industry.
|
· |
We benefit from the experience and reputation of Diana Shipping Services S.A. and the relationship with Wilhelmsen Ship Management through the Diana Wilhelmsen Management Limited joint venture.
|
· |
We benefit from strong relationships with members of the shipping and financial industries.
We have developed strong relationships with major international charterers, shipbuilders and financial institutions that we believe are the result of the quality of our operations, the strength of our management team and our reputation for dependability.
|
· |
We have a strong balance sheet and a relatively low level of indebtedness.
We believe that our strong balance sheet and relatively low level of indebtedness provide us with the flexibility to increase the amount of funds that we may draw under our loan facilities in connection with any future acquisitions or otherwise and enable us to use cash flow that would otherwise be dedicated to debt service for other purposes.
|
(i) |
injury to, destruction or loss of, or loss of use of, natural resources and related assessment costs;
|
(ii) |
injury to, or economic losses resulting from, the destruction of real and personal property;
|
(iii) |
loss of subsistence use of natural resources that are injured, destroyed or lost;
|
(iv) |
net loss of taxes, royalties, rents, fees or net profit revenues resulting from injury, destruction or loss of real or personal property, or natural resources;
|
(v) |
lost profits or impairment of earning capacity due to injury, destruction or loss of real or personal property or natural resources; and
|
(vi) |
net cost of increased or additional public services necessitated by removal activities following a discharge of oil, 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, 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.
|
C. |
Organizational structure
|
D. |
Property, plants and equipment
|
A. |
Operating results
|
· |
Ownership days.
We define ownership days as the aggregate number of days in a period during which each vessel in our fleet has been owned by us. Ownership days are an indicator of the size of our fleet over a period and affect both the amount of revenues and the amount of expenses that we record during a period.
|
· |
Available days.
We define available days as the number of our ownership days less the aggregate number of days that our vessels are off-hire due to scheduled repairs or repairs under guarantee, vessel upgrades or special surveys and the aggregate amount of time that we spend positioning our vessels for such events. The shipping industry uses available days to measure the number of days in a period during which vessels should be capable of generating revenues.
|
· |
Operating days.
We define operating days as the number of our available days in a period less the aggregate number of days that our vessels are off-hire due to any reason, including unforeseen circumstances. The shipping industry uses operating days to measure the aggregate number of days in a period during which vessels actually generate revenues.
|
· |
Fleet utilization.
We calculate fleet utilization by dividing the number of our operating days during a period by the number of our available days during the period. The shipping industry uses fleet utilization to measure a company's efficiency in finding suitable employment for its vessels and minimizing the amount of days that its vessels are off-hire for reasons other than scheduled repairs or repairs under guarantee, vessel upgrades, special surveys or vessel positioning for such events
.
|
· |
TCE rates.
We define Time Charter Equivalent, or TCE rates as our time charter revenues less voyage expenses during a period divided by the number of our available days during the period, which is consistent with industry standards. TCE rate is a non-GAAP measure and is a standard shipping industry performance measure used primarily to compare daily earnings generated by vessels on time charters with daily earnings generated by vessels on voyage charters, because charter hire rates for vessels on voyage charters are generally not expressed in per day amounts while charter hire rates for vessels on time charters generally are expressed in such amounts.
|
Year Ended December 31,
|
||||||||||||
2017
|
2016
|
2015
|
||||||||||
Ownership days
|
18,119
|
16,542
|
14,900
|
|||||||||
Available days
|
17,890
|
16,447
|
14,600
|
|||||||||
Operating days
|
17,566
|
16,354
|
14,492
|
|||||||||
Fleet utilization
|
98.2
|
%
|
99.4
|
%
|
99.3
|
%
|
||||||
Time charter equivalent (TCE) rate (1)
|
$
|
8,568
|
$
|
6,106
|
$
|
9,739
|
· |
obtain the charterer's consent to us as the new owner;
|
· |
obtain the charterer's consent to a new technical manager;
|
· |
in some cases, obtain the charterer's consent to a new flag for the vessel;
|
· |
arrange for a new crew for the vessel, and where the vessel is on charter, in some cases, the crew must be approved by the charterer;
|
· |
replace all hired equipment on board, such as gas cylinders and communication equipment;
|
· |
negotiate and enter into new insurance contracts for the vessel through our own insurance brokers;
|
· |
register the vessel under a flag state and perform the related inspections in order to obtain new trading certificates from the flag state;
|
· |
implement a new planned maintenance program for the vessel; and
|
· |
ensure that the new technical manager obtains new certificates for compliance with the safety and vessel security regulations of the flag state.
|
· |
employment and operation of our vessels; and
|
· |
management of the financial, general and administrative elements involved in the conduct of our business and ownership of our vessels.
|
· |
vessel maintenance and repair;
|
· |
crew selection and training;
|
· |
vessel spares and stores supply;
|
· |
contingency response planning;
|
· |
onboard safety procedures auditing;
|
· |
accounting;
|
· |
vessel insurance arrangement;
|
· |
vessel chartering;
|
· |
vessel security training and security response plans (ISPS);
|
· |
obtaining of ISM certification and audit for each vessel within the six months of taking over a vessel;
|
· |
vessel hiring management;
|
· |
vessel surveying; and
|
· |
vessel performance monitoring.
|
· |
management of our financial resources, including banking relationships, i.e., administration of bank loans and bank accounts;
|
· |
management of our accounting system and records and financial reporting;
|
· |
administration of the legal and regulatory requirements affecting our business and assets; and
|
· |
management of the relationships with our service providers and customers.
|
· |
rates and periods of charter hire;
|
· |
levels of vessel operating expenses;
|
· |
depreciation expenses;
|
· |
financing costs; and
|
· |
fluctuations in foreign exchange rates.
|
· |
the duration of our charters;
|
· |
our decisions relating to vessel acquisitions and disposals;
|
· |
the amount of time that we spend positioning our vessels;
|
· |
the amount of time that our vessels spend in drydock undergoing repairs;
|
· |
maintenance and upgrade work;
|
· |
the age, condition and specifications of our vessels;
|
· |
levels of supply and demand in the dry bulk shipping industry; and
|
· |
other factors affecting spot market charter rates for dry bulk carriers.
|
· |
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;
|
· |
news and industry reports of sales of vessels that are not similar to our vessels where we have made certain adjustments in an attempt to derive information that can be used as part of our estimates;
|
· |
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.
|
Average estimated daily time charter equivalent rate used
|
Average break even rate
|
|||||||
Panamax/Kamsarmax/Post-Panamax
|
$
|
10,144
|
$
|
9,170
|
||||
Capesize/Newcastlemax
|
$
|
14,226
|
$
|
11,894
|
1-year
(period)
|
Impairment charge
(in USD million)
|
3-year
(period)
|
Impairment charge
(in USD million)
|
5-year
(period)
|
Impairment charge
(in USD million)
|
|||||||||||||||||||
Panamax/Kamsarmax/Post-Panamax
|
$
|
10,665
|
-
|
$
|
8,140
|
18
|
$
|
9,311
|
10
|
|||||||||||||||
Capesize/Newcastlemax
|
$
|
13,996
|
37
|
$
|
10,462
|
96
|
$
|
13,779
|
63
|
B. |
Liquidity and Capital Resources
|
C. |
Research and development, patents and licenses
|
D. |
Trend information
|
E. |
Off-balance Sheet Arrangements
|
F. |
Tabular Disclosure of Contractual Obligations
|
Payments due by period
|
||||||||||||||||||||
Contractual Obligations
|
Total Amount
|
Less than
1 year
|
2-3 years
|
4-5 years
|
More than
5 years
|
|||||||||||||||
(in thousands of US dollars)
|
||||||||||||||||||||
Loan Agreements and Notes (1)
|
$
|
604,793
|
$
|
62,059
|
$
|
302,475
|
$
|
204,961
|
$
|
35,298
|
||||||||||
Estimated Interest Payments on Loan Agreements and Notes (1)
|
70,148
|
24,525
|
32,033
|
7,423
|
6,167
|
|||||||||||||||
Broker services agreement (2)
|
450
|
450
|
-
|
-
|
-
|
|||||||||||||||
Preferred dividends (3)
|
7,692
|
5,769
|
1,923
|
-
|
-
|
|||||||||||||||
Total
|
$
|
683,083
|
$
|
92,803
|
$
|
336,431
|
$
|
212,384
|
$
|
41,465
|
(1) |
As of December 31, 2017, we had an aggregate principal amount of $604.8 million of indebtedness outstanding under our loan facilities and our Notes. Estimated interest payments represent projected interest payments on our long term debt, which are based on the weighted average LIBOR rate in 2017 plus the margin of our loan agreements in 2017 and the fixed interest rate of our Notes.
|
(2) |
Our agreement with Steamship (formerly Diana Enterprises Inc.) dated April 1, 2017, expires on March 31, 2018.
|
(3) |
On February 24, 2014 we completed an offering of 2,600,000 shares of Series B Perpetual Preferred Stock, at the price of $25.0 per share, and dividends are payable at a rate equal to 8.875% per annum. At any time on or after February 14, 2019, the Series B Preferred Shares may be redeemed, in whole or in part
,
at a redemption price of $25.00 per share
,
plus an amount equal to all accumulated and unpaid dividends thereon to the date of redemption, whether or not declared. The table above presents our obligations for dividend payments until February 14, 2019. The table above does not include the payment for the redemption, which is at our option.
|
G. |
Safe Harbor
|
A. |
Directors and Senior Management
|
Name
|
Age
|
Position
|
|||
Simeon Palios
|
76
|
Class I Director, Chief Executive Officer and Chairman
|
|||
Anastasios Margaronis
|
62
|
Class I Director and President
|
|||
Ioannis Zafirakis
|
46
|
Class I Director, Chief Operating Officer and Secretary
|
|||
Andreas Michalopoulos
|
46
|
Chief Financial Officer and Treasurer
|
|||
Maria Dede
|
45
|
Chief Accounting Officer
|
|||
William (Bill) Lawes
|
74
|
Class II Director
|
|||
Konstantinos Psaltis
|
79
|
Class II Director
|
|||
Kyriacos Riris
|
68
|
Class II Director
|
|||
Apostolos Kontoyannis
|
69
|
Class III Director
|
|||
Semiramis Paliou
|
43
|
Class III Director
|
|||
Konstantinos Fotiadis
|
67
|
Class III Director
|
B. |
Compensation
|
C. |
Board Practices
|
D. |
Employees
|
Year Ended December 31,
|
||||||||||||
2017
|
2016
|
2015
|
||||||||||
Shoreside
|
93
|
95
|
101
|
|||||||||
Seafaring
|
1,006
|
923
|
993
|
|||||||||
Total
|
1,099
|
1,018
|
1,094
|
E. |
Share Ownership
|
A. |
Major Shareholders
|
Title of Class
|
Identity of Person or Group
|
Number of
Shares Owned
|
Percent of Class*
|
||||||||
Common Stock, par value $0.01
|
Simeon Palios (1)
|
24,914,107
|
23.1
|
%
|
|||||||
Franklin Resources Inc. (2)
|
12,833,190
|
11
.
9
|
%
|
||||||||
Kopernik Global Investors, LLC (3)
|
5,573,381
|
5.2
|
%
|
||||||||
All officers and directors as a group (4)
|
29,273,657
|
27.1
|
%
|
(1) |
Mr. Simeon Palios indirectly may be deemed to beneficially own 9,524,360 shares beneficially owned by Ironwood Trading Corp. and 15,389,747 shares beneficially owned by Steamship Shipbroking Enterprises Inc. (formerly Diana Enterprises Inc.), including 4,762,180 shares beneficially owned through Corozal Compania Naviera, as the result of his ability to control the vote and disposition of such entities, for an aggregate of 24,914,107 shares. As of December 31, 2015, 2016 and 2017, Mr. Simeon Palios owned indirectly 20.6%, 22.2% and 22.5%, respectively, of our outstanding common stock.
|
(2) |
This information is derived from a Schedule 13G/A filed with the SEC on February 6, 2018.
|
(3) |
This information is derived from a Schedule 13G/A filed with the SEC on February 9, 2018.
|
(4) |
Mr. Simeon Palios is our only director or officer that beneficially owns 5% or more of our outstanding common stock. Mr. Anastasios Margaronis, our President and a member of our board of directors is indirect shareholder through ownership of stock held in Corozal Compania Naviera S.A., and Ironwood Trading Corp. Mr. Margaronis does not have dispositive or voting power with regard to shares held by Corozal Compania S.A. and Ironwood Trading Corp. and, accordingly, is not considered to be beneficial owner of our common shares held through Corozal Compania Naviera S.A. and Ironwood Trading Corp. Mr. Anastasios Margaronis also owns indirectly 3.2% of our outstanding common stock. Messrs. Lawes, Psaltis, Kontoyannis, Fotiadis and Mrs. Paliou each a non-executive director of ours each owns less than 1% of our outstanding common stock. In addition, Steamship (formerly Diana Enterprises Inc.) owns indirectly 100,390, or 3.9% of the outstanding Series B Preferred Shares and Mr. Anastasios Margaronis owns indirectly 28,025, or 1.1% of the outstanding Series B Preferred Shares. All officers and directors as a group own 133,575, or 5.1% of our outstanding Series B Preferred Shares.
|
B. |
Related Party Transactions
|
C. |
Interests of Experts and Counsel
|
A. |
Consolidated statements and other financial information
|
B. |
Significant Changes
|
Item 9. |
The Offer and Listing
|
A. |
Offer and Listing Details
|
2018
|
2017
|
2016
|
2015
|
2014
|
2013
|
|||||||||||||||||||||||||||||||||||||||||||
Period
|
High
|
Low
|
High
|
Low
|
High
|
Low
|
High
|
Low
|
High
|
Low
|
High
|
Low
|
||||||||||||||||||||||||||||||||||||
Annual
|
$
|
6.03
|
$
|
3.30
|
$
|
4.47
|
$
|
2.02
|
$
|
8.11
|
$
|
3.58
|
$
|
13.55
|
$
|
6.31
|
$
|
13.64
|
$
|
7.47
|
||||||||||||||||||||||||||||
1st quarter
|
$
|
4.79
|
$
|
3.30
|
$
|
4.47
|
$
|
2.02
|
||||||||||||||||||||||||||||||||||||||||
2nd quarter
|
6.03
|
3.50
|
3.46
|
2.12
|
||||||||||||||||||||||||||||||||||||||||||||
3rd quarter
|
4.26
|
3.63
|
3.12
|
2.27
|
||||||||||||||||||||||||||||||||||||||||||||
4th quarter
|
4.57
|
3.66
|
4.11
|
2.40
|
||||||||||||||||||||||||||||||||||||||||||||
September
|
$
|
4.09
|
$
|
3.63
|
||||||||||||||||||||||||||||||||||||||||||||
October
|
4.13
|
3.66
|
||||||||||||||||||||||||||||||||||||||||||||||
November
|
4.57
|
3.85
|
||||||||||||||||||||||||||||||||||||||||||||||
December
|
4.14
|
3.94
|
||||||||||||||||||||||||||||||||||||||||||||||
January
|
$
|
4.50
|
$
|
3.80
|
||||||||||||||||||||||||||||||||||||||||||||
February
|
3.93
|
3.35
|
||||||||||||||||||||||||||||||||||||||||||||||
March*
|
3.89
|
3.70
|
||||||||||||||||||||||||||||||||||||||||||||||
* For the period from March 1, 2018 until March 14, 2018
|
B. |
Plan of Distribution
|
C. |
Markets
|
D. |
Selling Shareholders
|
E. |
Dilution
|
F. |
Expenses of the Issue
|
A. |
Share Capital
|
B. |
Memorandum and Articles of Association
|
C. |
Material Contracts
|
D. |
Exchange Controls
|
E. |
Taxation
|
(1) |
It is organized in a qualified foreign country which, as defined, is one that grants an equivalent exemption from tax to corporations organized in the United States in respect of the Shipping Income for which exemption is being claimed under Section 883 of the Code, or the "Country of Organization Requirement"; and
|
(2) |
It can satisfy any one of the following two stock ownership requirements:
|
· |
more than 50% of its stock, in terms of value, is beneficially owned by qualified shareholders which, as defined, includes individuals who are residents of a qualified foreign country, or the "50% Ownership Test"; or
|
· |
its stock is "primarily and regularly" traded on an established securities market located in the United States or a qualified foreign country, or the "Publicly Traded Test".
|
· |
at least 75% of the Company's 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 the assets held by the corporation during such taxable year produce, or are held for the production of, such passive income.
|
· |
the excess distribution or gain would be allocated ratably over the Non-Electing Holder's aggregate holding period for the common stock;
|
· |
the amount allocated to the current taxable year and any taxable years before the Company became a PFIC would be taxed as ordinary 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 gain is effectively connected with the Non-U.S. Holder's conduct of a trade or business in the United States. If the Non-U.S. Holder is entitled to the benefits of a U.S. income tax treaty with respect to that gain, the gain is taxable in the United States only if attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States; or
|
· |
the Non-U.S. 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 he has failed to report all interest or dividends required to be shown on his U.S. federal income tax returns; or
|
· |
in certain circumstances, fails to comply with applicable certification requirements.
|
F. |
Dividends and paying agents
|
G. |
Statement by experts
|
H. |
Documents on display
|
I. |
Subsidiary information
|
Item 11. |
Quantitative and Qualitative Disclosures about Market Risk
|
Item 12. |
Description of Securities Other than Equity Securities
|
Item 13. |
Defaults, Dividend Arrearages and Delinquencies
|
Item 14. |
Material Modifications to the Rights of Security Holders and Use of Proceeds
|
Item 15. |
Controls and Procedures
|
Name
|
Period
|
Total Number of Common Shares Purchased (1)
|
Average Price Paid per Common Share
|
Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs
|
Maximum Amount that May Yet Be Purchased Under the Plans or Programs
|
|||||||||||||
Steamship Shipbroking Enterprises Inc. (formerly Diana Enterprises Inc.)
|
April 2017
|
4,750,000
|
$
|
4.00
|
N/A
|
N/A
|
||||||||||||
Anamar Investments Inc
|
April 2017
|
750,000
|
$
|
4.00
|
N/A
|
N/A
|
Exhibit
Number
|
Description
|
1.1
|
|
1.2
|
|
2.1
|
|
2.2
|
|
2.3
|
|
2.4
|
|
2.5
|
|
2.6
|
|
4.1
|
|
4.2
|
|
4.3
|
|
4.4
|
|
4.5
|
|
4.6
|
|
4.7
|
|
4.8
|
|
4.9
|
|
4.10
|
|
4.11
|
|
4.12
|
|
4.13
|
|
4.14
|
|
4.15
|
|
4.16
|
|
4.17
|
|
4.18
|
|
4.19
|
4.20
|
|
4.21
|
|
4.22
|
|
4.23
|
|
4.24
|
|
4.25
|
|
4.26
|
|
4.27
|
|
4.28
|
|
4.29
|
|
4.30
|
|
4.31
|
|
4.32
|
|
8.1
|
|
11.1
|
|
12.1
|
|
12.2
|
|
13.1
|
|
13.2
|
|
15.1
|
|
101
|
The following materials from the Company's Annual Report on Form 20-F for the fiscal year ended December 31, 2017, formatted in eXtensible Business Reporting Language (XBRL): (i) Consolidated Balance Sheets as of December 31, 2016 and 2017; (ii) Consolidated Statements of Operations for the years ended December 31, 2015, 2016 and 2017; (iii) Consolidated Statements of Comprehensive Income/(Loss) for the years ended December 31, 2015, 2016 and 2017; (iv) Consolidated Statements of Stockholders' Equity for the years ended December 31, 2015, 2016 and 2017; (v) Consolidated Statements of Cash Flows for the years ended December 31, 2015, 2016 and 2017; and (v) the Notes to Consolidated Financial Statements
|
(1) |
Filed as Exhibit 1 to the Company's Form 6-K filed on May 29, 2008.
|
(2) |
Filed as Exhibit 3.1 to the Company's Form 6-K filed on February 13, 2014.
|
(3) |
Filed as Exhibit 3.3 to the Company's Form 8-A filed on February 13, 2014.
|
(4) |
Filed as Exhibit 3.1 to the Company's Form 8-A12B/A filed on January 15, 2016.
|
(5) |
Filed as Exhibit 4.1 to the Company's Form 6-K filed on May 28, 2015.
|
(6) |
Filed as Exhibit 4.2 to the Company's Form 6-K filed on May 28, 2015.
|
(7) |
Filed as Exhibit 4.1 to the Company's Form 8-A12B/A filed on January 15, 2016.
|
(8) |
Filed as an Exhibit to the Company's Registration Statement (File No. 123052) on March 1, 2005.
|
(9) |
Filed as an Exhibit to the Company's Amended Registration Statement (File No. 123052) on March 15, 2005.
|
(10) |
Filed as an Exhibit to the Company's Annual Report filed on Form 20-F on March 30, 2010.
|
(11) |
Filed as an Exhibit to the Company's Annual Report filed on Form 20-F on March 27, 2014.
|
(12) |
Filed as an Exhibit to the Company's Annual Report filed on Form 20-F on March 25, 2015.
|
(13) |
Filed as an Exhibit to the Company's Annual Report filed on Form 20-F on March 28, 2016.
|
(14) |
Filed as an Exhibit to the Company's Annual Report filed on Form 20-F on April 20, 2012.
|
Page
|
||
Report of Independent Registered Public Accounting Firm
|
F-2
|
|
Report of Independent Registered Public Accounting Firm
|
F-3
|
|
Consolidated Balance Sheets as of December 31, 2017 and 2016
|
F-4
|
|
Consolidated Statements of Operations for the years ended December 31, 2017, 2016 and 2015
|
F-5
|
|
Consolidated Statements of Comprehensive Loss for the years ended December 31, 2017, 2016 and 2015
|
F-5
|
|
Consolidated Statements of Stockholders' Equity for the years ended December 31, 2017, 2016 and 2015
|
F-6
|
|
Consolidated Statements of Cash Flows for the years ended December 31, 2017, 2016 and 2015
|
F-7
|
|
Notes to Consolidated Financial Statements
|
F-8
|
|
DIANA SHIPPING INC.
