As filed with the Securities and Exchange Commission on June 4, 2021

Registration Statement No. 333–


SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
     

FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
     

DIANA SHIPPING INC.
(Exact name of registrant as specified in its charter)

Republic of the Marshall Islands
(State or other jurisdiction of
incorporation or organization)
 
N/A
(I.R.S. Employer
Identification No.)

Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
011 (30) 210 947-0100
(Address and telephone number of Registrant’s principal executive offices)
 
Seward & Kissel LLP
Attention:  Edward S. Horton, Esq.
One Battery Park Plaza
New York, New York 10004
(212) 574-1200
(Name, address and telephone number of agent for service)

     
 
Copies to:
 
 
Edward S. Horton, Esq.
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
(212) 574-1200 (telephone number)
(212) 480-8421 (facsimile number)
 
     

Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective as determined by market conditions and other factors.
If the only securities being registered on the Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.☐
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.  ☐

If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.


CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered
Amount to be Registered(1)
Proposed Maximum
Aggregate Offering Price(1)(2)
Amount of
Registration Fee(3)(4)
Common stock, par value $0.01 per share
       
Preferred stock purchase rights(5)
       
Preferred stock, par value $0.01 per share
       
Debt securities(6)
       
Warrants(7)
       
Purchase contracts(8)
       
Rights(9)
       
Units(10)
       
Total
 
$750,000,000
$ 27,275

(1)
Such amount in U.S. dollars or the equivalent thereof in foreign currencies as shall result in an aggregate public offering price for all securities of $750,000,000.  Also includes such indeterminate amount of securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above. Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, convertible or exchangeable securities.

(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.