|
||||||||||||
CONSOLIDATED STATEMENTS OF OPERATIONS
|
||||||||||||
For the years ended December 31, 2017, 2016 and 2015
|
||||||||||||
(Expressed in thousands of U.S. Dollars – except for share and per share data)
|
||||||||||||
2017
|
2016
|
2015
|
||||||||||
REVENUES:
|
||||||||||||
Time charter revenues
|
$
|
161,897
|
$
|
114,259
|
$
|
157,712
|
||||||
EXPENSES:
|
||||||||||||
Voyage expenses
|
8,617
|
13,826
|
15,528
|
|||||||||
Vessel operating expenses
|
90,358
|
85,955
|
88,272
|
|||||||||
Depreciation and amortization of deferred charges (Notes 2(l) and 2(m))
|
87,003
|
81,578
|
76,333
|
|||||||||
General and administrative expenses
|
26,332
|
25,510
|
25,335
|
|||||||||
Management fees to related party (Notes 3(b) and 4(d))
|
1,883
|
1,464
|
405
|
|||||||||
Impairment loss (Note 5)
|
442,274
|
-
|
-
|
|||||||||
Insurance recoveries, net of other loss (Note 5)
|
(10,879
|
)
|
-
|
-
|
||||||||
Gain on contract termination
|
-
|
(5,500
|
)
|
-
|
||||||||
Other loss/(income)
|
296
|
(253
|
)
|
(984
|
)
|
|||||||
Operating loss
|
$
|
(483,987
|
)
|
$
|
(88,321
|
)
|
$
|
(47,177
|
)
|
|||
OTHER INCOME / (EXPENSES):
|
||||||||||||
Interest and finance costs (Note 10)
|
(26,628
|
)
|
(21,949
|
)
|
(15,555
|
)
|
||||||
Interest and other income (Note 4(b))
|
4,508
|
2,410
|
3,152
|
|||||||||
Loss from equity method investments (Note 3)
|
(5,607
|
)
|
(56,377
|
)
|
(5,133
|
)
|
||||||
Total other expenses, net
|
$
|
(27,727
|
)
|
$
|
(75,916
|
)
|
$
|
(17,536
|
)
|
|||
Net loss
|
$
|
(511,714
|
)
|
$
|
(164,237
|
)
|
$
|
(64,713
|
)
|
|||
Dividends on series B preferred shares (Notes 9(a) and 11)
|
(5,769
|
)
|
(5,769
|
)
|
(5,769
|
)
|
||||||
Net loss attributed to common stockholders
|
$
|
(517,483
|
)
|
$
|
(170,006
|
)
|
$
|
(70,482
|
)
|
|||
Loss per common share, basic and diluted
(Note 11)
|
$
|
(5.41
|
)
|
$
|
(2.11
|
)
|
$
|
(0.89
|
)
|
|||
Weighted average number of common shares, basic and diluted
(Note 11)
|
95,731,093
|
80,441,517
|
79,518,009
|
1. |
Basis of Presentation and General Information
|
Charterer
|
2017
|
2016
|
2015
|
|||||||||
A |
17
|
%
|
||||||||||
B |
14
|
%
|
15
|
%
|
||||||||
C
|
12
|
%
|
10
|
%
|
||||||||
D |
19
|
%
|
24
|
%
|
||||||||
E |
10
|
%
|
20
|
%
|
||||||||
F |
12
|
%
|
||||||||||
G
|
10
|
%
|
2. |
Significant Accounting Policies
|
(a) |
Principles of Consolidation
: The accompanying consolidated financial statements have been prepared in accordance with U.S. generally accepted accounting principles, and include the accounts of Diana Shipping Inc. and its wholly-owned subsidiaries. All intercompany balances and transactions have been eliminated upon consolidation. Under Accounting Standards Codification ("ASC") 810 "Consolidation", the Company consolidates entities in which it has a controlling financial interest, by first considering if an entity meets the definition of a variable interest entity ("VIE") for which the Company is deemed to be the primary beneficiary under the VIE model, or if the Company controls an entity through a majority of voting interest based on the voting interest model. The Company evaluates financial instruments, service contracts, and other arrangements to determine if any variable interests relating to an entity exist. For entities in which the Company has a variable interest, the Company determines if the entity is a VIE by considering whether the entity's equity investment at risk is sufficient to finance its activities without additional subordinated financial support and whether the entity's at-risk equity holders have the characteristics of a controlling financial interest. In performing the analysis of whether the Company is the primary beneficiary of a VIE, the Company considers whether it individually has the power to direct the activities of the VIE that most significantly affect the entity's performance and also has the obligation to absorb losses or the right to receive benefits of the VIE that could potentially be significant to the VIE. The Company reconsiders the initial determination of whether an entity is a VIE if certain types of events ("reconsideration events") occur. If the Company holds a variable interest in an entity that previously was not a VIE, it reconsiders whether the entity has become a VIE. The Company has identified that it has variable interests in Diana Containerships Inc. and Diana Wilhelmsen Management Limited. The Company assessed reconsideration events and concluded that Diana Containerships Inc. is a VIE, however the Company is not the primary beneficiary (Notes 3(a) and 4(b)).
|
(b) |
Use of Estimates:
The preparation of consolidated financial statements in conformity with U.S. generally accepted accounting principles 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 consolidated 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 separately presents certain transactions, which are recorded directly as components of stockholders' equity. Other Comprehensive Income / (Loss) is presented in a separate statement.
|
(d) |
Foreign Currency Translation:
The functional currency of the Company is the U.S. dollar because the Company's vessels operate in international shipping markets, and therefore primarily transact business in U.S. dollars. The Company's accounting records are maintained in U.S. dollars. Transactions involving other currencies during the year are converted into U.S. dollars using the exchange rates in effect at the time of the transactions. At the balance sheet dates, monetary assets and liabilities which are denominated in other currencies are translated into U.S. dollars at the year-end exchange rates. Resulting gains or losses are reflected separately in the accompanying consolidated statements of operations.
|
(e) |
Cash and Cash Equivalents and Restricted Cash:
The Company considers highly liquid investments such as time deposits, certificates of deposit and their equivalents with an original maturity of three months or less to be cash equivalents. Restricted cash consists mainly of cash deposits required to be maintained at all times under the Company's loan facilities (Note 7). As of December 31, 2017, restricted cash also included $582 of cash guarantee which was restricted to withdrawal or usage.
|
(f) |
Accounts Receivable, Trade:
The amount shown as accounts receivable, trade, at each balance sheet date, includes receivables from charterers for hire, ballast bonus billings, if any, hold cleanings and extra voyage insurance, net of any provision 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 provision for doubtful accounts was established as of December 31, 2017 and 2016.
|
(g) |
Loan Receivable from Related Party
: The amounts shown as Due from related parties, current and non-current, in the consolidated balance sheet as at December 31, 2017 and 2016, represent amounts receivable from Diana Containerships Inc., or Diana Containerships, with respect to a loan agreement, net of any provision for credit losses and does not include the $5,000 discount premium due on the termination date of the loan (Note 4(b)). Interest income and fees, deriving from the agreement are recorded in the accounts as incurred. At each balance sheet date, amounts due under the aforementioned loan agreement are assessed for purposes of determining the appropriate provision for credit losses. As at December 31, 2017 and 2016, the Company assessed the ability of Diana Containerships to meet its obligations under the loan agreement by taking into consideration existing economic conditions, the current financial condition of Diana Containerships, equity offerings, sale plans, historical losses, and other risks/factors that may affect Diana Containerships' future financial condition and its ability to meet its obligations. As a result of this assessment, the Company did not record any provision for credit losses, as it determined that Diana Containerships will be able to meet its obligations under the loan in the near future.
|
(h) |
Inventories:
Inventories consist of lubricants and victualling which are stated at the lower of cost or net realizable value. Net realizable value is the estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. When evidence exists that the net realizable value of inventory is lower than its cost, the difference is recognized as a loss in earnings in the period in which it occurs. Cost is determined by the first in, first out method. Inventories may also consist of bunkers when on the balance sheet date a vessel remains idle. Bunkers, if any, are also stated at the lower of cost or net realizable value and cost is determined by the first in, first out method.
|
(i) |
Vessel Cost:
Vessels are stated at cost which consists of the contract price and any material expenses incurred upon acquisition or during construction. 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; otherwise these amounts are charged to expense as incurred. Interest cost incurred during the assets' construction periods that theoretically could have been avoided if expenditure for the assets had not been made is also capitalized. The capitalization rate, applied on accumulated expenditures for the vessel, is based on interest rates applicable to outstanding borrowings of the period.
|
(j) |
Property and equipment:
The Company owns the land and building where its offices are located. Land is presented in its fair value on the date of acquisition and it is not subject to depreciation. The building has an estimated useful life of 55 years with no residual value. Depreciation is calculated on a straight-line basis. Equipment consists of office furniture and equipment, computer software and hardware and vehicles which consist of motor scooters and a car. The useful life of the car is 10 years, of the office furniture, equipment and the scooters is 5 years; and of the computer software and hardware is 3 years. Depreciation is calculated on a straight-line basis.
|
(k) |
Impairment of Long-Lived Assets:
Long-lived assets (vessels, land, and building) and certain identifiable intangibles held and used by an entity are reviewed for impairment whenever events or changes in circumstances (such as market conditions, obsolesce or damage to the asset, potential sales and other business plans) indicate that the carrying amount of the assets may not be recoverable. When the estimate of undiscounted projected net operating cash flows, excluding interest charges, expected to be generated by the use of the asset over its remaining useful life and its eventual disposition is less than its carrying amount, the Company should evaluate the asset for an impairment loss. Measurement of the impairment loss is based on the fair value of the asset. The Company determines the fair value of its assets based on management estimates and assumptions and by making use of available market data and taking into consideration third party valuations.
|
(l) |
Vessel Depreciation
: Depreciation is computed using the straight-line method over the estimated useful life of the vessels, after considering the estimated salvage (scrap) 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 the Company's 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. When regulations place limitations over the ability of a vessel to trade on a worldwide basis, its remaining useful life is adjusted at the date such regulations are adopted.
|
(m) |
Accounting for Dry-Docking Costs
: The Company follows the deferral method of accounting for dry-docking costs whereby actual costs incurred are deferred and are amortized on a straight-line basis over the period through the date the next dry-docking is scheduled to become due. Unamortized dry-docking costs of vessels that are sold or impaired are written off and included in the calculation of the resulting gain or loss in the year of the vessel's sale or impairment.
|
(n) |
Financing Costs
: Fees paid to lenders for obtaining new loans or refinancing existing ones are deferred and recorded as a contra to debt. Other fees paid for obtaining loan facilities not used at the balance sheet date are capitalized as deferred financing costs. Fees relating to drawn loan facilities are amortized to interest and finance costs over the life of the related debt using the effective interest method and fees incurred for loan facilities not used at the balance sheet date are amortized using the straight line method according to their availability terms. Unamortized fees relating to loans repaid or refinanced as debt extinguishment are expensed as interest and finance costs in the period the repayment or extinguishment is made. Loan commitment fees are charged to expense in the period incurred, unless they relate to loans obtained to finance vessels under construction, in which case they are capitalized to the vessels' cost.
|
(o) |
Concentration of Credit Risk:
Financial instruments, which potentially subject the Company to significant concentrations of credit risk, consist principally of cash, trade accounts receivable and the loan receivable from a related party. The Company places its temporary cash investments, consisting mostly of deposits, with various qualified financial institutions and performs periodic evaluations of the relative credit standing of those financial institutions that are considered in the Company's investment strategy. 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 accounts receivable and does not have any agreements to mitigate credit risk. The Company limits its credit risk with the loan receivable by performing ongoing credit evaluations of Diana Containerships' financial condition. The loan agreement is guaranteed by second preferred mortgages over the vessels of Diana Containerships' fleet (Note 4(b)). The Company has not entered into any agreement to mitigate credit risk.
|
(p) |
Accounting for Revenues and Expenses:
Revenues are generated from time charter agreements and are usually paid fifteen days in advance. Time charter agreements with the same charterer are accounted for as separate agreements according to the terms and conditions of each agreement. Time charter revenues are recorded over the term of the charter as service is provided. Income representing ballast bonus payments by the charterer to the vessel owner, if any, is recognized in the period earned. Revenues from time charter agreements providing for varying annual rates over their term are accounted for on a straight line basis. Compensation due to earlier redelivery than the minimum period agreed in the charter party is recognized in the period earned. Deferred revenue includes cash received prior to the balance sheet date for which all criteria to recognize as revenue have not been met. Deferred revenue may also include deferred revenue resulting from charter agreements providing for varying annual rates, which are accounted for on a straight line basis, or the unamortized balance of the liability associated with the acquisition of second-hand vessels with time charters attached which were acquired at values below fair market value at the date the acquisition agreement is consummated. Voyage expenses, primarily consisting of commissions, port, canal and bunker expenses that are unique to a particular charter, are paid for by the charterer under time charter arrangements, except for commissions, which are always paid for by the Company, regardless of charter type and gain or loss from the sale of bunkers on delivery to the time charterers. All voyage and vessel operating expenses are expensed as incurred, except for commissions. Commissions are deferred over the related voyage charter period to the extent revenue has been deferred since commissions are due as the Company's revenues are earned.
|
(q) |
Repairs and Maintenance:
All repair and maintenance expenses including underwater inspection expenses are expensed in the year incurred. Such costs are included in vessel operating expenses in the accompanying consolidated statements of operations.
|
(r) |
Earnings / (loss) per Common Share:
Basic earnings / (loss) per common share are computed by dividing net income / (loss) available to common stockholders by the weighted average number of common shares outstanding during the year. Diluted earnings per common share, reflects the potential dilution that could occur if securities or other contracts to issue common stock were exercised.
|
(s) |
Segmental Reporting:
The Company has determined that it operates under one reportable segment, relating to its operations of the dry-bulk vessels. The Company reports financial information and evaluates the operations of the segment by charter revenues and not by the length of ship employment for its customers, i.e. spot or time charters. The Company does not use discrete financial information to evaluate the operating results for each such type of charter. Although revenue can be identified for these types of charters, management cannot and does not identify expenses, profitability or other financial information for these charters. As a result, management, including the chief operating decision maker, reviews operating results solely by revenue per day and operating results of the fleet. 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.
|
(t) |
Fair Value Measurements
: The Company classifies and discloses its assets and liabilities carried at the fair value in one of the following 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.
|
(u) |
Share Based Payments:
The Company issues restricted share awards which are measured at their grant date fair value and are not subsequently re-measured. That cost is recognized over the period during which an employee is required to provide service in exchange for the award—the requisite service period (usually the vesting period). No compensation cost is recognized for equity instruments for which employees do not render the requisite service. Forfeitures of awards are accounted for when and if they occur. If an equity award is modified after the grant date, incremental compensation cost will be recognized in an amount equal to the excess of the fair value of the modified award over the fair value of the original award immediately before the modification.
|
(v) |
Equity method investments:
Investments in common stock in entities over which the Company exercises significant influence, but does not exercise control are accounted for by the equity method of accounting. Under this method, the Company records such an investment at cost and adjusts the carrying amount for its share of the earnings or losses of the entity subsequent to the date of investment and reports the recognized earnings or losses in income. Dividends received, if any, reduce the carrying amount of the investment. When the Company's share of losses in an entity accounted for by the equity method equals or exceeds its interest in the entity, the Company does not recognize further losses, unless the Company has made advances, incurred obligations and made payments on behalf of the entity. The Company also evaluates whether a loss in value of an investment that is other than a temporary decline should be recognized. Evidence of a loss in value might include absence of an ability to recover the carrying amount of the investment or inability of the investee to sustain an earnings capacity that would justify the carrying amount of the investment. The Company assessed the financial condition of Diana Containerships (Note 3(a)), the market conditions that could affect its operations in the near future and historical losses of its investment and as a result the Company recorded impairment in 2017 and 2016, which is included in Loss from equity method investments in the accompanying statements of operations.
|
(w) |
Going concern:
The Company's policy is in accordance with ASU No. 2014-15, "Presentation of Financial Statements - Going Concern", issued in August 2014 by the FASB. ASU 2014-15 provides U.S. GAAP guidance on management's responsibility in evaluating whether there is substantial doubt about a company's ability to continue as a going concern and on related required footnote disclosures. For each reporting period, management evaluates whether there are conditions or events that raise substantial doubt about the Company's ability to continue as a going concern within one year from the date the financial statements are issued.
|
a) |
Diana Containerships Inc., or Diana Containerships:
As at December 31, 2016, DSI owned 25.73% of the common stock of Diana Containerships amounting to $5,815 and included in "Investments in related parties" in the accompanying consolidated balance sheets. As at December 31, 2017, the investment was reduced to zero following the gradual sales during the year of all Diana Containerships' common stock previously owned by the Company.
|
b) |
Diana Wilhelmsen Management Limited, or DWM:
DWM is a joint venture which was established on May 7, 2015 by Diana Ship Management Inc., a wholly owned subsidiary of DSI, and Wilhelmsen Ship Management Holding Limited, an unaffiliated third party, each holding 50% of DWM. As at December 31, 2017, DWM provided management services to ten vessels of the Company's fleet (Note 4(d)). The DWM office is located in Limassol, Cyprus. As at December 31, 2017 and 2016
,
the investment in DWM amounted to $249 and $199, respectively, and is included in "Investments in related parties" in the accompanying consolidated balance sheets. For 2017, 2016, and 2015, the investment in DWM resulted in gain of $49, $88, and loss of $156, respectively, included in "Loss from equity method investments" in the accompanying consolidated statements of operations
.
|
4. | Transactions with Related Parties |
(a) |
Altair Travel Agency S.A. ("Altair"):
The Company uses the services of an affiliated travel agent, Altair, which is controlled by the Company's CEO and Chairman of the Board. Travel expenses for 2017, 2016 and 2015 amounted to $2,096, $2,320, and $2,685, respectively, and are mainly included in "Vessels, net book value", "Advances for vessels under construction and acquisitions and other vessel costs", "Vessel operating expenses" and "General and administrative expenses" in the accompanying consolidated financial statements. At December 31, 2017 and 2016, an amount of $162 and $23, respectively, was payable to Altair and is included in "Due to related parties" in the accompanying consolidated balance sheets.
|
(b) |
Diana Containerships Inc.:
On May 20, 2013, the Company entered into a five year unsecured loan of $50,000 with a subsidiary of Diana Containerships, drawn on August 20, 2013, for general corporate purposes and working capital. The loan, initially bore interest at LIBOR plus a margin of 5% and a back-end fee equal to 1.25% per annum on the outstanding amount of the loan payable by the borrower on the repayment date of the loan. Following an amendment on September 9, 2015, the interest was reduced to LIBOR plus a margin of 3% per annum, the back-end fee which was paid on the date of the amendment was eliminated, and a fixed fee of $200 was to be payable on the maturity date. In addition, the borrower agreed to repay the principal amount of the loan on the last day of each interest period in amounts totalling $5,000 per annum, but not to exceed $32,500 in the aggregate. Following another amendment on August 24, 2016, the repayment of all outstanding principal amounts was deferred until a later date, the borrower was changed to another wholly-owned subsidiary of Diana Containerships and the interest rate of the deferral period increased to 3.35% per annum over LIBOR. On May 30, 2017, as discussed in Note 3(a), the loan was decreased by $3,000, in order to acquire the Series C Preferred Stock issued by Diana Containerships.
|
(c) |
Diana Enterprises Inc. renamed to Steamship Shipbroking Enterprises Inc., or Steamship:
Steamship is a company controlled by the Company's CEO and Chairman of the Board which provides brokerage services to DSI pursuant to a Brokerage Services Agreement for a fixed fee amended annually on each anniversary of the agreement. For 2017, 2016 and 2015, brokerage fees amounted to $1,800, $1,680, and $1,302, respectively, and are included in "General and administrative expenses" in the accompanying consolidated statements of operations. As of December 31, 2017 and 2016, there was no amount due to Steamship included in the accompanying consolidated balance sheets.
|
(d) |
Diana Wilhelmsen Management Limited:
As of December 31, 2017, DWM provided management services to ten vessels of the Company's fleet for a fixed monthly fee and commercial services charged as a percentage of the vessels' gross revenues. Management fees for 2017, 2016 and 2015 amounted to $1,883, $1,464, and $405, respectively, and are separately presented as "Management fees to related party" in the accompanying consolidated statements of operations, whereas commercial fees amounted to $260, $124, and $43, respectively, and are included in "Voyage expenses" in the accompanying consolidated statements of operations. As at December 31, 2017 and 2016 there was an amount of $109 and $2, respectively, due to DWM, included in "Due to related parties" in the accompanying consolidated balance sheets.
|
(e) |
Vessel Acquisitions:
On February 4, 2016, the Company, through three separate wholly-owned subsidiaries, entered into three Memoranda of Agreement to acquire from a related party three Panamax vessels for an aggregate purchase price of $39,265. The Company had agreed to acquire the vessels from entities affiliated with Mrs. Semiramis Paliou and Mrs. Aliki Paliou, each of whom is a family member of the Company's Chief Executive Officer and Chairman of the Board. Mrs. Semiramis Paliou is also a director of the Company. The transaction was approved unanimously by a committee of the Board of Directors established for the purpose of considering the transaction and consisting of the Company's independent directors and each of its executive directors other than Mrs. Semiramis Paliou and Mr. Simeon Palios. The agreed upon purchase price of the vessels was based, among other factors, on independent third party broker valuations obtained by the Company. Two of the vessels were delivered in March 2016 and the third was delivered in May 2016 (Note 5).
|
5. |
Vessels, net book value
|
Vessel Cost
|
Accumulated Depreciation
|
Net Book Value
|
||||||||||
|
||||||||||||
Balance, December 31, 2015
|
$
|
1,947,992
|
$
|
(507,189
|
)
|
$
|
1,440,803
|
|||||
|
||||||||||||
- Acquisitions, improvements and other vessel costs
|
39,427
|
-
|
39,427
|
|||||||||
- Depreciation for the year
|
-
|
(76,318
|
)
|
(76,318
|
)
|
|||||||
Balance, December 31, 2016
|
$
|
1,987,419
|
$
|
(583,507
|
)
|
$
|
1,403,912
|
|||||
|
||||||||||||
- Transfer from advances for vessels under construction and acquisition and other vessel costs
|
104,858
|
-
|
104,858
|
|||||||||
- Acquisitions, improvements and other vessel costs
|
67,787
|
-
|
67,787
|
|||||||||
- Vessel disposal
|
(15,349
|
)
|
12,834
|
(2,515
|
)
|
|||||||
- Impairment charges
|
(877,484
|
)
|
438,573
|
(438,911
|
)
|
|||||||
- Depreciation for the year
|
-
|
(81,553
|
)
|
(81,553
|
)
|
|||||||
Balance, December 31, 2017
|
$
|
1,267,231
|
$
|
(213,653
|
)
|
$
|
1,053,578
|
6. |
Property and equipment, net
|
Property and Equipment
|
Accumulated Depreciation
|
Net Book Value
|
||||||||||
|
||||||||||||
Balance, December 31, 2015
|
$
|
26,365
|
$
|
(2,876
|
)
|
$
|
23,489
|
|||||
|
||||||||||||
- Additions in property and equipment
|
217
|
-
|
217
|
|||||||||
- Depreciation for the year
|
-
|
(592
|
)
|
(592
|
)
|
|||||||
Balance, December 31, 2016
|
$
|
26,582
|
$
|
(3,468
|
)
|
$
|
23,114
|
|||||
|
||||||||||||
- Additions in property and equipment
|
104
|
-
|
104
|
|||||||||
- Depreciation for the year
|
-
|
(568
|
)
|
(568
|
)
|
|||||||
- Disposal of assets
|
(3
|
)
|
3
|
-
|
||||||||
Balance, December 31, 2017
|
$
|
26,683
|
$
|
(4,033
|
)
|
$
|
22,650
|
2017
|
2016
|
|||||||
8.5% Senior Unsecured Notes
|
63,250
|
63,250
|
||||||
Secured Term Loans
|
541,543
|
539,467
|
||||||
Total debt outstanding
|
$
|
604,793
|
$
|
602,717
|
||||
Less related deferred financing costs
|
(3,409
|
)
|
(4,536
|
)
|
||||
Total debt, net of deferred financing costs
|
$
|
601,384
|
$
|
598,181
|
||||
Less: Current portion of long term debt, net of deferred financing costs current
|
(60,763
|
)
|
(65,072
|
)
|
||||
Long-term debt, net of current portion and deferred financing costs, non-current
|
$
|
540,621
|
$
|
533,109
|
Period
|
Principal Repayment
|
|||
January 1, 2018 to December 31, 2018
|
$
|
62,059
|
||
January 1, 2019 to December 31, 2019
|
119,342
|
|||
January 1, 2020 to December 31, 2020
|
183,132
|
|||
January 1, 2021 to December 31, 2021
|
132,494
|
|||
January 1, 2022 to December 31, 2022
|
72,468
|
|||
January 1, 2023 and thereafter
|
35,298
|
|||
Total
|
$
|
604,793
|
8. |
Commitments and Contingencies
|
a) |
Various claims, suits, and complaints, including those involving government regulations and product liability, arise in the ordinary course of the shipping business. In addition, losses may arise from disputes with charterers, agents, insurance and other claims with suppliers relating to the operations of the Company's vessels. The Company accrues for the cost of environmental and other liabilities when management becomes aware that a liability is probable and is able to reasonably estimate the probable exposure.
|
b) |
Pursuant to the loan agreement with Diana Containerships Inc. dated June 30, 2017 (Note 4(b)), Diana Containerships is required to pay, on the termination date of the loan, an additional $5,000 interest-bearing discount premium, which is not included in Due from related parties in the accompanying 2017 balance sheet.
|
c) |
As at December 31, 2017, all of the Company's vessels were fixed under time charter agreements. The minimum contractual gross charter revenue expected to be generated from fixed and non-cancelable time charter contracts existing as at December 31, 2017 and until their expiration was as follows:
|
Period
|
Amount
|
|||
Year 1
|
$
|
95,851
|
||
Year 2
|
10,129
|
|||
Total
|
$
|
105,980
|
9. |
Capital Stock and Changes in Capital Accounts
|
(a) |
Preferred stock
:
As at December 31, 2017 and 2016, the Company's authorized preferred stock consists of 25,000,000 shares (all in registered form) of preferred stock, par value $0.01 per share, of which 1,000,000 are designated as Series A Participating Preferred Shares and 5,000,000 are designated as Series B Preferred Shares.
|
(b) |
Common Stock:
The Company's authorized capital stock consists of 200,000,000 shares (all in registered form) of common stock, par value $0.01 per share. The holders of the common shares are entitled to one vote on all matters submitted to a vote of stockholders and to receive all dividends, if any.
|
(c) |
Offering of common shares:
On April 26, 2017, the Company issued a total 20,125,000 common shares, at a price of $4.00 per share, in a public offering. As part of the offering, entities affiliated with Simeon Palios, the Company's Chief Executive Officer and Chairman, executive officers and certain directors, purchased an aggregate of 5,500,000 common shares at the public offering price. The net proceeds from the offering after underwriting discounts and other offering expenses were $77,311.
|
(d) |
Incentive plan
: In November 2014, the Company's board of directors approved to adopt the 2014 Equity Incentive Plan, for 5,000,000 shares, of which as at December 31, 2017, 2,924,759 remained reserved for issuance.
|
Number of Shares
|
Weighted Average Grant Date Price
|
|||||||
Outstanding at December 31, 2014
|
2,491,834
|
$
|
9.30
|
|||||
Granted
|
1,100,000
|
6.91
|
||||||
Vested
|
(827,522
|
)
|
9.57
|
|||||
Outstanding at December 31, 2015
|
2,764,312
|
$
|
8.27
|
|||||
Granted
|
2,150,000
|
2.26
|
||||||
Vested
|
(971,646
|
)
|
8.67
|
|||||
Outstanding at December 31, 2016
|
3,942,666
|
$
|
4.89
|
|||||
Granted
|
1,310,000
|
3.95
|
||||||
Vested
|
(1,611,549
|
)
|
5.46
|
|||||
Outstanding at December 31, 2017
|
3,641,117
|
$
|
4.30
|
(e) |
Share Repurchase Agreement:
On May 22, 2014, the Company's Board of Directors authorized a share repurchase plan for up to $100,000 worth of shares of the Company's common stock. During 2015, the Company repurchased and retired 413,804 shares at an aggregate cost of approximately $2,673 and none during 2016 and 2017.
|
10. |
Interest and Finance Costs
|
2017
|
2016
|
2015
|
||||||||||
Interest expense
|
$
|
24,978
|
$
|
19,523
|
$
|
13,922
|
||||||
Amortization of financing costs
|
1,455
|
1,503
|
1,364
|
|||||||||
Commitment fees and other costs
|
195
|
923
|
269
|
|||||||||
Total
|
$
|
26,628
|
$
|
21,949
|
$
|
15,555
|
11. |
Loss per Share
|
2017
|
2016
|
2015
|
||||||||||
Net loss
|
$
|
(511,714
|
)
|
$
|
(164,237
|
)
|
$
|
(64,713
|
)
|
|||
Less dividends on series B preferred shares
|
$
|
(5,769
|
)
|
$
|
(5,769
|
)
|
$
|
(5,769
|
)
|
|||
Net loss attributed to common stockholders
|
(517,483
|
)
|
(170,006
|
)
|
(70,482
|
)
|
||||||
Weighted average number of common shares, basic and diluted
|
95,731,093
|
80,441,517
|
79,518,009
|
|||||||||
Loss per share, basic and diluted
|
$
|
(5.41
|
)
|
$
|
(2.11
|
)
|
$
|
(0.89
|
)
|
12. |
Income Taxes
|
13. |
Financial Instruments and Fair Value Disclosures
|
14. |
Subsequent Events
|
a) |
Series B Preferred Stock Dividends:
On January 16, 2018, the Company paid a dividend on its series B preferred stock, amounting to $0.5546875 per share, or $1,442, to its stockholders of record as of January 12, 2018
.
|
b) |
Annual Incentive Bonus
: On February 21, 2018 the Company's Board of Directors approved the grant of 1,800,000 shares of restricted common stock awards to executive management and non-executive directors, pursuant to the Company's 2014 equity incentive plan. The fair value of the restricted shares based on the closing price on the date of the Board of Directors' approval was about $6,876 and will be recognized in income ratably over the restricted shares vesting period which will be 3 years.
|
c) |
Loan Prepayment
: On March 12, 2018 the Company received an amount of $8,379 as partial prepayment under the loan with Diana Containerships, decreasing the loan receivable to $74,238 (Note 4(b)).
|
DIANA SHIPPING INC.
|
||
/s/ Simeon Palios
|
||
By: Simeon Palios
|
||
Title: Director, Chief Executive Officer and Chairman of the Board
|
||
STEAMSHIP SHIPBROKING ENTERPRISES INC.
|
||
/s/
Andreas Nikolaos Michalopoulos
|
||
By:
Andreas Nikolaos Michalopoulos
|
||
Title: Director and Secretary
|
||
(1) |
DIANA SHIPPING INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the "
Lender
"), as lender;
|
(2) |
KAPA SHIPPING COMPANY INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 and any wholly-owned subsidiary of the Guarantor that becomes an Additional Borrower pursuant to Section 12 hereof (each a "
Borrower
", collectively the "Borrowers"), as borrowers; and
|
(3) |
DIANA CONTAINERSHIPS INC., a corporation incorporated under the laws of The Republic of the Marshall Islands whose registered office is at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the "
Guarantor
"), as guarantor.
|
(A) |
(G) |
Confirmation of Agreement
. Except as expressly set forth herein, the Agreement is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms, and each reference in the Agreement to "this Agreement" shall mean the Agreement as amended by this Amendment.
|
(H) |
Counterparts; Effectiveness
. This Amendment may be executed in any number of counterparts (including by facsimile) and by different parties hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument. This Amendment shall become effective when each party hereto shall have received counterparts hereof signed by all of the other parties hereto.
|
(I) |
Governing Law
. The laws of the State of New York shall govern the enforceability and validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties, without regard to the principles of conflicts of laws thereof.
|
BORROWER
|
||
SIGNED
by
|
)
|
|
Anastasios Margaronis
|
) /s/ Anastasios Margaronis
|
|
for and on behalf of
|
)
|
|
Kapa Shipping Company Inc.
|
)
|
|
in the presence of: Christina Symeonidou
|
) /s/ Christina Symeonidou
|
|
GUARANTOR
|
||
SIGNED
by
|
)
|
|
Anastasios Margaronis
|
) /s/ Anastasios Margaronis
|
|
for and on behalf of
|
)
|
|
Diana Containerships Inc.
|
)
|
|
in the presence of: Christina Symeonidou
|
) /s/ Christina Symeonidou
|
|
LENDER
|
||
SIGNED
by
|
)
|
|
Ioannis Zafirakis
|
) /s/ Ioannis Zafirakis
|
|
for and on behalf of
|
)
|
|
Diana Shipping Inc.
|
)
|
|
in the presence of: Christina Symeonidou
|
) /s/ Christina Symeonidou
|
Exhibit 4.30
|
|||
Dated 30 June 2017
|
|||
Borrower
DIANA CONTAINERSHIPS INC.
Owners
As specified in SCHEDULE 4
Senior Mortgagee
ADDIEWELL LTD
Subordinated Mortgagee
DIANA SHIPPING INC.
|
|||
INTERCREDITOR AGREEMENT
relating to security for a Term Loan Facility of $35,000,000 and a Discount Premium Amount of $10,000,000 secured, inter alia, on the Ships as specified in Schedule 4.
|
Clause
|
Page
|
1
|
Purpose and definitions
|
1
|
2
|
Agreement to Subordinated Security Documents
|
4
|
3
|
Subordinated Mortgagee's undertakings
|
4
|
4
|
Owner's undertaking
|
9
|
5
|
Attorney
|
9
|
6
|
Senior Mortgagee's undertakings
|
9
|
7
|
Adjustment of priorities
|
11
|
8
|
Effect of this Agreement
|
12
|
9
|
Representations
|
13
|
10
|
Costs and expenses
|
13
|
11
|
Notices
|
14
|
12
|
Counterparts
|
15
|
13
|
Partial invalidity
|
15
|
14
|
Remedies and waivers
|
15
|
15
|
Effect as deed
|
15
|
16
|
Governing law
|
15
|
17
|
Enforcement
|
15
|
Schedule 1 Parties and Facility Agreement
|
17
|
|
Schedule 2 Senior Security Documents
|
19
|
|
Schedule 3 Subordinated Security Documents
|
20
|
|
Schedule 4 Owners and Ships
|
21
|
(1) |
DIANA CONTAINERSHIPS INC.
(the
"Borrower"
);
|
(2) |
the entities listed in Schedule 4 (together the
"Owners")
;
|
(3) |
ADDIEWELL LTD
(the "
Senior Mortgagee"
) acting in its capacity as agent and as trustee for the Senior Finance Parties; and
|
(4) |
DIANA SHIPPING INC.
(the
"Subordinated Mortgagee"
) acting in its capacity as lender and as agent and as trustee for the Subordinated Finance Parties,
|
1 |
Purpose and definitions
|
1.1 |
Purpose
|
1.2 |
Definitions
|
(a) |
any resolution is passed or order made for the winding up, dissolution, administration or reorganisation of that Obligor, a moratorium is declared in relation to any indebtedness of that Obligor or an administrator is appointed to that Obligor;
|
(b) |
any composition, compromise, assignment or arrangement is made with any of its creditors;
|
(c) |
the appointment of any liquidator, receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of that Obligor or any of its assets; or
|
(d) |
any filing by an Obligor with any Court or public body seeking, or the effect of which is, protection of such Obligor from the claims of its creditors;
|
(e) |
any analogous procedure or step is taken in any jurisdiction.
|
(a) |
its jurisdiction of incorporation;
|
(b) |
any jurisdiction where any Charged Property owned by it is situated;
|
(c) |
(except in the case of a Mortgagee) any jurisdiction where it conducts its business; and
|
(d) |
any jurisdiction whose laws govern the perfection of any security created by it under the Security Documents.
|
1.3 |
Construction
|
(a) |
Unless a contrary indication appears, any reference in this Agreement to:
|
(i) |
clauses and the Schedules are to be construed as references to the clauses of, and the Schedules to, this Agreement and references to this Agreement include its Schedules;
|
(ii) |
any agreement or instrument is a reference to that agreement or instrument as it may from time to time be amended, restated, novated 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) |
agreed form
of a document means the form of a document separately approved in writing by the Senior Mortgagee;
|
(vi) |
assets
includes present and future properties, revenues and rights of every description;
|
(vii) |
an
authorisation
means any authorisation, consent, concession, approval, resolution, licence, exemption, filing, notarisation or registration;
|
(viii) |
dollar
/
$
means the lawful currency of the United States of America;
|
(ix) |
indebtedness
includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
(x) |
an
obligation
means any duty, obligation or liability of any kind;
|
(xi) |
a
person
includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
|
(xii) |
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 or in admiralty;
|
(xiii) |
security
means a mortgage, charge, pledge, lien, assignment, trust, hypothecation or other security interest of any kind securing any obligation of any person or any other agreement or arrangement having a similar effect; and
|
(xiv) |
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) |
Clause and Schedule headings are for ease of reference only.
|
1.4 |
Third party rights
|
2 |
Agreement to Subordinated Security Documents
|
(a) |
the advance by the Subordinated Mortgagee of the Subordinated Loans and the incurrence of the Subordinated Discount Premium Amount;
|
(b) |
the execution of the Subordinated Security Documents in favour of the Subordinated Mortgagee; and
|
(c) |
the registration of any Subordinated Security Document with the applicable ship registry.
|
3 |
Subordinated Mortgagee's undertakings
|
3.1 |
Payments Permitted to Subordinated Mortgagee
|
(a) |
The Borrower, the Owner and the Subordinated Mortgagee agree with the Senior Mortgagee that during the Initial Permitted Payments Period, the Subordinated Mortgagee may receive and accept payment of interest on the Subordinated Loans and the Subordinated Discount Premium Amount payable at the times and in the amounts provided in the Subordinated Finance Documents provided that (i) the Borrower has freely available cash to do so without diminishing the necessary working capital for the secure trading of the Ships, and (ii) no such payment is made out of Proceeds or Refinancing Proceeds.
|
(b) |
In addition during the Initial Permitted Payment Period and at any time after the repayment in full of the Senior Loan, the Subordinated Mortgagee may receive and accept payment of principal of Subordinated Loan up to the first $40 million out of the Proceeds or derived from any other source permitted under the Senior Facility Agreement.
|
(c) |
In the case of Refinancing Proceeds, such amounts may be applied in payment of Subordinated Liabilities only after payment in full of the Senior Loan and the Discount Premium Amount.
|
(d) |
No part of Subordinated Loan (beyond the first $40 million of the principal pursuant to clause (b) above or Subordinated Discount Premium Amount may be repaid or prepaid at any time prior to the payment in full to the Senior Mortgagee of the Discount Premium Amount.
|
(e) |
If during the Initial Permitted Payment Period the Senior Loan has been paid in full and the Discount Premium Amount has been paid in full there shall be no further restrictions on payments to the Subordinated Mortgagee.
|
3.2 |
Subordination of the Subordinated Security Documents
|
(a) |
Following repayment of the Senior Loan in full (together with all accrued interest and costs) and after the expiry or termination of the Initial Permitted Payment Period, the Senior Mortgagee agrees that any monies thereafter available to the Senior Mortgagee or the Subordinated Mortgagee for application against the Senior Indebtedness and/or the Subordinated Indebtedness (other than Refinancing Proceeds which shall be the subject to clause 3.1(c) before and after the expiry of the Initial Permitted Payments Period) shall be shared equally (50/50 basis) between the Discount Premium Amount and the Subordinated Loan until such time as the Discount Premium Amount (together with all accrued interest and costs) has been repaid in full.
|
(b) |
Save as provided in clause 3.1 and clause 3.2(a), the security created by the Subordinated Security Documents in relation to the Charged Property shall be in all respects subordinate to, and rank in priority subsequent to, the security created by the Senior Security Documents.
|
3.3 |
Limitations on enforcement; deferral undertakings
|
(a) |
Subject to clause 3.1 (
Payments Permitted to Subordinated Mortgagee
), clause 3.2(a) and clause 3.4
(
Permitted
protective enforcement)
, take any action to enforce any claim or seek to exercise any rights which the Subordinated Mortgagee has against any Obligor and/or the Charged Property or any part of it under the Subordinated Security Documents (unless and to the extent that the Senior Mortgagee has taken action to enforce its rights under the Senior Security Documents against that Obligor and/or the Charged Property or relevant part of it and continues to do so); or
|
(b) |
directly or indirectly:
|
(i) |
take, accept or receive from any Obligor or permit to exist any Security Interest created by any Obligor (other than as constituted by the Subordinated Security Documents or otherwise described in the Subordinated Facility Agreement on the date of this Agreement) to secure the payment and/or repayment of any of the Subordinated Indebtedness;
|
(ii) |
take, accept or receive any Distribution from the Owner or any other Obligor or any other person liable for any of the Senior Indebtedness;
|
(iii) |
(save only to the extent it may be required to do so under any applicable law) set-off any Subordinated Indebtedness against any obligations or liabilities of any kind, future or present, owing or payable by the Subordinated Mortgagee to any Obligor; or
|
(iv) |
subject to clause 3.4
(Permitted protective enforcement),
commence any proceedings against the Owner or any other Obligor or take any action, for or in respect of the recovery of any of the Subordinated Indebtedness or any part thereof (including, without limitation, any action or step in connection with liquidation, administration, winding-up proceedings or any voluntary arrangement or assignment for the benefit of the Subordinated Mortgagee or any similar proceedings involving the Owner, any other Obligor or the Charged Property or any part thereof).
|
3.4 |
Permitted protective enforcement
|
(a) |
Notwithstanding clause 3.3
(Limitations on enforcement; deferral undertakings)
, the Subordinated Mortgagee may join or intervene in or otherwise support any proceedings brought by any other person arising from or relating to the arrest or detention of a Ship (whether at the instance of the Senior Mortgagee or any other person other than the Subordinated Mortgagee) with a view to substantiating, preserving or protecting its interest in such Ship.
|
(b) |
If the Subordinated Mortgagee takes such action, it will:
|
(i) |
promptly notify the Senior Mortgagee of the action taken; and
|
(ii) |
when required by the Senior Mortgagee to do so, withdraw from such proceedings or take whatever other action may be necessary on its part to release such Ship from such arrest or detention where the Senior Mortgagee and any other interested party also withdraw from such proceedings or take the necessary action on their part to release such Ship.
|
3.5 |
Prejudicial arrangements
|
3.6 |
Notices of assignment
|
3.7 |
Loss payable clauses and letters of undertaking
|
3.8 |
Filings
|
3.9 |
Notice of enforceability
|
3.10 |
Deemed consents
|
(a) |
something requires the consent or approval of the Subordinated Mortgagee under the Subordinated Finance Documents; and
|
(b) |
the same thing requires the consent or approval of the Senior Mortgagee and/or any other Senior Finance Party under the Senior Finance Documents,
|
3.11 |
Release of security on sale
|
(a) |
take all such steps as may be necessary to consent to, ratify and confirm, such sale;
|
(b) |
co-operate with the Senior Mortgagee for the purpose of carrying out such sale; and
|
(c) |
as soon as practicable but not later than two (2) Business Days upon being requested by the Senior Mortgagee to do so, execute any discharges and/or reassignments and/or notices of discharge and/or notices of reassignment as may be necessary to allow the sale to take place free of any security created by the Subordinated Security Documents.
|
3.12 |
Assignments by Subordinated Mortgagee
|
3.13 |
Variations to Subordinated Security Documents
|
3.14 |
Freedom to enforce Senior Security Documents
|
3.15 |
Freedom to vary Senior Finance Documents
|
(a) |
the Senior Mortgagee and/or any other Senior Finance Party may, whenever it wishes and without prior consultation with the Subordinated Mortgagee, agree with any Obligor to vary any of the Senior Finance Documents;
|
(b) |
documents implementing or recording such a variation will for the purposes of this Agreement be considered to be an integral part of the Senior Security Documents and to rank in priority to the relevant Subordinated Security Documents; and
|
(c) |
the Subordinated Mortgagee will promptly enter into such documents as the Senior Mortgagee may require to maintain or confer such priority.
|
3.16 |
Subordination
|
(a) |
the claims of the Subordinated Mortgagee against such Obligor in respect of the Subordinated Indebtedness shall be postponed in all respects to the Senior Indebtedness;
|
(b) |
the Subordinated Mortgagee shall not, unless otherwise directed by the Senior Mortgagee, prove for the Subordinated Indebtedness against such Obligor until the Senior Indebtedness
|
has first been paid or discharged in full (and for all purposes any Distribution received by the Senior Mortgagee or the other Senior Finance Parties shall only be taken to discharge the Senior Indebtedness to the extent of the actual amount received); and
|
(c) |
if the Subordinated Mortgagee is directed by the Senior Mortgagee to prove for the Subordinated Indebtedness then it shall act in accordance with such directions and shall procure that any resultant payments shall be made by the liquidator of such Obligor, or any other person making any Distribution, to the Senior Mortgagee and the other Senior Finance Parties to the extent necessary to repay all the Senior Indebtedness in full.
|
4 |
Owner's undertaking
|
(a) |
acknowledges that it has requested the Senior Mortgagee to enter into this Agreement;
|
(b) |
accordingly consents to this Agreement and its implementation;
|
(c) |
undertakes to the Senior Mortgagee to do anything and execute any documents which the Senior Mortgagee may at any time reasonably require to implement the terms of this Agreement; and
|
(d) |
agrees not to make or permit to be made any payment to the Subordinated Mortgagee or the granting of any security interest in breach of the terms of this Agreement.
|
5 |
Attorney
|
5.1 |
Grant of power
|
5.2 |
Exercise of power
|
6 |
Senior Mortgagee's undertakings
|
6.1 |
Limitation on principal
|
(a) |
an amount not exceeding the Senior Facility Limit in respect of the principal amount from time to time secured by the Senior Security Documents; and
|
(b) |
other moneys (including the Discount Premium Amount interest, capitalised interest, costs, fees and expenses from time to time) expressed to be secured by the Senior Security Documents.
|
6.2 |
No further advances
|
6.3 |
Calculation of principal
|
(a) |
any sums (other than fresh advances made under the Senior Facility Agreement) becoming due as a result of any variations to the Senior Finance Documents;
|
(b) |
amounts owing under indemnities in the Senior Finance Documents in respect of taxation, currency and other matters; and
|
(c) |
losses, costs and expenses incurred by the Senior Mortgagee in perfecting and/or protecting the value of and/or maintaining and/or enforcing or realising its security under the Senior Finance Documents.
|
6.4 |
Assignment by Senior Mortgagee
|
6.5 |
Assignments to Obligors and affiliates
|
6.6 |
Discharge of Senior Security Documents
|
7 |
Adjustment of priorities
|
7.1 |
Application
|
(a) |
first, in or towards payment of costs and expenses incurred in or about or incidental to the realisation, or attempted realisation, by the Senior Mortgagee of such Security Proceeds (to the extent that such expenses take priority over any Prior Claims);
|
(b) |
secondly, in or towards satisfaction of any Prior Claims in respect of such Security Proceeds;
|
(c) |
thirdly, in or towards payment of, or retention for the Senior Loan and other monies comprised in the Senior Indebtedness (other than the Discount Premium Account);
|
(d) |
fourthly, in or towards payment in accordance with clause 3.2(a) of the Discount Premium Amount and the Subordinated Loan;
|
(e) |
fifthly, in or towards payment of, or retention for, the balance of the Subordinated Indebtedness in the manner and order specified in the Subordinated Finance Documents to the extent that the Subordinated Mortgagee is entitled to receive such Security Proceeds under the Subordinated Security Documents; and
|
(f) |
sixthly, the balance (if any) shall be paid to whoever is entitled to that balance.
|
7.2 |
Post-insolvency interest
|
7.3 |
Application of security recoveries
|
(a) |
any Distribution being made to, or a right of set-off of any obligations or liabilities of the Subordinated Mortgagee to any Obligor against the Subordinated Indebtedness being exercised by, the Subordinated Mortgagee or the Obligors contrary to the provisions of this Agreement; and/or
|
(b) |
any Distribution being made by any liquidator or other person to the Subordinated Mortgagee rather than to the Senior Mortgagee or the other Senior Finance Parties as required by clause 3.16; and/or
|
(c) |
the Subordinated Mortgagee or the Obligors or any of them being required to exercise rights of set-off of the obligations or liabilities of the Subordinated Mortgagee to any Obligors, against the Senior Indebtedness under applicable law as contemplated in clause 3.3(b)(iii):
|
(i) |
held in trust for the Senior Mortgagee; and
|
(ii) |
immediately paid to the Senior Mortgagee for application in accordance with clause 7.1 (
Application
).
|
7.4 |
Deductions from Security Proceeds
|
(a) |
the Subordinated Mortgagee receives from, or at the direction of, any court or any government, state or agency of a state (or an official or representative of a court or any government, state or agency of a state) any amount which represents only
part
of the proceeds realised from any property subject to the security created by the Security Documents which remain after satisfying any Prior Claims in respect of such proceeds); or
|
(b) |
the Senior Mortgagee receives all or part of the balance of such remaining proceeds,
|
8 |
Effect of this Agreement
|
8.1 |
Preservation of security
|
(a) |
the Senior Mortgagee and the other Senior Finance Parties; or
|
(b) |
the Subordinated Mortgagee,
|
8.2 |
No enquiry
|
8.3 |
Waivers
|
(a) |
grant time or indulgence;
|
(b) |
release, compound or otherwise deal with any person liable; or
|
(c) |
deal with, exchange, release, modify or abstain from perfecting or enforcing any of the rights which it has against any Obligor and/or the Charged Property.
|
9 |
Representations
|
9.1 |
Status
|
9.2 |
Binding obligations
|
9.3 |
Power and authority
|
9.4 |
Validity and admissibility in evidence
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Agreement; and
|
(b) |
to make this Agreement admissible in evidence in each party's Relevant Jurisdictions,
|
9.5 |
Governing law and enforcement
|
9.6 |
Senior Mortgagee as Agent and Bailee for Perfection
|
10 |
Costs and expenses
|
11 |
Notices
|
11.1 |
Communications in writing
|
11.2 |
Addresses
|
11.3 |
Delivery
|
(a) |
Any communication or document made or delivered by one person to another under or in connection with this Agreement will only be effective:
|
(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 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 a Mortgagee will be effective only when actually received by that Mortgagee and then only if it is expressly marked for the attention of the department or officer identified in Schedule 1 (or any substitute department or officer as that party shall specify for this purpose).
|
11.4 |
Electronic communication
|
(a) |
Any communication to be made between one Mortgagee and the other Mortgagee under or in connection with this Agreement may be made by electronic mail or other electronic means, and the Mortgagees agree:
|
(i) |
that unless and until notified to the contrary, this is an accepted form of communication between them;
|
(ii) |
to notify each other in writing of their electronic mail address and/or any other information required to enable the transmission of information by that means; and
|
(iii) |
to notify each other of any change to their address or any other such information supplied by them.
|
(b) |
Any electronic communication made between the Mortgagees will be effective only when actually received in readable form and in the case of any electronic communication made by a Mortgagee to the other Mortgagee only if it is addressed in such a manner as that other Mortgagee shall specify for this purpose.
|
(c) |
Any electronic communication which becomes effective, in accordance with paragraph (b) above, after 5:00 p. m. in the place in which the party to whom the relevant communication is
|
(d) |
Any reference in this Agreement to a co
mmunication being sent or received shall be construed to include that communication being made available in accordance with this clause 11.4.
|
11.5 |
English language
|
12 |
Counterparts
|
13 |
Partial invalidity
|
14 |
Remedies and waivers
|
15 |
Effect as deed
|
16 |
Governing law
|
17 |
Enforcement
|
17.1 |
Jurisdiction of English courts
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement) (a
Dispute
).
|
(b) |
The parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and, accordingly, that they shall not argue to the contrary.
|
(c) |
This clause 17.1 is for the benefit of the Senior Mortgagee only. As a result, the Senior Mortgagee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Senior Mortgagee may take concurrent proceedings in any number of jurisdictions.
|
17.2 |
Service of process
|
(a) |
irrevocably appoints the person named in Schedule 1 as its agent for service of process in relation to any proceedings before the English courts in connection with this Agreement;
|
(b) |
agrees that failure by an agent for service of process to notify it of the process shall not invalidate the proceedings concerned; and
|
(c) |
if any person appointed as its process agent is unable for any reason to act as agent for service of process, it must immediately (and in any event within ten days of such event taking place) appoint another agent on terms acceptable to the Senior Mortgagee. Failing this, the Senior Mortgagee may appoint another agent for this purpose.
|
Name
|
DIANA CONTAINERSHIPS INC.
|
Country of incorporation:
|
Marshall Islands
|
Registered office:
|
|
Process agent:
|
Nicolaou & Co
|
Office of process agent:
|
25 Heath Drive
EN6 1EN
|
Address for service of notices:
|
Pendelis 16
Paleo Faliro, Athens, Greece
|
Fax:
|
+30 210 942 4975
|
Attention:
|
Simon Palios
|
Senior Mortgagee
|
ADDIEWELL LTD
|
Country of incorporation:
|
British Virgin Islands
|
Registered office:
|
Addiewell Ltd.
Palm Grove House
P.O. Box 438
Road Town, Tortola
British Virgin Islands
|
Address for service of notices
|
As above
|
Fax:
|
|
Attention:
|
Attention: Eliyahu Hassett
|
Senior Facility Agreement
|
|
Description:
|
A facility agreement dated June 2017.
|
Original amount of term loan facility:
|
Up to $35,000 by way of loan and $10,000,000 by way of Discount Premium Amount
|
Parties (inter alios):
|
|
(a)
Borrowers:
|
Diana Containerships Inc.
|
(b) Guarantor: | As per list of Owners |
(b)
Lenders:
|
Addiewell Ltd.
|
(c)
Agent:
|
Addiewell Ltd as agent of the Senior Finance Parties from time to time
|
(c)
Security Trustee:
|
Addiewell Ltd as security trustee of the Senior Finance Parties from time to time
|
Subordinated Mortgagee
|
Diana Shipping Inc.
|
Country of incorporation:
|
Marshall Islands
|
Subordinated Facility Agreement
|
|
Description:
|
Loan Facility dated June 2017
|
Amount of facility:
|
Up to $87,616,666.66
|
Parties (inter alios):
|
|
(a)
Debtor:
|
Diana Containerships Inc.
|
(b)
Creditor:
|
Diana Shipping Inc.
|
1 |
A first mortgage over each Ship.
|
2 |
A first priority deed of assignment of the Insurances and Requisition Compensation in respect of each Ship dated made between the Owner and the Senior Mortgagee.
|
3 |
Promissory Notes.
|
4 |
Proceeds Assignment.
|
5 |
Pledge of Shares in respect of each Owner.
|
1. |
A second mortgage over each Ship and executed by the Owner originally in favour of the Subordinated Mortgagee.
|
2. |
Each of the deeds of assignment of the Insurances and Requisition Compensation in respect of the Ship made between the Owner and the Subordinated Mortgagee.
|
3. |
Promissory Note made in favour of the Subordinated Mortgagee.
|
4. |
Proceeds Assignment made in favour of the Subordinated Mortgagee.
|
5. |
Pledge of Shares in respect of each Owner made in favour of the Subordinated Mortgagee.
|
(a) |
the 3,426 TEU container vessel of 36,087 gross registered tons and IMO No 9401166 named "SAGITTA" and registered in the name of Likiep Shipping Company under Marshall Islands flag; and
|
(b) |
the 3,426 TEU container vessel of 36,087 gross registered tons and IMO No 9401178 named "CENTAURUS" and registered in the name of Orangina Inc under Marshall Islands flag.
|
(c) |
the 4,923 TEU container vessel of 54,828 gross registered tons and IMO No 9387097 named "NEW JERSEY" and registered in the name of Mango Shipping Company Inc. under Marshall Islands flag.
|
(d) |
the 5,042 TEU container vessel of 54,809 gross registered tons and IMO No 9326872 named "PAMINA" and registered in the name of Dud Shipping Company Inc. under Marshall Islands flag.
|
(e) |
the 3,739 TEU container vessel of 40,085 gross registered tons and IMO No 9215672 named "DOMINGO" and registered in the name of Rongerik Shipping Company Inc. under Marshall Islands flag.
|
(f) |
the 6,494 TEU container vessel of 71,786 gross registered tons and IMO No 9332860 named "HAMBURG" and registered in the name of Langor Shipping Company Inc. under Marshall Islands flag.
|
(g) |
the 6,494 TEU container vessel of 71,786 gross registered tons and IMO No 9332858 named "ROTTERDAM" and registered in the name of Meck Shipping Company Inc. under Marshall Islands flag.
|
(h) |
the 6,541 TEU container vessel of 73,934 gross registered tons and IMO No 9306172 named "PUELO" and registered in the name of Eluk Shipping Company Inc. under Marshall Islands flag.
|
(i) |
the 6,541 TEU container vessel of 73,934 gross registered tons and IMO No 9306158 named "PUCON" and registered in the name of Oruk Shipping Company Inc. under Marshall Islands flag.
|
(j) |
the 5,576 TEU container vessel of 66,332 gross registered tons and IMO No 9298997 named "MARCH" and registered in the name of Delap Shipping Company Inc. under Marshall Islands flag.
|
(k) |
the 5,576 TEU container vessel of 66,332 gross registered tons and IMO No 9267156 named "GREAT" and registered in the name of Jabor Shipping Company Inc. under Marshall Islands flag.
|
SIGNATORIES
The Borrower
Signed by Ioannis Zafirakis
DIANA CONTAINERSHIPS, INC
as borrower in the presence of:
The Owners
Signed by Ioannis Zafirakis
MAGO SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
DUD SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
RONGERIK SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
LANGOR SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
MECK SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
ELUK SHIPPING COMPANY INC.
as owner in the presence of:
|
)
)
)
/
s/ Ioannis Zafirakis
Attorney-in-fact
)
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
|
Signed by Ioannis Zafirakis
ORUK SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
DELAP SHIPPING COMPANY INC.
as owner in the presence of:
Signed by Ioannis Zafirakis
JABOR SHIPPING COMPANY INC.
as owner in the presence of:
Senior Mortgagee
Signed by E. Hanett
ADDIEWELL LTD
as Mortgagee in the presence of:
The Subordinated Mortgagee
EXECUTED
as a
DEED
by: Ioannis Zafirakis
for and on behalf of
DIANA SHIPPING INC.
as Subordinated Mortgagee
in the presence of:
/s/
Margarita Veniou
Witness
Name: Margarita Veniou
Address: Pendelis 16, 17564, Athens Greece
Occupation:
|
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/ Ioannis Zafirakis
Attorney-in-fact
)
)
/s/
Cokhava Marciano
Attorney-in-fact
Cokhava Marciano
28 Cranbourne Gardens
NW11 OHP
)
)
)
)
)
/s/ Ioannis Zafirakis
) Attorney-in-fact
|
Clause
|
Page No.
|
|
1
|
DEFINITIONS AND INTERPRETATION
|
1
|
2
|
THE FACILITY
|
15
|
3
|
PURPOSE
|
15
|
4
|
CONDITIONS OF UTILISATION
|
16
|
5
|
UTILISATION
|
17
|
6
|
REPAYMENT
|
18
|
7
|
PREPAYMENT AND CANCELLATION
|
18
|
8
|
INTEREST
|
22
|
9
|
INTEREST DATES
|
22
|
10
|
ASSUMPTION AND CONFIRMATION
|
22
|
11
|
AGENCY FEE
|
23
|
12
|
TAX GROSS UP AND INDEMNITIES
|
24
|
13
|
OTHER INDEMNITIES
|
28
|
14
|
COSTS AND EXPENSES
|
29
|
15
|
GUARANTEE AND INDEMNITY
|
30
|
16
|
REPRESENTATIONS
|
33
|
17
|
INFORMATION UNDERTAKINGS
|
37
|
18
|
FINANCIAL COVENANTS
|
39
|
19
|
GENERAL UNDERTAKINGS
|
40
|
20
|
INSURANCE
|
43
|
21
|
SHIP COVENANTS
|
47
|
22
|
APPLICATION OF EARNINGS
|
51
|
23
|
EVENTS OF DEFAULT
|
51
|
24
|
CHANGES TO THE LENDERS
|
55
|
25
|
CHANGES TO THE OBLIGORS
|
59
|
26
|
ROLE OF THE SERVICING PARTIES
|
60
|
27
|
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
68
|
28
|
SHARING AMONG THE FINANCE PARTIES
|
68
|
29
|
PAYMENT MECHANICS
|
70
|
30
|
SET-OFF
|
72
|
31
|
NOTICES
|
72
|
32
|
CALCULATIONS AND CERTIFICATES
|
74
|
33
|
PARTIAL INVALIDITY
|
74
|
34
|
REMEDIES AND WAIVERS
|
74
|
35
|
AMENDMENTS AND WAIVERS
|
74
|
36
|
CONFIDENTIALITY
|
75
|
37
|
COUNTERPARTS
|
78
|
38
|
GOVERNING LAW
|
79
|
39
|
ENFORCEMENT
|
79
|
40
|
INTERCREDITOR AGREEMENT; CONFLICTS
|
79
|
SCHEDULE 1 THE PARTIES PART I THE OBLIGORS
|
81
|
|
SCHEDULE 1 THE PARTIES PART II LENDERS
|
84
|
|
SCHEDULE 2 CONDITIONS PRECEDENT TO UTILISATION
|
85
|
|
SCHEDULE 3 UTILISATION REQUEST
|
2
|
|
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE
|
3
|
|
SCHEDULE 5 FORM OF ASSIGNMENT AGREEMENT
|
5
|
|
SIGNATORIES
|
8
|
(1) |
DIANA CONTAINERSHIPS INC
, a corporation incorporated in the Marshall Islands with registered office at Trust Company Complex, Ajeltake Island, P O Box 1405, Majuro, Marshall Islands MH96960 as borrower (the "
Borrower
");
|
(2) |
THE SUBSIDIARIES
of the Borrower listed in Part I of Schedule 1 as guarantors (the "
Guarantors
");
|
(3) |
THE FINANCIAL INSTITUTIONS
listed in Part II of Schedule 1 as lenders (the "
Lenders
");
|
(4) |
DIANA SHIPPING INC.
as agent of the Finance Parties (the "
Agent
"); and
|
(5) |
DIANA SHIPPING INC.
as trustee for the Finance Parties (the "
Security Trustee
").
|
1 |
DEFINITIONS AND INTERPRETATION
|
1.1 |
Definitions
|
(a) |
the amount of its participation in the Loan; and
|
(b) |
in relation to any proposed Utilisation, the amount of its participation in the Loan that is due to be made on or before the proposed Utilisation Date.
|
(a) |
in relation to a Lender, the amount set opposite its name under the heading "Commitment" in Part II of Schedule 1 (
The Parties
) and the amount of any other Commitment transferred to it under this Agreement; and
|
(b) |
in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
|
(a) |
any member of the Group or any of its advisers; or
|
(b) |
another Finance Party, if the information was obtained by that Finance Party directly or indirectly from any member of the Group or any of its advisers,
|
(i) |
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 36 (
Confidentiality
); or
|
(ii) |
is identified in writing at the time of delivery as non-confidential by any member of the Group or any of its advisers; or
|
(iii) |
is known by that Finance Party before the date the information is disclosed to it in accordance with paragraphs (a) or (b) above or is lawfully obtained by that Finance Party after that date, from a source which is, as far as that Finance party is aware, unconnected with the Group and which, in either case, as far as that Finance Party is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a) |
any claim by any governmental, judicial or regulatory authority which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law; or
|
(b) |
any claim by any other person which relates to an Environmental Incident or to an alleged Environmental Incident,
|
(a) |
any release of Environmentally Sensitive Material from a Ship; or
|
(b) |
any incident in which Environmentally Sensitive Material is released from a vessel other than a Ship and which involves a collision between a Ship and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Ship is actually or potentially liable to be arrested, attached, detained or injuncted and/or a Ship and/or any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action; or
|
(c) |
any other incident in which Environmentally Sensitive Material is released otherwise than from a Ship and in connection with which a Ship is actually or potentially liable to be arrested and/or where any Obligor and/or any operator or manager of a Ship is at fault or allegedly at fault or otherwise liable to any legal or administrative action.
|
(a) |
sections 1471 to 1474 of the Code or any associated regulations;
|
(b) |
any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or
|
(c) |
any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a) |
this Agreement;
|
(b) |
the Notes;
|
(c) |
the Mortgages;
|
(d) |
the Insurance Assignments;
|
(e) |
the Share Security;
|
(f) |
the Intercreditor Agreement;
|
(g) |
the Proceeds Assignment; and
|
(h) |
any other document designated as such by the Agent and the Borrower.
|
(a) |
money borrowed from all sources;
|
(b) |
any bonds, notes, loan stock, debentures or similar instruments;
|
(c) |
acceptance credits, bills of exchange or documentary credits;
|
(d) |
share issues on the basis that they are, or may become, redeemable (at redemption value);
|
(e) |
gross obligations under finance leases;
|
(f) |
factoring of debts;
|
(g) |
amounts raised or obligations incurred in respect of any other transaction, which has the commercial effect of borrowing as determined in accordance with GAAP,
|
(a) |
all policies and contracts of insurance, including entries of that Ship in any protection and indemnity or war risks association, effected in respect of that Ship, or otherwise in relation to that Ship whether before, on or after the date of this Agreement; and
|
(b) |
all rights and other assets relating to, or derived from, any of the foregoing, including any rights to a return of a premium and any rights in respect of any claim whether or not the relevant policy, contract of insurance or entry has expired on or before the date of this Agreement.
|
(a) |
any Lender; and
|
(b) |
any bank, financial institution, trust, fund or other entity or any special purpose vehicle owned by any such entity which has become a Party in accordance with Clause 24 (
Changes to the Lenders
),
|
(a) |
the business, conditions (financial or otherwise), property, performance, prospects or results or operations of any member of the Group or the Group taken as a whole, so as to result in a Default in respect of the financial covenants in Clause 18 (
Financial Covenants
) under this Agreement on the next occasion on which they are required to be measured for any purpose under this Agreement; or
|
(b) |
the ability of the Obligors taken as a whole to comply with their material obligations under this Agreement or the Finance Documents to which they are a party; or
|
(c) |
(if not falling within paragraph (b) above, and to the extent that there has not at the time of the Lenders' determination of Material Adverse Effect been another express Default), the legality, validity or enforceability of the Security created under or pursuant to the Finance Documents, or the rights or remedies of the Lenders in relation to that Security.
|
(a) |
(subject to paragraph (c) below) if the numerically corresponding day is not a Business Day, that period shall end on the next Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day; and
|
(b) |
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month.
|
(a) |
Security created by the Finance Documents;
|
(b) |
Security created by the Senior Finance Documents;
|
(c) |
any netting or set-off arrangement entered into by any member of the Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances;
|
(d) |
in respect of a Ship, liens for unpaid master's and crew's wages in accordance with usual maritime practice;
|
(e) |
in respect of a Ship, liens for salvage;
|
(f) |
in respect of a Ship, liens for master's disbursements incurred in the ordinary course of trading; and
|
(g) |
any other lien arising by operation of law or otherwise in the ordinary course of the operation, repair or maintenance of a Ship, provided such liens do not secure amounts more than 30 days overdue (unless the overdue amount is being contested in good faith by appropriate steps) and subject, in the case of liens for repair or maintenance, to Clause 21.11 (
Restrictions on chartering, appointment of managers etc.
).
|
(a) |
imposed by law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or the United States of America regardless of whether the same is or is not binding on any Obligor; or
|
(b) |
otherwise imposed by any law or regulation binding on an Obligor or to which an Obligor is subject (which shall include without limitation, any extra-territorial sanctions imposed by law or regulation of the United States of America).
|
(a) |
a mortgage, charge (whether fixed or floating), pledge, assignment, trust, trust receipt, consignment, any maritime or other lien of any kind;
|
(b) |
any other security interest of a kind not included in paragraph (a) of this definition;
|
(c) |
a conditional sale agreement (including an agreement to sell subject to retention of title), hire purchase agreement, lease or contract of bailment that in effect secures payment or performance of a liability or obligation;
|
(d) |
right of set-off or flawed asset arrangement that in effect secures payment or performance of a liability or obligation; and
|
(e) |
without limiting the generality of the preceding paragraphs of this definition, any other transaction or instrument that in substance or by operation of law, now or in the future, creates an interest, right or claim in relation to property (real or personal) that secures the payment or performance of a liability or obligation, without regard to:
|
(i) |
the form of the transaction or instrument; or
|
(ii) |
the identity of the person who has title to the relevant property.
|
(a) |
the Senior Loan Agreement; and
|
(b) |
any other document relating to or evidencing Senior Liabilities.
|
(a) |
the 3,426 TEU container vessel of 36,087 gross registered tons and IMO No 9401166 named "SAGITTA" and registered in the name of Likiep Shipping Company Inc. under the Marshall Islands flag;
|
(b) |
the 3,426 TEU container vessel of 36,087 gross registered tons and IMO No 9401178 named "CENTAURUS" and registered in the name of Orangina Inc. under the Marshall Islands flag.
|
(c) |
the 4,923 TEU container vessel of 54,828 gross registered tons and IMO No 9387097 named "NEW JERSEY" and registered in the name of Mago Shipping Company Inc. under the Marshall Islands flag.
|
(d) |
the 5,042 TEU container vessel of 54,809 gross registered tons and IMO No 9326782 named "PAMINA" and registered in the name of Dud Shipping Company Inc. under Marshall Islands flag.
|
(e) |
the 3,739 TEU container vessel of 40,085 gross registered tons and IMO No 9215672 named "DOMINGO" and registered in the name of Rongerik Shipping Company Inc. under the Marshall Islands flag.
|
(f) |
the 6,494 TEU container vessel of 71,786 gross registered tons and IMO No 9332860 named "HAMBURG" and registered in the name of Langor Shipping Company Inc. under the Marshall Islands flag.
|
(g) |
the 6,494 TEU container vessel of 71,786 gross registered tons and IMO No 9332858 named "ROTTERDAM" and registered in the name of Meck Shipping Company Inc. under the Marshall Islands flag.
|
(h) |
the 6,541 TEU container vessel of 73,934 gross registered tons and IMO No 9306172 named "PUELO" and registered in the name of Eluk Shipping Company Inc. under the Marshall Islands flag.
|
(i) |
the 6,541 TEU container vessel of 73,934 gross registered tons and IMO No 9306158 named "PUCON" and registered in the name of Oruk Shipping Company Inc. under the Marshall Islands flag.
|
(j) |
the 5,576 TEU container vessel of 66,332 gross registered tons and IMO No 9298997 named "MARCH" and registered in the name of Delap Shipping Company Inc. under the Marshall Islands flag.
|
(k) |
the 5,576 TEU container vessel of 66,332 gross registered tons and IMO No 9267156 named "GREAT" and registered in the name of Jabor Shipping Company Inc. under the Marshall Islands flag.
|
(a) |
actual, constructive, compromised, agreed or arranged total loss of that Ship;
|
(b) |
any expropriation, confiscation, requisition or acquisition of that Ship, whether for full consideration, a consideration less than its proper value, a nominal consideration or without any consideration, which is effected by any government or official authority or by any person or persons claiming to be or to represent a government or official authority (excluding a requisition for hire for a fixed period not exceeding 1 year without any right to an extension) unless it is within 30 days redelivered to the full control of the Guarantor which owns that Ship; and
|
(c) |
any arrest, capture, seizure or detention of that Ship (including any hijacking or theft) unless it is within 30 days redelivered to the full control of the Guarantor which owns that Ship or in the case of a piracy event such longer period as may be applicable under the relevant hull marine and/or war insurance policy before such piracy event becomes declarable as a total loss under such insurance policy.
|
(a) |
in the case of an actual loss of that Ship, the date on which it occurred or, if that is unknown, the date when that Ship was last heard of;
|
(b) |
in the case of a constructive, compromised, agreed or arranged total loss of that Ship, the earlier of:
|
(i) |
the date on which a notice of abandonment is given to the insurers; and
|
(ii) |
the date of any compromise, arrangement or agreement made by or on behalf of the Guarantor which owns that Ship with that Ship's insurers in which the insurers agree to treat that Ship as a total loss; and
|
(c) |
in the case of any other type of total loss, the date (or the most likely date) on which it appears to the Agent that the event constituting the total loss occurred.
|
(a) |
the proposed Transfer Date specified in the relevant Assignment Agreement or Transfer Certificate; and
|
(b) |
the date on which the Agent executes the relevant Assignment Agreement or Transfer Certificate.
|
(a) |
all Security and other rights granted to, or held or exercisable by, the Security Trustee under or by virtue of the Finance Documents, except rights intended for the sole benefit or protection of the Security Trustee;
|
(b) |
all moneys or other assets which are received or recovered by or on behalf of the Security Trustee under or by virtue of any Security or right covered by paragraph (a) above, including any moneys or other assets which are received or recovered by it as a result of the enforcement or exercise by it of such a Security or right; and
|
(c) |
all moneys or other assets which may accrue in respect of, or be derived from, any moneys or other assets covered by paragraph (b) above,
|
1.2 |
Construction
|
(a) |
Unless a contrary indication appears, any reference in this Agreement to:
|
(i) |
any "
Finance
Party
", any "
Obligor
" or any other "
person"
shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
(ii) |
"
assets
" includes present and future properties, revenues and rights of every description;
|
(iii) |
a "
Finance Document
", or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated;
|
(iv) |
"
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;
|
(v) |
a "
person
" includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing;
|
(vi) |
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 organisation;
|
(vii) |
a provision of any law or regulation is a reference to that provision or regulation as amended, extended, re-enacted or replaced; and
|
(viii) |
a time of day is a reference to London time.
|
(b) |
Section, Clause and Schedule headings are for ease of reference only and are not to be used for the purposes of construction or interpretation of the Finance Documents.
|
(c) |
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under, or in connection with, any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(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 remedied or waived.
|
1.3 |
Third Party Rights
|
(a) |
Unless expressly provided to the contrary in a Finance Document, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 (the "
Third Parties Act
") to enforce or to enjoy the benefit of any term of this Agreement.
|
(b) |
Notwithstanding any term of any Finance Document, the consent of any person who is not a Party is not required to rescind or vary this Agreement at any time.
|
2 |
THE FACILITY
|
2.1 |
The Facility
|
(a) |
Subject to the terms of this Agreement, the Lenders have agreed to make available to the Borrower a dollar credit facility in an aggregate amount equal to the Total Commitments.
|
(b) |
In consideration of this and recognising the substantial benefit received by the Borrower and the Guarantors from the advance of the Loan, the Borrower has agreed to pay to the Lenders US$5,000,000 by way of Discount Premium Amount which amount is to be payable in accordance with this Agreement together with interest thereon accruing and payable as if such Discount Premium Amount were advanced to the Borrowers by way of loan on the Utilisation Date.
|
2.2 |
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 separately sue for any Unpaid Sum due to it.
|
(d) |
Except as provided in paragraph (c) above, no Finance Party may commence proceedings against any Obligor in connection with a Finance Document without the prior consent of the Lenders.
|
3 |
PURPOSE
|
3.1 |
Purpose
|
3.2 |
Monitoring
|
4 |
CONDITIONS OF UTILISATION
|
4.1 |
Availability Date
|
4.2 |
Conditions Subsequent
|
5 |
UTILISATION
|
5.1 |
Delivery of a Utilisation Request
|
5.2 |
Completion of a Utilisation Request
|
(a) |
A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:
|
(i) |
the proposed Utilisation Date is a Business Day within the Availability Period; and
|
(ii) |
the currency and amount of the Utilisation comply with Clause 5.3 (
Currency and amount
).
|
(b) |
Only one Utilisation Request is permitted under this Agreement.
|
5.3 |
Currency and amount
|
(a) |
The currency specified in a Utilisation Request must be dollars.
|
(b) |
The amount of the proposed Loan must be for an amount which does not exceed the Available Facility.
|
5.4 |
Lenders' participation
|
(a) |
If the conditions set out in this Agreement have been met, each Lender shall make its participation in the Loan available by the Utilisation Date through its Facility Office.
|
(b) |
The amount of each Lender's participation in the Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately before making the Loan.
|
(c) |
The Agent shall notify each Lender of the amount of the Loan and the amount of its participation in the Loan.
|
5.5 |
Cancellation of Commitment
|
6 |
REPAYMENT
|
6.1 |
Repayment of Loan and payment of Discount Premium Amount
|
6.2 |
Termination Date
|
6.3 |
Reborrowing
|
6.4 |
Early Repayment
|
7 |
PREPAYMENT AND CANCELLATION
|
7.1 |
Illegality
|
(a) |
If it becomes unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in the Loan:
|
(i) |
that Lender (the "
Notifying Lender
")
shall promptly notify the Agent upon becoming aware of that event;
|
(ii) |
upon the Agent notifying the Borrower, the Commitment of that Lender will be immediately cancelled; and
|
(iii) |
subject to the terms of the Intercreditor Agreement, the Borrower shall repay that Lender's participation in the Loan on the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
7.2 |
Change of executive management and/or beneficial ownership
|
(a) |
If there is a change in one or more of the Executive Managers other than a change resulting from the death, disability or removal for cause of an Executive Manager:
|
(i) |
the Borrower shall promptly notify the Agent upon becoming aware of that event; and
|
(ii) |
a Lender shall not be obliged to fund the Utilisation; and
|
(iii) |
subject to the terms of the Intercreditor Agreement and if the Lenders so require, the Agent shall, by not less than 30 days' notice to the Borrower, cancel the Facility and declare the Loan, together with accrued interest, the Discount Premium Amount and all other amounts accrued under the Finance Documents immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
|
(b) |
If a change occurs after the date of this Agreement in the ultimate beneficial ownership of any of the shares in the Borrower or any of its Subsidiaries so that persons other than:
|
(i) |
members of the Relevant Families or the Agent;
|
(ii) |
beneficiaries of any employee stock ownership plan or other employee benefit plan of the Borrower or its Subsidiaries; or
|
(iii) |
one or more underwriters temporarily holding shares of the Borrower pursuant to an offering of such shares,
|
(i) |
the Borrower shall promptly notify the Agent upon becoming aware of that event; and
|
(ii) |
a Lender shall not be obliged to fund a Utilisation; and
|
(iii) |
subject to the terms of the Intercreditor Agreement and if the Lenders so require, the Agent shall, by not less than 30 days' notice to the Borrower, cancel the Facility and declare the Loan, together with accrued interest, and all other amounts accrued under the Finance Documents and the Discount Premium Amount immediately due and payable, whereupon the Facility will be cancelled and all such outstanding amounts and the Discount Premium Amount will become immediately due and payable.
|
7.3 |
Voluntary prepayment
|
7.4 |
Mandatory Prepayment – Refinancing Proceeds
|
7.5 |
Mandatory prepayment – Sale or Total Loss
|
(a) |
If a Ship is sold or becomes a Total Loss, the relevant part of the Proceeds thereof shall (subject to the Intercreditor Agreement and subject to Clause 7.7) be applied by whichever Obligor or Finance Party is in receipt of the same in accordance with Clause 29.5.
|
(b) |
Such repayment shall be made:
|
(i) |
in the case of a sale of a Ship, on or before the date on which the sale is completed by delivery of that Ship to the buyer;
|
(ii) |
in the case of a Total Loss, on the earlier of the date falling 120 days after the Total Loss Date and the date of receipt by the Security Trustee of the proceeds of insurance relating to such Total Loss; or
|
(iii) |
as otherwise required by the Intercreditor Agreement.
|
(c) |
For the purpose of paragraph (a) above, "
relevant part
" means an amount equal to the net sales proceeds of the relevant Ship or (in the case of a Total Loss) the amount for which such Ship is to be insured pursuant to this Agreement (less any irrecoverable costs of collection); provided that, in the case of a sale, the Lenders may require evidence that the sale price was not less than the fair market value of the relevant Ship.
|
7.6 |
Mandatory Prepayment - other Proceeds
|
7.7 |
Replacement Option
|
(a) |
Upon the sale of the Ship (or a Total Loss of a Ship) the Borrower may, subject to no Event of Default having occurred and being continuing and subject to the Intercreditor Agreement, elect to retain the proceeds of such sale (or Total Loss) for the purpose of re-investing such amount in another vessel approved by the Security Trustee on behalf of the Lenders being a vessel with a market value at least equal to the re-invested amount.
|
(b) |
In such case, and prior to completion of the relevant sale of a Ship (or receipt of Total Loss proceeds) the Borrower shall constitute in favour of the Security Trustee a Security over such sale (or Total Loss) proceeds in agreed form and provide the Security Trustee with such ancillary evidence, Authorisation and other documents as the Security Trustee may require.
|
(c) |
The funds so deposited will stand as security for the Loan and the Discount Premium Amount and other moneys under this Agreement but may be released from such Security upon the purchase by the Borrower of a ship approved by the Security Trustee (on behalf of the Lenders) in its absolute discretion, and on the basis that forthwith upon the completion of such purchase the new ship will be subject to a Mortgage and Insurance Assignment as security for the Loan and the Discount Premium Amount, and the Borrower will have provided to the Security Trustee such documents, Authorisation and evidence similar to the requirements set forth in Schedule 2 as the Security Trustee may (in its absolute discretion) require. Upon completion of such purchase the Borrower and the Guarantors will enter into such supplementary documentation as the Agent may require to incorporate the new vessel into the term of this Agreement.
|
(d) |
If the Borrower does not use the relevant sale (or Total Loss) proceeds within 6 months of receipt or, if earlier, prior to the Termination Date then the relevant proceeds shall be applied in prepayment of the Loan and the Discount Premium Amount by the Lenders at any time thereafter and in accordance with the Intercreditor Agreement.
|
8 |
INTEREST
|
8.1 |
Calculation of interest
|
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 on its due date, interest shall accrue on the Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at Fourteen per cent (14%) per annum. Any interest accruing under this Clause 8.3 shall be immediately payable by the Obligors on demand by the Agent.
|
(b) |
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each month but will remain immediately due and payable.
|
9 |
INTEREST DATES
|
9.1 |
Non-Business Days
|
10 |
ASSUMPTION AND CONFIRMATION
|
10.1 |
Assumption
|
10.2 |
Consideration
|
11 |
AGENCY FEE
|
11.1 |
Agency fees
|
12 |
TAX GROSS UP AND INDEMNITIES
|
12.1 |
Definitions.
|
12.2 |
Tax gross-up
|
(a) |
Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.
|
(b) |
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c) |
If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
(d) |
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
12.3 |
Tax indemnity
|
(a) |
The Borrower shall (within 3 Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.
|
(b) |
Paragraph (a) above shall not apply:
|
(i) |
with respect to any Tax assessed on a Finance Party:
|
(A) |
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
(B) |
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
(ii) |
to the extent a loss, liability or cost:
|
(A) |
is compensated for by an increased payment under Clause 12.2 (
Tax gross-up
); or
|
(B) |
would have been compensated for by an increased payment under Clause 12.2 (
Tax gross-up
) but was not so compensated solely because one of the exclusions in paragraph (d) of Clause 12.2 (
Tax gross-up
) applied or related to a FATCA Deduction required to be made by a Party.
|
(c) |
A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the Agent of the event which will give, or has given, rise to the claim, following which the Agent shall notify the Borrower.
|
(d) |
A Protected Party shall, on receiving a payment from an Obligor under this Clause 12.3, notify the Agent.
|
12.4 |
Stamp taxes
|
12.5 |
FATCA Information
|
(a) |
Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:
|
(i) |
confirm to that other Party whether it is:
|
(A) |
a FATCA Exempt Party; or
|
(ii) |
not a FATCA Exempt Party; and
|
(iii) |
supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and
|
(iv) |
supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.
|
(b) |
If a Party confirms to another Party pursuant to sub-paragraph (i) of paragraph (a) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
|
(c) |
Paragraph (a) above shall not oblige any Finance Party to do anything and sub-paragraph (iv) of paragraph (a) above shall not oblige any other Party to do anything which would or might in its reasonable opinion constitute a breach of:
|
(i) |
any law or regulation;
|
(ii) |
any fiduciary duty; or
|
(iii) |
any duty of confidentiality.
|
(d) |
If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with sub-paragraphs (i) or (iii) of paragraph (a) above (including, for the avoidance of doubt, where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.
|
(e) |
If the Borrower is a US Tax Obligor, or the Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Lender shall, within ten Business Days of:
|
(i) |
where the Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;
|
(ii) |
where the Borrower is a US Tax Obligor on a Transfer Date and the relevant Lender is a New Lender, the relevant Transfer Date; or
|
(iii) |
where the Borrower is not a US Tax Obligor, the date of a request from the Facility Agent,
|
(i) |
a withholding certificate on Form W-8, Form W-9 or any other relevant form; or
|
(ii) |
any withholding statement or other document, authorisation or waiver as the Facility Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.
|
(f) |
The Facility Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) above to the Borrower.
|
(g) |
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do so (in which case the Lender
|
(h) |
The Facility Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to paragraph (e) or (g) above without further verification. The Facility Agent shall not be liable for any action taken by it under or in connection with paragraphs (e), (f) or (g) above.
|
12.6 |
FATCA Deduction
|
(a) |
Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction, including without limitation, under Clauses 12.2 and 12.3 of this Agreement.
|
(b) |
Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify each Obligor and the Facility Agent and the Facility Agent shall notify the other Finance Parties.
|
12.7 |
VAT
|
(a) |
All amounts set out or expressed in a Finance Document to be payable by any Party to a Finance Party which (in whole or in part) constitute the consideration for a supply or supplies for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document, that Party shall pay to the Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Finance Party shall promptly provide an appropriate VAT invoice to such Party).
|
(b) |
If VAT is or becomes chargeable on any supply made by any Finance Party (the "
Supplier
") to any other Finance Party (the "
Recipient
") under a Finance Document, and any Party other than the Recipient (the "
Subject Party
") is required by the terms of any Finance Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
|
(c) |
Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
(d) |
Any reference in this Clause 12.5 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the
|
13 |
OTHER INDEMNITIES
|
13.1 |
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; 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.
|
13.2 |
Other indemnities
|
(a) |
the occurrence of any Event of Default;
|
(b) |
a failure by an Obligor to pay any amount due under a Finance Document on its due date, including without limitation, any cost, loss or liability arising as a result of Clause 28 (
Sharing among the Finance Parties
);
|
(c) |
funding, or making arrangements to fund, its participation in the Loan requested by the Borrower in a Utilisation 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); or
|
(d) |
the Loan (or part of the Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower.
|
13.3 |
Indemnity to the Agent and the Security Trustee
|
(a) |
investigating any event which it reasonably believes is a Default; or
|
(b) |
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised.
|
13.4 |
Environmental Indemnity
|
14 |
COSTS AND EXPENSES
|
14.1 |
Transaction expenses
|
(a) |
this Agreement and any other documents referred to in this Agreement; and
|
(b) |
any other Finance Documents executed after the date of this Agreement.
|
14.2 |
Amendment costs
|
14.3 |
Enforcement costs
|
15 |
GUARANTEE AND INDEMNITY
|
15.1 |
Guarantee and indemnity
|
(a) |
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
(b) |
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document that Guarantor shall immediately on demand pay that amount as if it were the principal obligor;
|
(c) |
agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for such unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due. The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 15 if the amount claimed had been recoverable on the basis of a guarantee; and
|
(d) |
confirms in accordance with Clause 10.2 that this Clause shall apply in all respects to the Borrower's obligation with respect to the Discount Premium Amount.
|
15.2 |
Continuing guarantee
|
15.3 |
Reinstatement
|
15.4 |
Waiver of defences
|
(a) |
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
(b) |
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
|
(c) |
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any 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 realise the full value of any security;
|
(d) |
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
(e) |
any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;
|
(f) |
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or
|
(g) |
any insolvency or similar proceedings.
|
15.5 |
Immediate recourse
|
15.6 |
Appropriations
|
(a) |
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 (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
(b) |
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 15.
|
15.7 |
Deferral of Guarantors' rights
|
(a) |
to be indemnified by an Obligor;
|
(b) |
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;
|
(c) |
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
(d) |
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 15.1 (
Guarantee and Indemnity
);
|
(e) |
to exercise any right of set-off against any Obligor; and/or
|
(f) |
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
15.8 |
Additional security
|
16 |
REPRESENTATIONS
|
16.1 |
Status
|
(a) |
It is a corporation, duly incorporated and validly existing in good standing under the law of its jurisdiction of incorporation.
|
(b) |
It and each of its Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
16.2 |
Binding obligations
|
16.3 |
Status of security
|
(a) |
Each Finance Document to which it is a party does now or, as the case may be, will upon execution and delivery (and, where applicable, registration) confer the Security it purports to confer over any assets to which such Security, by its terms, relates subject to any general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered pursuant to Clause 4 (
Conditions of Utilisation
) or Clause 25 (
Changes to the Obligors
); and
|
(b) |
no third party will have any Security (except for Permitted Security) over any asset to which such Security, by its terms, relates.
|
16.4 |
Non-conflict with other obligations
|
(a) |
any law or regulation applicable to it;
|
(b) |
its or any of its Subsidiaries' constitutional documents; or
|
(c) |
any agreement or instrument binding upon it or any of its Subsidiaries or any of its or any of its Subsidiaries' assets.
|
16.5 |
Power and authority
|
16.6 |
Validity and admissibility in evidence
|
(a) |
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Finance Documents to which it is a party; and
|
(b) |
to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
|
16.7 |
Governing law and enforcement
|
(a) |
The choice of English law as the governing law of the Finance Documents (other than any Mortgage) will be recognised and enforced in its jurisdiction of incorporation.
|
(b) |
Any judgment obtained in England in relation to a Finance Document (other than a Mortgage) will be recognised and enforced in its jurisdiction of incorporation.
|
(c) |
The choice of law of the relevant Approved Flag State as the governing law of each Mortgage will be recognised and enforced in its jurisdiction of incorporation.
|
16.8 |
Deduction of Tax
|
16.9 |
No filing or stamp taxes
|
16.10 |
No default
|
(a) |
No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
|
(b) |
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Subsidiaries or to which its (or its Subsidiaries') assets are subject which might have a Material Adverse Effect.
|
16.11 |
No misleading information
|
(a) |
All financial and other information which is provided by or on behalf of any member of the Group under or in connection with any Finance Document is true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
16.12 |
Financial statements
|
(a) |
Its Original Financial Statements were prepared in accordance with GAAP consistently applied unless expressly disclosed to the Agent in writing to the contrary before the date of this Agreement.
|
(b) |
Its Original Financial Statements fairly represent its financial condition and operations (consolidated in the case of the Borrower) during the relevant financial year unless expressly disclosed to the Agent in writing to the contrary before the date of this Agreement.
|
(c) |
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Group, in the case of the Borrower) since 30
th
March 2017.
|
16.13 |
Pari passu ranking
|
16.14 |
No proceedings pending or threatened
|
16.15 |
Sanctions
|
(a) |
None of the Obligors, any other member of the Group or any Affiliate of any of them is a Prohibited Person or is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and none of such persons owns or controls a Prohibited Person.
|
(b) |
None of the Obligors has a Prohibited Person serving as a director, officer or employee.
|
(c) |
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
|
(d) |
Each Obligor, each other member of the Group and each Affiliate of any of them is in compliance with all Sanctions.
|
16.16 |
Disclosure of Debts
|
16.17 |
Repetition
|
16.18 |
No Registration
|
16.19 |
No Integration
|
16.20 |
No Directed Selling Efforts
|
16.21 |
Certain Fees
|
16.22 |
Offering Materials
|
16.23 |
Foreign Private Issuer
|
16.24 |
Substantial U.S. Market Interest
|
17 |
INFORMATION UNDERTAKINGS
|
17.1 |
Financial statements
|
(a) |
as soon as the same become available, but in any event within 180 days after the end of each of its financial years its audited consolidated financial statements for that financial year; and
|
(b) |
as soon as the same become available, but in any event within 90 days after the end of each quarter of each of its financial years its unaudited consolidated financial statements for that financial quarter.
|
17.2 |
Compliance Certificate
|
(a) |
The Borrower shall supply to the Agent, with each set of financial statements delivered pursuant to paragraph (a) or (b) of Clause 17.1 (
Financial statements
), a Compliance Certificate setting out (in reasonable detail) computations as to compliance with each of the financial covenants in Clause 18 (
Financial covenants
) as at the date as at which those financial statements were drawn up.
|
(c) |
Each Compliance Certificate shall be signed by the chief financial officer of the Borrower.
|
17.3 |
Requirements as to financial statements
|
(a) |
Each set of financial statements delivered by the Borrower pursuant to Clause 17.1 (
Financial statements
) shall be certified by the chief financial officer of the Borrower as fairly representing its financial condition as at the date as at which those financial statements were drawn up.
|
(b) |
The Borrower shall procure that each set of financial statements delivered pursuant to Clause 17.1 (
Financial statements
) is prepared in accordance with all applicable laws, the requirements of the United States Securities and Exchange Commission and GAAP.
|
17.4 |
Information: miscellaneous
|
(a) |
at the same time as they are despatched, all documents dispatched by the Borrower to its shareholders (or any class of them) or its creditors generally and any documents filed with the United States Securities and Exchange Commission;
|
(b) |
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings (including proceedings relating to any alleged or actual breach of the ISM Code or of the ISPS Code) which are current, threatened or pending against any
|
(c) |
as soon as practicable after receiving the request, such further information regarding any Ship, its Insurances or the financial condition, business and operations of any member of the Group as any Finance Party (through the Agent) may reasonably request.
|
17.5 |
Notification of default
|
(a) |
Each Obligor shall notify the Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence (unless that Obligor is aware that a notification has already been provided by another Obligor).
|
(b) |
Promptly upon a request by the Agent, the Borrower shall supply to the Agent a certificate signed by 2 of its directors or senior officers 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).
|
17.6 |
Use of websites
|
(a) |
The Borrower may satisfy its obligation under this Agreement to deliver any information in relation to those Lenders (the "
Website Lenders
") which accept this method of communication by posting this information onto an electronic website designated by the Borrower and the Agent (the "
Designated Website
") if:
|
(i) |
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method, in which case it shall notify the Borrower in writing promptly after such consultation;
|
(ii) |
both the Borrower and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and
|
(iii) |
the information is in a format previously agreed between the Borrower and the Agent.
|
(b) |
The Agent shall supply each Website Lender with the address of and any relevant password specifications for the Designated Website following designation of that website by the Borrower and the Agent.
|
(c) |
The Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:
|
(i) |
the Designated Website cannot be accessed due to technical failure;
|
(ii) |
the password specifications for the Designated Website change;
|
(iii) |
any new information which is required to be provided under this Agreement is posted onto the Designated Website;
|
(iv) |
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or
|
(v) |
the Borrower becomes aware that the Designated Website or any information posted onto the Designated Website is or has been infected by any electronic virus or similar software.
|
(d) |
Any Website Lender may request, through the Agent, one paper copy of any information required to be provided under this Agreement which is posted onto the Designated Website. The Borrower shall comply with any such request within 10 Business Days.
|
17.7 |
"Know your customer" checks
|
(a) |
If:
|
(i) |
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or internal guideline made after the date of this Agreement;
|
(ii) |
any change in the status of an Obligor after the date of this Agreement; or
|
(iii) |
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b) |
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent 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.
|
18 |
FINANCIAL COVENANTS
|
18.1 |
Borrowings
|
18.2 |
Expenditure
|
18.3 |
Intentionally Omitted
|
18.4 |
Working Capital
|
19 |
GENERAL UNDERTAKINGS
|
19.1 |
Authorisations
|
(a) |
obtain, comply with and do all that is necessary to maintain in full force and effect; and
|
(b) |
supply certified copies to the Agent of,
|
19.2 |
Compliance with laws
|
(a) |
Each Obligor shall comply in all respects with all laws to which it may be subject, if (except as regards Sanctions, to which paragraph (b) below applies) failure so to comply would materially impair its ability to perform its obligations under the Finance Documents.
|
(b) |
Each member of the Group and shall comply, in all respect with all Sanctions.
|
(c) |
As regards the Guarantors this Clause 19.2 is not a limitation of Clause 21.8, and
vice versa
.
|
19.3 |
Negative pledge
|
19.4 |
No disposal of assets
|
(a) |
any Ship or any Subsidiary or part of its assets, whether by one transaction or a number of transactions, whether related or not; or
|
(b) |
any debt payable to it or any other right (present, future or contingent right) to receive a payment, including any right to damages or compensation,
|
19.5 |
Merger
|
19.6 |
Change of business
|
19.7 |
Acquisition of further tonnage
|
19.8 |
Share capital
|
19.9 |
Dividends
|
19.10 |
Investments
|
(a) |
provide any form of credit or financial assistance to any person
Provided that
this shall not prevent or restrict the Borrower from (i) on lending loans to other Obligors for the purposes permitted in accordance with the terms of this Agreement and (ii) intra-group indebtedness between the Obligors;
|
(a) |
acquire any shares or other securities.
|
19.11 |
Hedging
|
19.12 |
No Joint Venture
|
19.13 |
Intentionally omitted
|
19.14 |
Further assurance
|
(a) |
Each Obligor shall promptly, and in any event within the time period specified by the Security Trustee do all such acts (including procuring or arranging any registration, notarisation or authentication or the giving of any notice) or execute or procure execution of all such documents (including assignments, transfers, mortgages, charges, notices, instructions, acknowledgments, proxies and powers of attorney), as the Security Trustee may specify (and in such form as the Security Trustee may require in favour of the Security Trustee or its nominee(s)):
|
(i) |
to create, perfect, vest in favour of the Security Trustee or protect the priority of the Security or any right of any kind created or intended to be created under or evidenced by the Finance 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) or for the exercise of any rights, powers and remedies of any of the Finance Parties provided by or pursuant to the Finance Documents or by law;
|
(ii) |
to confer on the Security Trustee or confer on the Finance Parties Security over any property and assets of that Obligor located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Finance Documents;
|
(iii) |
to facilitate or expedite the realisation and/or sale of the transfer of title to or the grant of, any interest in or right relating to the assets which are, or are intended to be, the subject of the Finance Documents or to exercise any power specified in any Finance Document in respect of which the/Security has become enforceable; and/or
|
(iv) |
to enable or assist the Security Trustee to enter into any transaction to commence, defend or conduct any proceedings and/or to take any other action relating to any of the Finance Documents.
|
(b) |
Each Obligor shall 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 conferred or intended to be conferred on the Security Trustee by or pursuant to the Finance Documents.
|
(c) |
At the same time as an Obligor delivers to the Security Trustee any document executed by itself pursuant to this Clause 19.14, that Obligor shall deliver to the Security Trustee a certificate signed by two of that Obligor's directors or officers which shall:
|
(i) |
Set out the text of a resolution of that Obligor's directors specifically authorising the execution of the document specified by the Security Trustee; and
|
(ii) |
State that either the resolution was duly passed at a meeting of the directors validly convened and held, throughout which a quorum of directors entitled to vote on the resolution was present, or that the resolution has been signed by all the directors or officers and is valid under the Obligor's articles of association or other constitutional documents.
|
19.15 |
Listing
|
20 |
INSURANCE
|
20.1 |
Definitions
|
(a) |
In this Clause 20:
|
(b) |
In this Clause 20, a reference to "
approved
" means approved in writing by the Agent acting on the instructions of the Lenders.
|
20.2 |
Maintenance of obligatory insurances
|
(a) |
fire and usual marine risks (including hull and machinery and excess risks);
|
(b) |
war risks;
|
(c) |
protection and indemnity risks (without any exclusion for any Environmental Incident); and
|
(d) |
any other risks against which the Agent acting on the instructions of the Lenders considers, having regard to practices and other circumstances prevailing at the relevant time, it would be reasonable for that Guarantor to insure and which are specified by the Agent by notice to that Guarantor.
|
20.3 |
Terms of obligatory insurances
|
(a) |
in dollars;
|
(b) |
in the case of fire and usual marine risks and war risks, in an amount on an agreed value basis at least the greater of:
|
(i) |
together with the other Ships then subject to a Mortgage, 120% of the Loan and the Discount Premium Amount (and the Senior Loan and the Senior Discount Premium Amount); and
|
(ii) |
the market value of the Ship owned by it;
|
(c) |
in the case of oil pollution liability risks, for an aggregate amount equal to the highest level of cover from time to time available under basic protection and indemnity club entry and in the international marine insurance market;
|
(d) |
in the case of protection and indemnity risks, in respect of the full tonnage of the Ship owned by it;
|
(e) |
on approved terms; and
|
(f) |
through approved brokers and with approved insurance companies and/or underwriters or, in the case of war risks and protection and indemnity risks, in approved war risks and protection and indemnity risks associations.
|
20.4 |
Further protections for the Finance Parties
|
(a) |
whenever the Agent requires, name (or be amended to name) the Security Trustee as additional named assured for its rights and interests, warranted no operational interest and with full waiver of rights of subrogation against the Security Trustee, but without the Security Trustee thereby being liable to pay (but having the right to pay) premiums, calls or other assessments in respect of such insurance;
|
(b) |
name the Security Trustee as loss payee with such directions for payment as the Agent may specify;
|
(c) |
provide that all payments by or on behalf of the insurers under the obligatory insurances to the Security Trustee shall be made without set‑off, counterclaim or deductions or condition whatsoever;
|
(d) |
provide that such obligatory insurances shall be primary without right of contribution from other insurances which may be carried by the Security Trustee or any other Finance Party; and
|
(e) |
provide that the Security Trustee may make proof of loss if the Guarantor concerned fails to do so.
|
20.5 |
Renewal of obligatory insurances
|
(a) |
at least 14 days before the expiry of any obligatory insurance effected by it:
|
(i) |
notify the Agent of the brokers (or other insurers) and any protection and indemnity or war risks association through or with which that Guarantor proposes to renew that obligatory insurance and of the proposed terms of renewal; and
|
(ii) |
obtain the Agents' approval to the matters referred to in paragraph (a) (i) above;
|
(b) |
at least 7 days before the expiry of any obligatory insurance effected by it, renew that obligatory insurance in accordance with the Agent's approval pursuant to paragraph (a) above; and
|
(c) |
procure that the approved brokers and/or the approved war risks and protection and indemnity associations with which such a renewal is effected shall promptly after the renewal notify the Agent in writing of the terms and conditions of the renewal.
|
20.6 |
Copies of policies; letters of undertaking
|
(a) |
they will have endorsed on each policy, immediately upon issue, a loss payable clause and a notice of assignment complying with the provisions of Clause 20.4 (
Further protections for the Finance Parties
);
|
(b) |
they will hold such policies, and the benefit of such insurances, to the order of the Security Trustee in accordance with such loss payable clause;
|
(c) |
they will advise the Agent immediately of any material change to the terms of the obligatory insurances;
|
(d) |
they will notify the Agent, not less than 7 days before the expiry of the obligatory insurances, in the event of their not having received notice of renewal instructions from that Guarantor or its agents and, in the event of their receiving instructions to renew, they will promptly notify the Agent of the terms of the instructions; and
|
(e) |
they will not set off against any sum recoverable in respect of a claim relating to the Ship owned by that Guarantor under such obligatory insurances any premiums or other amounts due to them or any other person whether in respect of that Ship or otherwise, they waive any lien on the policies, or any sums received under them, which they might have in respect of such premiums or other amounts and they will not cancel such obligatory insurances by reason of non‑payment of such premiums or other amounts, and will arrange for a separate policy to be issued in respect of that Ship forthwith upon being so requested by the Agent.
|
20.7 |
Copies of certificates of entry
|
(a) |
a certified copy of the certificate of entry for that Ship;
|
(b) |
a letter or letters of undertaking in such form as may be required by the Agent acting on the instructions of Lenders; and
|
(c) |
a certified copy of each certificate of financial responsibility for pollution by oil or other Environmentally Sensitive Material issued by the relevant certifying authority in relation to that Ship.
|
20.8 |
Deposit of original policies
|
20.9 |
Payment of premiums
|
20.10 |
Guarantees
|
20.11 |
Compliance with terms of insurances
|
(a) |
each Guarantor shall take all necessary action and comply with all requirements which may from time to time be applicable to the obligatory insurances, and (without limiting the obligation contained in paragraph (c) of Clause 20.6 (
Copies of policies; letters of undertaking
)) ensure that the obligatory insurances are not made subject to any exclusions or qualifications to which the Agent has not given its prior approval;
|
(b) |
no Guarantor shall make any changes relating to the classification or classification society or manager or operator of the Ship owned by it approved by the underwriters of the obligatory insurances;
|
(c) |
if applicable, each Guarantor shall make (and promptly supply copies to the Agent of) all quarterly or other voyage declarations which may be required by the protection and indemnity risks association in which the Ship owned by it is entered to maintain cover for trading to the United States of America and Exclusive Economic Zone (as defined in the United States Oil Pollution Act 1990 or any other applicable legislation); and
|
(d) |
no Guarantor shall employ the Ship owned by it, nor allow it to be employed, otherwise than in conformity with the terms and conditions of the obligatory insurances, without first obtaining the consent of the insurers and complying with any requirements (as to extra premium or otherwise) which the insurers specify.
|
20.12 |
Alteration to terms of insurances
|
20.13 |
Settlement of claims
|
20.14 |
Provision of information
|
(a) |
obtaining or preparing any report from an independent marine insurance broker as to the adequacy of the obligatory insurances effected or proposed to be effected; and/or
|
(b) |
effecting, maintaining or renewing any such insurances as are referred to in Clause 20.15 (
Mortgagee's interest and additional perils insurances
) or dealing with or considering any matters relating to any such insurances,
|
20.15 |
Mortgagee's interest and additional perils insurances
|
21 |
SHIP COVENANTS
|
21.1 |
Ships' names and registration
|
(a) |
keep the Ship owned by it registered in its name under an Approved Flag;
|
(b) |
not do or allow to be done anything as a result of which such registration might be cancelled or imperilled; and
|
(c) |
not change the name of the Ship owned by it without the Agent's prior written consent, such consent not to be unreasonably withheld.
|
21.2 |
Repair and classification
|
(a) |
consistent with first‑class ship ownership and management practice;
|
(b) |
so as to maintain the highest classification available to ships of the same type, specification and age as that Ship with a classification society which is a member of the International Association of Classification Societies free of overdue recommendations and conditions affecting that Ship's class; and
|
(c) |
so as to comply with all laws and regulations applicable to vessels registered on the relevant Approved Flag or to vessels trading to any jurisdiction to which that Ship may trade from time to time, including but not limited to the ISM Code and the ISPS Code.
|
21.3 |
Modification
|
21.4 |
Removal of parts
|
21.5 |
Surveys
|
21.6 |
Inspection
|
21.7 |
Prevention of and release from arrest
|
(a) |
all liabilities which give or may give rise to maritime or possessory liens on or claims enforceable against the Ship owned by it or its Insurances;
|
(b) |
all taxes, dues and other amounts charged in respect of the Ship owned by it or its Insurances; and
|
(c) |
all other outgoings whatsoever in respect of the Ship owned by it or its Insurances,
|
21.8 |
Compliance with laws etc.
|
(a) |
comply, or procure compliance with all laws or regulations relating to the ownership, employment, operation and management of the Ship owned by it, including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions;
|
(b) |
without prejudice to the generality of paragraph (a) of this Clause 21.8, not employ the Ship owned by it nor allow its employment in any manner contrary to any laws or regulations including but not limited to the ISM Code, the ISPS Code, all Environmental Laws and all Sanctions; and
|
(c) |
in the event of hostilities in any part of the world (whether war is declared or not), not cause or permit the Ship owned by it to enter or trade to any zone which is declared a war zone by any government or by that Ship's war risks insurers unless the prior written consent of the Security Trustee acting on the instructions of the Lenders has been given and that Guarantor has (at its expense) effected any special, additional or modified insurance cover which the Security Trustee acting on the instructions of the Lenders may require.
|
21.9 |
Provision of information
|
(a) |
the Ship owned by it, its employment, position and engagements;
|
(b) |
the Earnings of the Ship owned by it and payments and amounts due to its master and crew;
|
(c) |
any expenditure incurred, or likely to be incurred, in connection with the operation, maintenance or repair of the Ship owned by it and any payments made by it in respect of that Ship;
|
(d) |
any towages and salvages; and
|
(e) |
its compliance, the Approved Manager's compliance and the compliance of the Ship owned by it with the ISM Code and the ISPS Code,
|
21.10 |
Notification of certain events
|
(a) |
any casualty to the Ship owned by it which is or is likely to be or to become a Major Casualty;
|
(b) |
any occurrence as a result of which the Ship owned by it has become or is, by the passing of time or otherwise, likely to become a Total Loss;
|
(c) |
any requirement or recommendation made in relation to the Ship owned by it by any insurer or classification society or by any competent authority which is not immediately complied with;
|
(d) |
any arrest or detention of the Ship owned by it, any exercise or purported exercise of any lien on that Ship or its Earnings or any requisition of that Ship for hire;
|
(e) |
any intended dry docking of the Ship owned by it;
|
(f) |
any Environmental Claim made against that Guarantor or in connection with the Ship owned by it, or any Environmental Incident;
|
(g) |
any claim for breach of the ISM Code or the ISPS Code being made against that Guarantor, the Approved Manager or otherwise in connection with the Ship owned by it; or
|
(h) |
any other matter, event or incident, actual or threatened, the effect of which will or could lead to the ISM Code or the ISPS Code not being complied with,
|
21.11 |
Restrictions on chartering, appointment of managers etc.
|
(a) |
let that Ship on demise charter for any period;
|
(b) |
enter into any time or consecutive voyage charter in respect of that Ship for a term which exceeds, or which by virtue of any optional extensions may exceed, 13 months;
|
(c) |
enter into any charter in relation to that Ship under which more than 2 months' hire (or the equivalent) is payable in advance;
|
(d) |
charter that Ship otherwise than on bona fide arm's length terms at the time when that Ship is fixed;
|
(e) |
appoint a manager of that Ship other than the Approved Manager or agree to any alteration to the terms of the Approved Manager's appointment;
|
(f) |
de‑activate or lay up that Ship; or
|
(g) |
put that Ship into the possession of any person for the purpose of work being done upon it in an amount exceeding or likely to exceed $1,000,000 (or the equivalent in any other currency) unless that person has first given to the Security Trustee and in terms satisfactory to it a written undertaking not to exercise any lien on that Ship or its Earnings for the cost of such work or for any other reason other than any Permitted Security.
|
21.12 |
Notice of Mortgage
|
21.13 |
Sharing of Earnings
|
21.14 |
Sanctions and Ship Trading
|
(a) |
that no Ship shall be used by or for the benefit of a Prohibited Person;
|
(b) |
that no Ship shall be used in trading in any manner contrary to Sanctions (or which could be contrary to Sanctions if Sanctions were binding on each Obligor);
|
(c) |
that no Ship shall be traded in any manner which would trigger the operation of any sanctions limitation or exclusion clause (or similar) in the Insurances; and
|
(d) |
that each charterparty in respect of a Ship shall contain, for the benefit of the relevant Obligor, language which gives effect to the provisions of paragraph (c) of Clause 21.8 (
Compliance with laws etc.
) as regards Sanctions and of this Clause 21.14 (
Sanctions and Ship trading
) and which permits refusal of employment or voyage orders if compliance would result in a breach of Sanctions (or which would result in a breach of Sanctions if Sanctions were binding on each Obligor).
|
22 |
APPLICATION OF EARNINGS
|
22.1 |
Payment of Earnings
|
23 |
EVENTS OF DEFAULT
|
23.1 |
Non-payment
|
(a) |
its failure to pay is caused by administrative or technical error; and
|
(b) |
payment is made within 2 Business Days of its due date.
|
23.2 |
Certain obligations
|
23.3 |
Other obligations
|
(a) |
An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 23.1 (
Non-payment
) and Clause 23.2 (
Certain obligations
)).
|
(b) |
No Event of Default under paragraph (a) above will occur if the failure to comply is capable of remedy and is remedied within 10 days of the earlier of (A) the Agent giving notice to the Borrower and (B) the Borrower becoming aware of the failure to comply.
|
23.4 |
Misrepresentation
|
23.5 |
Cross default
|
(a) |
Any Financial Indebtedness of any member of the Group is not paid when due nor within any originally applicable grace period.
|
(b) |
Any Financial Indebtedness of any member of the Group is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c) |
Any commitment for any Financial Indebtedness of any member of the Group is cancelled or suspended by a creditor of any member of the Group as a result of an event of default (however described).
|
(d) |
Any creditor of any member of the Group becomes entitled to declare any Financial Indebtedness of any member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).
|
23.6 |
Insolvency
|
(a) |
A member of the Group is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b) |
The value of the assets of any member of the Group is less than its liabilities (taking into account contingent and prospective liabilities).
|
(c) |
A moratorium is declared in respect of any indebtedness of any member of the Group.
|
23.7 |
Insolvency proceedings
|
(a) |
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any member of the Group other than a solvent liquidation or reorganisation of any member of the Group which is not an Obligor;
|
(b) |
a composition, compromise, assignment or arrangement with any creditor of any member of the Group;
|
(c) |
the appointment of a liquidator (other than in respect of a solvent liquidation of a member of the Group which is not an Obligor), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any member of the Group or any of its assets; or
|
(d) |
enforcement of any Security over any assets of any member of the Group,
|
23.8 |
Creditors' process
|
23.9 |
Ownership of the Obligors
|
23.10 |
Unlawfulness
|
23.11 |
Ranking of security
|
23.12 |
Repudiation
|
23.13 |
Material adverse change
|
23.14 |
Acceleration
|
(a) |
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
(b) |
declare that all or part of the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents and the Discount Premium Amount be immediately or in accordance with the terms of such notice due and payable, whereupon they shall become immediately due and payable; and/or
|
(c) |
declare that all or part of the Loan and the Discount Premium Amount be payable on demand, whereupon they shall immediately become payable on demand by the Agent acting on the instructions of the Lenders.
|
23.15 |
Enforcement of security
|
24 |
CHANGES TO THE LENDERS
|
24.1 |
Assignments and transfers by the Lenders
|
(a) |
assign any of its rights; or
|
(b) |
transfer by novation any of its rights and obligations,
|
24.2 |
Conditions of assignment or transfer
|
(a) |
An assignment will only be effective on:
|
(i) |
receipt by the Agent (whether in the Assignment Agreement or otherwise) of written confirmation from the New Lender (in form and substance satisfactory to the Agent) that the New Lender will assume the same obligations to the other Finance Parties as it would have been under if it was a Lender; and
|
(ii) |
performance by the Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to such assignment to a New Lender, the completion of which the Agent shall promptly notify to the Existing Lender and the New Lender.
|
(b) |
A transfer will only be effective if the procedure set out in Clause 24.5 (
Procedure for transfer
) is complied with.
|
(c) |
If:
|
(i) |
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
(ii) |
as a result of circumstances existing at the date the assignment, transfer or change occurs, an Obligor would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under Clause 12 (
Tax gross-up and indemnities
,
|
(d) |
Each New Lender, by executing the relevant Transfer Certificate or Assignment Agreement, confirms, for the avoidance of doubt, that the 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 transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the Existing Lender would have been had it remained a Lender.
|
24.3 |
Assignment or transfer fee
|
24.4 |
Limitation of responsibility of Existing Lenders
|
(a) |
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
(i) |
the legality, validity, effectiveness, adequacy or enforceability of the Finance Documents or any other documents;
|
(ii) |
the financial condition of any Obligor;
|
(iii) |
the performance and observance by any Obligor of its obligations under the Finance Documents or any other documents; or
|
(iv) |
the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document or any other document,
|
(b) |
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
(i) |
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Finance Document; and
|
(ii) |
will continue to make its own independent appraisal of the creditworthiness of each Obligor and its related entities whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force.
|
(c) |
Nothing in any Finance Document obliges an Existing Lender to:
|
(i) |
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 24; or
|
(ii) |
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor of its obligations under the Finance Documents or otherwise.
|
24.5 |
Procedure for transfer
|
(a) |
Subject to the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
), a transfer is effected in accordance with paragraph (b) below when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent shall, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with this Agreement and delivered in accordance with this Agreement, execute that Transfer Certificate.
|
(b) |
The Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the transfer to such New Lender.
|
(c) |
Subject to Clause 24.9 (
Pro rata interest
settlement), on the Transfer Date:
|
(i) |
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents, each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the "
Discharged Rights and Obligations
");
|
(ii) |
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
(iii) |
the Agent, the Security Trustee, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Security Trustee and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
|
(iv) |
the New Lender shall become a Party as a "Lender".
|
24.6 |
Procedure for assignment.
|
(a) |
Subject to the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
) an assignment may be effected in accordance with paragraph (c) below when the Agent executes an otherwise duly completed Assignment Agreement delivered to it by the Existing Lender and the New Lender. The Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Assignment Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Assignment Agreement.
|
(b) |
The Agent shall only be obliged to execute an Assignment Agreement delivered to it by the Existing Lender and the New Lender once it is satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assignment to such New Lender.
|
(c) |
Subject to Clause 24.9 (
Pro rata interest settlement),
on the Transfer Date:
|
(i) |
the Existing Lender will assign absolutely to the New Lender the rights under the Finance Documents expressed to be the subject of the assignment in the Assignment Agreement;
|
(ii) |
the Existing Lender will be released by each Obligor and the other Finance Parties from the obligations owed by it (the "
Relevant Obligations
") and expressed to be the subject of the release in the Assignment Agreement; and
|
(iii) |
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.
|
(d) |
Lenders may utilise procedures other than those set out in this Clause 24.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 24.5 (
Procedure for transfer
), to obtain a release by that Obligor from the obligations owed to that Obligor by the Lenders nor the assumption of equivalent obligations by a New Lender)
provided that
they comply with the conditions set out in Clause 24.2 (
Conditions of assignment or transfer
).
|
24.7 |
Copy of Transfer Certificate or Assignment Agreement to Borrower
|
24.8 |
Security over Lenders' rights.
In addition to the other rights provided to Lenders under this Clause 24, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Security in or over (whether by way of collateral or otherwise) all or any of its rights under any Finance Document to secure obligations of that Lender including, without limitation:
|
(a) |
any charge, assignment or other Security to secure obligations to a federal reserve or central bank; and
|
(b) |
in the case of any Lender which is a fund, any charge, assignment or other Security 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;
|
(i) |
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Security for the Lender as a party to any of the Finance Documents; or
|
(ii) |
require any payments to be made by any 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.
|
24.9 |
Pro rata interest settlement
|
(a) |
any interest or fees in respect of the relevant participation which are expressed to accrue by reference to the lapse of time shall continue to accrue in favour of the Existing Lender up to but excluding the Transfer Date ("
Accrued Amounts
") and shall become due and payable to the Existing Lender (without further interest accruing on them) on the next due date for payment of interest in accordance with Clause 8.2; and
|
(b) |
the rights assigned or transferred by the Existing Lender will not include the right to the Accrued Amounts, so that, for the avoidance of doubt:
|
(i) |
when the Accrued Amounts become payable, the Accrued Amounts will be payable to the Existing Lender; and
|
(ii) |
the amount payable to the New Lender on that date will be the amount which would, but for the application of this Clause 24.9, have been payable to it on that date, but after deduction of the Accrued Amounts.
|
25 |
CHANGES TO THE OBLIGORS
|
25.1 |
Assignments and transfer by Obligors
|
26 |
ROLE OF THE SERVICING PARTIES
|
26.1 |
Appointment of the Agent
|
(a) |
Each other Finance Party appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b) |
Each other Finance Party authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under, or in connection with, the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
26.2 |
Duties of the Agent
|
(a) |
Subject to paragraph (b) below, the Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(b) |
Without prejudice to Clause 24.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), paragraph (a) above shall not apply to any Transfer Certificate or to any Assignment Agreement.
|
(c) |
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(d) |
If the 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 Lenders.
|
(e) |
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than the Agent) under this Agreement it shall promptly notify the other Finance Parties.
|
(f) |
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.
|
26.3 |
No fiduciary duties
|
(a) |
Neither the Agent nor the Security Trustee shall have any duties or obligations to any person under this Agreement or the other Finance Documents except to the extent that they are expressly set out in those documents; and neither Servicing Party shall have any liability to any person in respect of its obligations and duties under this Agreement or the other Finance Documents except as expressly set out in Clauses 26.5 and 26.6, and as excluded or limited by Clauses 26.12, 26.13, 26.14 and 26.15.
|
(b) |
The provisions of Clause 26.4(a) shall apply even if, notwithstanding and contrary to Clause 26.4(a), any provision of this Agreement or any other Finance Document by operation of law has the effect of constituting the Agent as a fiduciary.
|
26.4 |
Duties of the Security Trustee
|
(a) |
hold the Trust Property on trust for the Finance Parties in accordance with their respective entitlements under the Finance Documents; and
|
(b) |
deal with the Trust Property,
|
26.5 |
Application of receipts
|
26.6 |
Deductions from receipts
|
26.7 |
Agent and Security Trustee the same person
|
26.8 |
Additional statutory rights
|
26.9 |
Perpetuity period
|
26.10 |
Business with the Group
|
26.11 |
Rights and discretions of the Servicing Parties
|
(a) |
Each Servicing Party may rely on:
|
(i) |
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
(ii) |
any statement made by a director, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
(b) |
Each Servicing Party may assume (unless it has received notice to the contrary in its capacity as agent or, as the case may be, trustee for the Lenders) that:
|
(i) |
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (
Non-payment
));
|
(ii) |
any right, power, authority or discretion vested in any Party or the Lenders has not been exercised; and
|
(iii) |
any notice or request made by the Borrower (other than a Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.
|
(c) |
Each Servicing Party may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(d) |
Each Servicing Party may act in relation to the Finance Documents through its personnel and agents.
|
(e) |
Each Servicing Party
may disclose to any other Party any information it reasonably believes it has received as agent or security trustee under this Agreement.
|
(f) |
Notwithstanding any other provision of any Finance Document to the contrary, no Servicing Party 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 duty of confidentiality.
|
26.12 |
Lenders' instructions
|
(a) |
Unless a contrary indication appears in a Finance Document, each Servicing Party shall:
|
(i) |
exercise any right, power, authority or discretion vested in it as Servicing Agent in accordance with any instructions given to it by the Lenders (or, if so instructed by the Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent or the Security Trustee); and
|
(ii) |
not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Lenders.
|
(b) |
Unless a contrary indication appears in a Finance Document, any instructions given by the Lenders will be binding on all the Finance Parties.
|
(c) |
Each Servicing Party may refrain from acting in accordance with the instructions of the Lenders (or, if appropriate, the Lenders) until it has received such security as it may require
|
(d) |
In the absence of instructions from the Lenders (or, if appropriate, the Lenders), each Servicing Party may act (or refrain from taking action) as it considers to be in the best interest of the Lenders.
|
(e) |
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
26.13 |
Responsibility for documentation
|
(a) |
is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, the Security Trustee, an Obligor or any other person given in, or in connection with, any Finance Document or the Information Memorandum; or
|
(b) |
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into or made or executed in anticipation of, or in connection with, any Finance Document; or
|
(c) |
is responsible for 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 applicable law or regulation relating to insider dealing or otherwise.
|
26.14 |
Exclusion of liability
|
(a) |
Without limiting paragraph (b) below, neither Servicing Party will be liable (including, without limitation, for negligence or any other category of liability whatsoever) for any action taken by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct.
|
(b) |
No Party may take any proceedings against any officer, employee or agent of a Servicing Party in respect of any claim it might have against the Servicing Party concerned or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and each officer, employee or agent of a Servicing Party may rely on this Clause subject to Clause 1.4 (
Third party rights
) and the provisions of the Third Parties Act.
|
(c) |
A Servicing Party 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 it if it has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by it for that purpose.
|
(d) |
Nothing in this Agreement shall oblige either Servicing Party to carry out any "know your customer" or other checks in relation to any person on behalf of any Lender and each Lender confirms to each Servicing Party that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Agent, the Security Trustee.
|
26.15 |
Lenders' indemnity to the Servicing Parties
|
26.16 |
Resignation of a Servicing Party
|
(a) |
A Servicing Party may resign and appoint one of its Affiliates as successor by giving notice to the other Finance Parties and the Borrower.
|
(b) |
Alternatively, a Servicing Party may resign by giving 30 days' notice to the other Finance Parties and the Borrower, in which case the Lenders may appoint a successor Agent or Security Trustee.
|
(c) |
If the Lenders have not appointed a successor Agent or Security Trustee in accordance with paragraph (b) above within 20 days after notice of resignation was given, the retiring Agent or Security Trustee may appoint a successor Agent or Security Trustee.
|
(d) |
The retiring Agent or Security Trustee shall, at its own cost, make available to the successor Agent or Security Trustee such documents and records and provide such assistance as the successor Agent or Security Trustee may reasonably request for the purposes of performing its functions as Agent or Security Trustee under the Finance Documents.
|
(e) |
A Servicing Party's resignation notice shall only take effect upon the appointment of a successor.
|
(f) |
Upon the appointment of a successor, the retiring Servicing Party shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 26. Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g) |
The Lenders may, by notice to a Servicing Party, require it to resign in accordance with paragraph (b) above. In this event, the Servicing Party shall resign in accordance with paragraph (b) above.
|
26.17 |
Confidentiality
|
(a) |
In acting as agent or, as the case may be, trustee for the Finance Parties, a Servicing Party shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments.
|
(b) |
If information is received by a division or department of a Servicing Party other than that division or department responsible for complying with the obligations assumed by that Servicing Party under the Finance Documents, that information may be treated as
|
26.18 |
Relationship with the Lenders
|
(a) |
Subject to Clause 24.9 (
Pro rata Interest Settlement
), the Agent may treat the person shown in its records as Lender at the opening of business (in the place of the Agent's principal office as notified to the Finance Parties from time to time) as the Lender 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) |
Any Lender may by notice to the Agent appoint a person to receive on its behalf all notices, communications, information and documents to be made or despatched to that Lender under the Finance Documents. Such notice shall contain the address, fax number and (where communication by electronic mail or other electronic means is permitted under Clause 31.5 (
Electronic communication
)) electronic mail address and/or any other information required to enable the sending and receipt of information by that means (and, in each case, the department or officer, if any, for whose attention communication is to be made) and be treated as notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 31.2 (
Addresses
) and paragraph (a)(iii) of Clause 31.5 (
Electronic communication
) and the Agent shall be entitled to treat such person as the person entitled to receive all such notices, communications, information and documents as though that person were that Lender.
|
26.19 |
Credit appraisal by the Lenders
|
(a) |
the financial condition, status and nature of each member of the Group;
|
(b) |
the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
|
(c) |
whether that Lender 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; and
|
(d) |
the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent, the Security Trustee, any Party or by any other person 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.
|
26.20 |
Deduction from amounts payable by the Agent
|
26.21 |
Full freedom to enter into transactions
|
(a) |
to enter into and arrange banking, derivative, investment and/or other transactions of every kind with or affecting the Borrower or any person who is party to, or referred to in, a Finance Document (including, but not limited to, any interest or currency swap or other transaction, whether related to this Agreement or not, and acting as syndicate agent and/or security trustee for, and/or participating in, other facilities to the Borrower or any person who is party to, or referred to in, a Finance Document);
|
(b) |
to deal in and enter into and arrange transactions relating to:
|
(i) |
any securities issued or to be issued by the Borrower or any such other person; or
|
(ii) |
any options or other derivatives in connection with such securities; and
|
(c) |
to provide advice or other services to the Borrower or any person who is a party to, or referred to in, a Finance Document,
|
26.22 |
Representations of Lenders
|
(a) |
Certain Fees
|
(b) |
Legend
|
(c) |
Transfer or Resale
|
(d) |
Offering Materials
|
(e) |
Non-U.S. Lender Representations and Warranties
|
(i) |
Offshore Transaction.
|
(ii) |
No Directed Selling Efforts
|
27 |
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
|
(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.
|
28 |
SHARING AMONG THE FINANCE PARTIES
|
28.1 |
Payments to Finance Parties
|
(a) |
the Recovering Finance Party shall, within 3 Business Days, notify details of the receipt or recovery, to the Agent;
|
(b) |
the 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 Agent and distributed in accordance with Clause 29 (
Payment mechanics
),
|
(c) |
the Recovering Finance Party shall, within 3 Business Days of demand by the Agent, pay to the Agent an amount (the "
Sharing Payment
") equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 29.5 (
Partial payments
).
|
28.2 |
Redistribution of payments
|
28.3 |
Recovering Finance Party's rights
|
28.4 |
Reversal of redistribution
|
(a) |
each Sharing Finance Party shall, upon request of the Agent, pay to the 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.
|
28.5 |
Exceptions
|
(a) |
This Clause 28 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; and
|
(ii) |
the 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.
|
29 |
PAYMENT MECHANICS
|
29.1 |
Payments to the Agent
|
(a) |
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor or Lender shall make the same available to the 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 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 in the principal financial centre of the country of that currency with such bank as the Agent specifies.
|
29.2 |
Distributions by the Agent
|
29.3 |
Distributions to an Obligor
|
29.4 |
Clawback
|
(a) |
Where a sum is to be paid to the Agent under the Finance Documents for another Party, the 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) |
If the Agent pays an amount to another Party and it proves to be the case that the 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 Agent shall on demand refund the same to the Agent together with interest on that amount from the date of payment to the date of receipt by the Agent, calculated by the Agent to reflect its cost of funds.
|
29.5 |
Partial payments
|
(a) |
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents unless otherwise provided in this Agreement or in the Intercreditor Agreement in the following order:
|
(i) |
first
, in or towards payment pro rata of any unpaid costs and expenses (including legal fees) of the Agent and the Security Trustee under the Finance Documents;
|
(ii) |
secondly
, in or towards payment pro rata of any accrued interest or fees due but unpaid under this Agreement;
|
(iii) |
thirdly
, in or towards payment pro rata of any principal due in respect of the Loan but unpaid under this Agreement;
|
(iv) |
fourthly
, in or towards payment of any amount unpaid in respect of the Discount Premium Amount;
|
(v) |
fifthly
, in release to the Borrower.
|
(b) |
Paragraph (a) above will override any appropriation made by an Obligor.
|
29.6 |
No set-off by Obligors
|
29.7 |
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 an Unpaid Sum under this Agreement interest is payable on the principal at the rate payable on the original due date.
|
29.8 |
Currency of account
|
(a) |
Subject to paragraphs (b) to (c) below, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b) |
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(c) |
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
|
29.9 |
Change of currency
|
(a) |
Unless otherwise prohibited by law, if more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:
|
(i) |
any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Agent (after consultation with the Borrower); and
|
(ii) |
any translation from one currency or currency unit to another shall be at the official rate of exchange recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Agent (acting reasonably).
|
(b) |
If a change in any currency of a country occurs, this Agreement will, to the extent the Agent (acting reasonably and after consultation with the Borrower) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Interbank Market and otherwise to reflect the change in currency.
|
30 |
SET-OFF
|
31 |
NOTICES
|
31.1 |
Communications in writing
|
31.2 |
Addresses
|
(a) |
in the case of the Borrower, that identified with its name below;
|
(b) |
in the case of each Lender or any other Obligor, that notified in writing to the Agent on or before the date on which it becomes a Party;
|
(c) |
in the case of the Agent, that identified with its name below; and
|
(d) |
in the case of the Security Trustee, that identified with its name below,
|
31.3 |
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:
|
(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 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 Agent or the Security Trustee will be effective only when actually received by the Agent or the Security Trustee and then only if it is expressly marked for the attention of the department or officer identified with the Agent's or the Security Trustee's signature below (or any substitute department or officer as the Agent or the Security Trustee shall specify for this purpose).
|
(c) |
All notices from or to an Obligor shall be sent through the Agent.
|
(d) |
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 Obligors.
|
31.4 |
Notification of address and fax number
|
31.5 |
Electronic communication
|
(a) |
Any communication to be made between the Agent and a Lender under or in connection with the Finance Documents may be made by electronic mail or other electronic means, if the Agent and the relevant Lender:
|
(i) |
agree that, unless and until notified to the contrary, this is to be an accepted form of communication;
|
(ii) |
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
|
(iii) |
notify each other of any change to their address or any other such information supplied by them.
|
(b) |
Any electronic communication made between the Agent and a Lender will be effective only when actually received in readable form and in the case of any electronic communication made by a Lender to the Agent only if it is addressed in such a manner as the Agent shall specify for this purpose.
|
31.6 |
English language
|
(a) |
Any notice given under or in connection with any Finance Document must be in English.
|
(b) |
All other documents provided under or in connection with any Finance Document must be:
|
(i) |
in English; or
|
(ii) |
if not in English, and if so required by the 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.
|
32 |
CALCULATIONS AND CERTIFICATES
|
32.1 |
Accounts
|
32.2 |
Certificates and determinations
|
32.3 |
Day count convention
|
33 |
PARTIAL INVALIDITY
|
34 |
REMEDIES AND WAIVERS
|
35 |
AMENDMENTS AND WAIVERS
|
35.1 |
Required consents
|
(a) |
Subject to Clause 35.2 (
Exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Lenders and the Obligors and any such amendment or waiver will be binding on all Parties.
|
(b) |
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
|
35.2 |
Exceptions
|
(a) |
An amendment or waiver that has the effect of changing or which relates to:
|
(i) |
a postponement to the date of payment of any amount under the Finance Documents;
|
(ii) |
a reduction in the amount of any payment of principal, interest, fees or commission payable;
|
(iii) |
an increase in any Commitment;
|
(iv) |
a change to the Borrower or Guarantors other than in accordance with Clause 25 (
Changes to the Obligors
);
|
(v) |
any provision which expressly requires the consent of all the Lenders;
|
(vi) |
Clause 2.2 (
Finance Parties' rights and obligations
), Clause 24 (
Changes to the Lenders
) or this Clause 35 (
Amendment and waivers
); or
|
(vii) |
the nature or scope of the guarantee and indemnity granted under Clause 15 (
Guarantee and Indemnity
),
|
(b) |
An amendment or waiver which relates to the rights or obligations of the Agent or the Security Trustee (each in their capacity as such) may not be effected without the consent of the Agent, the Security Trustee.
|
36 |
CONFIDENTIALITY
|
36.1 |
Confidential Information
. Each Finance Party agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by Clause 36.2 (
Disclosure of Confidential Information
) and Clause 36.3 (
Disclosure to numbering service providers
), and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
|
36.2 |
Disclosure of Confidential Information
. Any Finance Party may disclose:
|
(a) |
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners and Representatives such Confidential Information as that Finance Party shall consider appropriate if any person to whom the Confidential Information is to be given pursuant to this paragraph (a) is informed in writing of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no such requirement to so inform if the recipient is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by requirements of confidentiality in relation to the Confidential Information;
|
(b) |
to any person:
|
(i) |
to (or through) whom it assigns or transfers (or may potentially assign or transfer) all or any of its rights and/or obligations under one or more Finance Documents and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(ii) |
with (or through) whom it enters into (or may potentially enter into), whether directly or indirectly, any sub-participation in relation to, or any other transaction under which payments are to be made or may be made by reference to, one or more Finance Documents and/or one or more Obligors and to any of that person's Affiliates, Related Funds, Representatives and professional advisers;
|
(iii) |
appointed by any Finance Party or by a person to whom paragraph (b)(i) or (ii) above applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under paragraph (c) of Clause 26.18 (
Relationship with the Lenders
));
|
(iv) |
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in paragraph (b)(i) or (b)(ii) above;
|
(v) |
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law, rule or regulation including without limitation the rules or regulations of the United States Securities and Exchange Commission;
|
(vi) |
to whom or for whose benefit that Finance Party chargers, assigns or otherwise creates Security (or may do so) pursuant to Clause 24.8 (
Security over Lenders' rights
);
|
(vii) |
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitrations, administrative or other investigations, proceedings or disputes;
|
(viii) |
who is a Party; or
|
(ix) |
with the consent of the Borrower;
|
(A) |
in relation to paragraphs (b)(i), (b)(ii) and b(iii) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking except that there shall be no requirement for a Confidentiality Undertaking if the recipient is a professional adviser and is subject to professional obligations to maintain the confidentiality of the Confidential Information;
|
(B) |
in relation to paragraph (b)(iv) above, the person to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking or is otherwise bound by requirements of confidentiality in relation to the Confidential Information they receive and is informed that some or all of such Confidential Information may be price-sensitive information;
|
(C) |
in relation to paragraphs (b)(v), (b)(vi) and (b)(vii) above, the person to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of that Finance Party, it is not practicable so to do in the circumstances;
|
(c) |
to any person appointed by that Finance Party or by a person to whom paragraph (b)(i) or (b)(ii) above applies to provide administration or settlement services in respect of one or more of the Finance Documents including without limitation, in relation to the trading of
|
(d) |
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors if the rating agency to whom the Confidential Information is to be given is informed of its confidential nature and that some or all of such Confidential Information may be price-sensitive information.
|
(e) |
to any investor or potential investor in a securitisation (or similar transaction of broadly equivalent economic effect of that Finance Party's rights and obligations under the Finance Documents) the size and term of the Facility and the name of each of the Obligors.
|
36.3 |
Disclosure to numbering service providers.
|
(a) |
Any Finance Party may disclose to any national or international numbering service provider appointed by that Finance Party to provide identification numbering services in respect of this Agreement, the Facility and/or one or more Obligors the following information:
|
(i) |
names of Obligors;
|
(ii) |
country of domicile of Obligors;
|
(iii) |
place of incorporation of Obligors;
|
(iv) |
date of this Agreement;
|
(v) |
the name of the Agent;
|
(vi) |
date of each amendment and restatement of this Agreement;
|
(vii) |
amount of Total Commitments;
|
(viii) |
currency of the Facility;
|
(ix) |
type of Facility;
|
(x) |
ranking of Facility;
|
(xi) |
Termination Date for Facility;
|
(xii) |
changes to any of the information previously supplied pursuant to paragraphs (i) to (xi) above; and
|
(xiii) |
such other information agreed between such Finance Party and the Borrower,
|
(b) |
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Facility and/or one or more Obligors by a numbering service provider and the information associated with each such number may be disclosed to users of its services in accordance with the standard terms and conditions of that numbering service provider.
|
(c) |
Each Obligor represents that none of the information set out in paragraphs (i) to (xiii) of paragraph (a) above is, nor will at any time be, unpublished price-sensitive information.
|
(d) |
The Agent shall notify the Borrower and the other Finance Parties of:
|
(i) |
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Facility and/or one or more Obligors; and
|
(ii) |
the number or, as the case may be, numbers assigned to this Agreement, the Facility and/or one or more Obligors by such numbering service provider.
|
36.4 |
Entire agreement.
This Clause 36 (
Confidentiality
) constitutes the entire agreement between the Parties in relation to the obligations of the Finance Parties under the Finance Documents regarding Confidential Information and supersedes any previous agreement, whether express or implied, regarding Confidential Information.
|
36.5 |
Inside information.
Each of the Finance Parties acknowledges that some or all of the Confidential Information is or may be price-sensitive information and that the use of such information may be regulated or prohibited by applicable legislation including securities law relating to insider dealing and market abuse and each of the Finance Parties undertakes not to use any Confidential Information for any unlawful purpose.
|
36.6 |
Notification of disclosure
. Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrower:
|
(a) |
of the circumstances of any disclosure of Confidential Information made pursuant to paragraph (b)(v) of Clause 36.2 (
Disclosure of Confidential Information
) except where such disclosure is made to any of the persons referred to in that paragraph during the ordinary course of its supervisory or regulatory function; and
|
(b) |
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 36 (
Confidentiality
).
|
36.7 |
Continuing obligations.
The obligations in this Clause 36 (
Confidentiality
) are continuing and , in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:
|
(a) |
the date on which all amounts payable by the Obligors under or in connection with this Agreement have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and
|
(b) |
the date on which such Finance Party otherwise ceased to be a Finance Party.
|
37 |
COUNTERPARTS
|
38 |
GOVERNING LAW
|
39 |
ENFORCEMENT
|
39.1 |
Jurisdiction
|
(a) |
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "
Dispute
").
|
(b) |
The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c) |
This Clause 39.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
39.2 |
Service of process
|
(a) |
irrevocably appoints Nicolaou & Co at its registered office for the time being (presently at 25 Heath Drive, Potters Bar, Herts, EN6 1EN, England) as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
|
(b) |
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
40 |
INTERCREDITOR AGREEMENT; CONFLICTS
|
Name of Borrower
|
Place of Incorporation/ Registered office
|
|
Diana Containerships Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Name of Guarantor
|
Place of Incorporation/ Registered office
|
|
Likiep Shipping Company Inc.
|
||
Orangina Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Mago Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
Dud Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Rongerik Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Langor Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Meck Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Eluk Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Oruk Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
Delap Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Jabor Shipping Company Inc.
|
Marshall Islands
Trust Company Complex Ajeltake Island PO Box 1405 Majuro Marshall Islands MH96960 |
|
Name of Lender
|
Lending Office
|
Loan Commitment
|
Diana Shipping Inc.
|
(t/b/a)
|
$82,616,666.66
|
|
1 |
Obligors
|
(a) |
A copy of the constitutional documents of each Obligor.
|
(b) |
A copy of a resolution of the executive committee of the Borrower and the board of directors of each Guarantor:
|
(i) |
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
(ii) |
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
(iii) |
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, a Utilisation Request) to be signed and/or despatched by it under, or in connection with, the Finance Documents to which it is a party.
|
(c) |
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
|
(d) |
A copy of a resolution signed by all the holders of the issued shares in each Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Guarantor is a party.
|
(e) |
A certificate of an authorised signatory of the relevant Obligor certifying that each copy document relating to it specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2 |
Notes
|
(a) |
A duly executed original of the Notes.
|
3 |
Ships and other security
|
(a) |
A duly executed original of the Mortgage and of the Insurance Assignment relating to each Ship together with documentary evidence that the Mortgage relating to each Ship has been duly registered as a valid preferred ship mortgage in accordance with the laws of the relevant Approved Flag State.
|
(b) |
Documentary evidence that each Ship:
|
(i) |
is definitively and permanently registered in the name of a Guarantor under an Approved Flag;
|
(ii) |
is in the absolute and unencumbered ownership of a Guarantor save as contemplated by the Finance Documents;
|
(iii) |
maintains the highest classification available to ships of the same type, specification and age of such Ship with a classification society which is a member of the International Association of Classification Societies free of all overdue recommendations and conditions of such classification society affecting class; and
|
(iv) |
is insured in accordance with this Agreement and all requirements therein in respect of insurances have been complied with.
|
(c) |
A duly executed original of the Intercreditor Agreement.
|
4 |
Other documents and evidence
|
(a) |
Evidence that any process agent referred to in Clause 39.2 (
Service of process
) has accepted its appointment.
|
(b) |
A copy of any other Authorisation or other document, opinion or assurance which the Agent considers to be necessary or desirable (if it has notified the Borrower accordingly) 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.
|
(c) |
The financial statements of the Borrower for the fiscal year ending 31 December 2016 and the fiscal quarter ending 31 March 2017 (provided that public filings made with the SEC containing such financial statements are deemed to have been delivered to the Agent).
|
(d) |
Evidence that the fees, costs and expenses then due from the Borrower pursuant to Clause 11 (
Fees
) and Clause 14 (
Costs and expenses
) have been paid or will be paid by the Utilisation Date.
|
(e) |
Such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself) in order for the Agent or such Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws, regulations and internal guidelines pursuant to the transactions contemplated in the Finance Documents.
|
(f) |
Certified copies of each of the Warrants and the terms and conditions attaching to the Warrants.
|
5 |
Refinancing Mechanics
|
1 |
Ships and other security
|
(a) |
Documents establishing that each Ship will, as from the first Utilisation Date, be managed by the Approved Manager on terms acceptable to the Lenders, together with:
|
(i) |
a letter of undertaking (which shall constitute a Finance Document) executed by the Approved Manager in favour of the Security Trustee in terms required by the Agent subordinating the rights of the Approved Manager against the Obligors to the rights of the Finance Parties under the Finance Documents; and
|
(ii) |
copies of the Approved Manager's Document of Compliance and of each Ship's Safety Management Certificate (together with any other details of the applicable safety management system which the Agent requires) and ISSC.
|
(b) |
A duly executed original of the Proceeds Assignment together with such documents and evidence as shall be required pursuant thereto.
|
(c) |
A duly executed original of a Share Security in respect of each Guarantor (and of each document to be delivered under each such Share Security).
|
1 |
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2 |
We wish to borrow the Loan on the following terms:
|
Proposed Utilisation Date:
|
[
l
] (or, if that is not a Business Day, the next Business Day)
|
Amount:
|
[
l
]
|
3 |
We confirm that each condition specified in Clause [
l
] (
conditions precedent
) of the Agreement is satisfied on the date of this Utilisation Request.
|
4 |
The proceeds of this Loan should be credited to [
account
].
|
5 |
This Utilisation Request is irrevocable.
|
From: |
[
The Existing Lender
] (the "
Existing Lender
") and [
The New Lender
] (the "
New Lender
")
|
1 |
We refer to the Agreement. This is a Transfer Certificate. Terms defined in the Agreement have the same meaning in this Transfer Certificate unless given a different meaning in this Transfer Certificate.
|
2 |
We refer to Clause 24.5 (
Procedure for transfer
) of the Agreement:
|
(a) |
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation all or part of the Existing Lender's Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (
Procedure for transfer
) of the Agreement.
|
(b) |
The proposed Transfer Date is [
l
].
|
(c) |
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 31.2 (
Addresses
) of the Agreement are set out in the Schedule.
|
3 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (
Limitation of responsibility of Existing Lenders
) of the Agreement.
|
4 |
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
5 |
This Transfer Certificate is governed by English law.
|
6 |
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
[
Existing Lender
]
|
[
New Lender
]
|
By:[
l
]
|
By:[
l
]
|
From: |
[the
Existing Lender
] (the "
Existing Lender
") and [the
New Lender
] (the "
New Lender
")
|
1 |
We refer to the Agreement. This is an Assignment Agreement. Terms defined in the Agreement have the same meaning in this Assignment Agreement unless given a different meaning in this Assignment Agreement.
|
2 |
We refer to Clause 27.6 (
Procedure for assignment
):
|
(a) |
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement as specified in the Schedule.
|
(b) |
The Existing Lender is released from all the obligations of the Existing Lender which correspond to that portion of the Existing Lender's Commitments and participations in the Loan under the Agreement specified in the Schedule.
|
(c) |
The New Lender becomes a Party as a Lender and is bound by obligations equivalent to those from which the Existing Lender is released under paragraph (b) above.
|
3 |
The proposed Transfer Date is [
l
].
|
4 |
On the Transfer Date the New Lender becomes Party to the Finance Documents as a Lender.
|
5 |
The Facility Office and address, fax, number and attention details for notices of the New Lender for the purposes of Clause 31.2 (
Addresses
) are set out in the Schedule.
|
6 |
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in paragraph (c) of Clause 24.4 (
Limitation of responsibility of Existing Lenders
).
|
7 |
This Assignment Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 24.7 (
Copy of Transfer Certificate or Assignment Agreement to Borrower
), to the Borrower (on behalf of each Obligor) of the assignment referred to in this Assignment Agreement.
|
8 |
This Assignment Agreement may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Assignment Agreement.
|
9 |
This Assignment and any non-contractual obligations arising out of or in connection with it are governed by English law.
|
10 |
This Assignment Agreement has been entered into on the date stated at the beginning of this Assignment Agreement.
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
DIANA CONTAINERSHIPS INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
LIKIEP SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
ORANGINA INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
MAGO SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
DUD SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
RONGERIK SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
LANGOR SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
MECK SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
ELUK SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
ORUK SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
DELAP SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Nicholas Kaasik
|
)
|
/s/ Nicholas Kaasik
|
for and on behalf of
|
)
|
|
JABOR SHIPPING COMPANY INC.
|
)
|
|
in the presence of: Sophia Agathis
|
)
|
/s/ Sophia Agathis
|
SIGNED
by Ioannis Zafirakis
|
)
|
/s/ Ioannis Zafirakis
|
for and on behalf of
|
)
|
|
DIANA SHIPPING INC.
|
)
|
|
in the presence of: Margarita Veniou
|
)
|
/s/ Margarita Veniou
|
SIGNED
by Ioannis Zafirakis
|
)
|
/s/ Ioannis Zafirakis
|
for and on behalf of
|
)
|
|
DIANA SHIPPING INC.
|
)
|
|
in the presence of: Margarita Veniou
|
)
|
/s/ Margarita Veniou
|
SIGNED
by Ioannis Zafirakis
|
)
|
/s/ Ioannis Zafirakis
|
for and on behalf of
|
)
|
|
DIANA SHIPPING INC.
|
)
|
|
in the presence of: Margarita Veniou
|
)
|
/s/ Margarita Veniou
|
1 |
Reference is made to the loan agreement dated 2 October 2010 (as amended and supplemented by an amendment agreement dated 15 February 2017 and as further amended and/or supplemented from time to time) (the
Loan Agreement)
and entered into between,
inter alios, (1)
Lae Shipping Company Inc. and Namu Shipping Company Inc. as joint and several borrowers (the
"Borrowers"),
(2) Diana Shipping Inc. as guarantor (the
"Corporate Guarantor"),
(3) DNB Bank ASA (then known as DnB NOR BANK ASA) and The Export-Import Bank of China as arrangers, (4) DNB Bank ASA (then known as DnB NOR BANK ASA) as swap provider, (5) DNB Bank ASA (then known as DnB NOR BANK ASA) as security agent (the
"Security Agent"),
agent (the
"Agent")
and account bank and (6) the banks and financial institutions referred to therein as lenders (the
"Banks"),
in relation to a loan of up to $82,600,000.
|
2 |
Words and expressions defined in the Loan Agreement shall, unless the context otherwise requires or unless otherwise defined herein, have the same meanings when used in this Agreement.
|
3 |
The Creditors hereby agree, following the Borrowers' request, that, with effect from the date of this Agreement:
|
(a) |
clauses 4.1.3, 4.1.4 and 4.5 of the Loan Agreement shall be amended (and are hereby amended) so as to read as follows:
|
(b) |
the following new clause 4.5.4 shall be (and is hereby) added before the existing clause 4.5.4 of the Loan Agreement, and the existing clauses 4.5.4 and 4.5.5 shall be renumbered (and are hereby renumbered) as clauses 4.5.5. and 4.5.6 respectively:
|
4 |
The consent of the Creditors referred to in paragraph 3 above is given only on the condition and in consideration of the Borrowers and the Corporate Guarantor hereby agreeing with the Creditors that the Borrowers and the other Security Parties will comply or will procure compliance with the following terms at the times specified below:
|
(a) |
by no later than 18 May 2017, the Borrowers and the other Security Parties shall have executed this Agreement by signatories acceptable to the Agent in all respects;
|
(b) |
by no later than 23 May 2017, the Borrowers and the other Security Parties deliver to the Agent, such corporate authorisations or other evidence of the authority of each Security Party, in relation to the execution of this Agreement, in such form as the Agent may require in its absolute discretion; and
|
(c) |
by no later than 24 May 2017, each Borrower executes in favour of the Security Agent, in respect of its Ship, an addendum to the Mortgage of such Ship (each a
"Mortgage Addendum"
and together the
"Mortgage Addenda")
in form and substance satisfactory to the Agent and procures that each such Mortgage Addendum has been duly recorded with the relevant Registry of each such Ship.
|
5 |
Failure by the Borrowers and the other Security Parties to comply with any of the above conditions at the times specified above will constitute an Event of Default under the Loan Agreement.
|
6 |
This Agreement is supplemental to the Loan Agreement.
|
7 |
This Agreement constitutes a Security Document.
|
8 |
Save as amended or deemed amended by this Agreement, the provisions of the Loan Agreement shall continue in full force and effect and the Loan Agreement and this Agreement shall be read and construed as one instrument.
|
9 |
Each of the Borrowers, the Corporate Guarantor and the Manager hereby confirms its consent to the amendments to the Loan Agreement hereunder and the other arrangements contained in this Agreement, and further acknowledges and agrees that the Security Documents to which it is a party and its obligations, shall remain and continue to be in full force and effect notwithstanding the said amendments to the Loan Agreement and the other arrangements contained in this Agreement.
|
10 |
The provisions of clauses 17
(Notices)
and 18
(Governing law and jurisdiction)
of the Loan Agreement shall be incorporated into this Agreement as if set out in full herein and as if references to "this Agreement" were references to this Agreement.
|
11 |
This Agreement and any non-contractual obligations in connection with this Agreement are governed by, and shall be construed in accordance with English law.
|
EXECUTED
as a
DEED
|
)
|
|
By Margarita Veniou
|
)
|
|
for and on behalf of
|
)
|
/s/ Margarita Veniou
|
LAE SHIPPING COMPANY INC.
|
)
|
|
as Borrower
|
)
|
|
in the presence of:
|
||
/s/ Ioannis Zafirakis
|
||
Witness
|
||
Name: Ioannis Zafirakis
|
||
Address:
|
||
Occupation:
|
||
EXECUTED
as a
DEED
|
)
|
|
By Margarita Veniou
|
)
|
|
for and on behalf of
|
)
|
/s/ Margarita Veniou
|
NAMU SHIPPING COMPANY INC.
|
)
|
|
as Borrower
|
)
|
|
in the presence of:
|
||
/s/ Ioannis Zafirakis
|
||
Witness
|
||
Name: Ioannis Zafirakis
|
||
Address:
|
||
Occupation:
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ioannis Zafirakis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ioannis Zafirakis
|
DIANA SHIPPING INC.
|
)
|
|
as Corporate Guarantor
|
)
|
|
in the presence of:
|
||
/s/ Margarita Veniou
|
||
Witness
|
||
Name: Margarita Veniou
|
||
Address: PENDELIS 16, 17564 PALAIO FALIRO, ATHENS
|
||
Occupation:
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ioannis Zafirakis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ioannis Zafirakis
|
DIANA SHIPPING SERVICES S.A.
|
)
|
|
as Manager
|
)
|
|
in the presence of:
|
||
/s/ Margarita Veniou
|
||
Witness
|
||
Name: Margarita Veniou
|
||
Address: PENDELIS 16, 17564 PALAIO FALIRO, ATHENS
|
||
Occupation:
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB (UK) LIMITED
|
)
|
Authorised Signatory
|
as Bank
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB BANK ASA (formerly known as DNB NOR BANK ASA)
|
)
|
Authorised Signatory
|
as Arranger
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
EXECUTED
as a
DEED
|
)
|
|
By GAO Zefeng
|
)
|
|
for and on behalf of
|
)
|
/s/ GAO Zefeng
|
THE EXPORT-IMPORT BANK OF CHINA
|
)
|
Authorised Signatory
|
as Manager
|
)
|
|
in the presence of:
|
||
/s/ Luo Weibo
|
||
Witness
|
||
Name: Luo Weibo
|
||
Address: No. 30, FuXingMenNei street, Xicheng District, Beijing 100031, P.R. China
|
||
Occupation: Project Manager
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB BANK ASA (formerly known as DNB NOR BANK ASA)
|
)
|
Authorised Signatory
|
as Swap Provider
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB BANK ASA (formerly known as DNB NOR BANK ASA)
|
)
|
Authorised Signatory
|
as Security Agent
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB BANK ASA (formerly known as DNB NOR BANK ASA)
|
)
|
Authorised Signatory
|
as Agent
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
EXECUTED
as a
DEED
|
)
|
|
By Ariana Georgioupolis
|
)
|
|
for and on behalf of
|
)
|
/s/ Ariana Georgioupolis
|
DNB BANK ASA (formerly known as DNB NOR BANK ASA)
|
)
|
Authorised Signatory
|
as Account Bank
|
)
|
|
in the presence of:
|
||
/s/ Emmanoull Chamilothoris
|
||
Witness
|
||
Name: Emmanouil Chamilothoris
|
||
Address: Associate
|
||
Occupation:Norton Rose Fubright Greece
|
||
Subsidiary
|
Country of Incorporation
|
Aerik Shipping Company Inc.
|
Marshall Islands
|
Ailuk Shipping Company Inc.
|
Marshall Islands
|
Aster Shipping Company Inc.
|
Marshall Islands
|
Bikar Shipping Company Inc.
|
Marshall Islands
|
Bikini Shipping Company Inc.
|
Marshall Islands
|
Bokak Shipping Company Inc.
|
Marshall Islands
|
Ebadon Shipping Company Inc.
|
Marshall Islands
|
Erikub Shipping Company Inc.
|
Marshall Islands
|
Fayo Shipping Company Inc.
|
Marshall Islands
|
Gala Properties Inc.
|
Marshall Islands
|
Guam Shipping Company Inc.
|
Marshall Islands
|
Houk Shipping Company Inc.
|
Marshall Islands
|
Jabat Shipping Company Inc.
|
Marshall Islands
|
Jaluit Shipping Company Inc.
|
Marshall Islands
|
Jemo Shipping Company Inc.
|
Marshall Islands
|
Kaben Shipping Company Inc.
|
Marshall Islands
|
Kili Shipping Company Inc.
|
Marshall Islands
|
Knox Shipping Company Inc.
|
Marshall Islands
|
Lae Shipping Company Inc.
|
Marshall Islands
|
Lelu Shipping Company Inc.
|
Marshall Islands
|
Lib Shipping Company Inc.
|
Marshall Islands
|
Majuro Shipping Company Inc.
|
Marshall Islands
|
Makur Shipping Company Inc.
|
Marshall Islands
|
Mandaringina Inc.
|
Marshall Islands
|
Mejato Shipping Company Inc.
|
Marshall Islands
|
Namu Shipping Company Inc.
|
Marshall Islands
|
Palau Shipping Company Inc.
|
Marshall Islands
|
Pulap Shipping Company Inc.
|
Marshall Islands
|
Rairok Shipping Company Inc.
|
Marshall Islands
|
Rakaru Shipping Company Inc.
|
Marshall Islands
|
Taka Shipping Company Inc.
|
Marshall Islands
|
Taroa Shipping Company Inc.
|
Marshall Islands
|
Toku Shipping Company Inc.
|
Marshall Islands
|
Tuvalu Shipping Company Inc.
|
Marshall Islands
|
Ujae Shipping Company Inc.
|
Marshall Islands
|
Wake Shipping Company Inc.
|
Marshall Islands
|
Weno Shipping Company Inc.
|
Marshall Islands
|
Wotho Shipping Company Inc.
|
Marshall Islands
|
Buenos Aires Compania Armadora S.A.
|
Panama
|
Cerada International SA
|
Panama
|
Changame Compania Armadora S.A.
|
Panama
|
Chorrera Compania Armadora S.A.
|
Panama
|
Cypres Enterprises Corp.
|
Panama
|
Darien Compania Armadora S.A.
|
Panama
|
Diana Ship Management Inc.
|
Panama
|
Diana Shipping Services S.A.
|
Panama
|
Eaton Marine S.A.
|
Panama
|
Husky Trading, S.A.
|
Panama
|
Panama Compania Armadora S.A.
|
Panama
|
Skyvan Shipping Company S.A.
|
Panama
|
Texford Maritime S.A.
|
Panama
|
Urbina Bay Trading, S.A.
|
Panama
|
Vesta Commercial, S.A.
|
Panama
|
Marfort Navigation Company Limited
|
Cyprus
|
Silver Chandra Shipping Company Limited
|
Cyprus
|
Bulk Carriers (USA) LLC
|
United States (Delaware)
|
1. |
I have reviewed this annual report on Form 20-F of Diana Shipping Inc. (the "Company");
|
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 Company as of, and for, the periods presented in this report;
|
4. |
The Company's other certifying officer(s) 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 Company 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 Company, 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 Company'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 Company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting; and
|
5. |
The Company's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company's auditors and the audit committee of the Company'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 Company'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 Company's internal control over financial reporting.
|
1. |
I have reviewed this annual report on Form 20-F of Diana Shipping Inc. (the "Company");
|
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 Company as of, and for, the periods presented in this report;
|
4. |
The Company's other certifying officer(s) 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 Company 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 Company, 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 Company'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 Company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting; and
|
5. |
The Company's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Company's auditors and the audit committee of the Company'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 Company'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 Company's internal control over financial reporting.
|
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities 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.
|
1. |
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities 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.
|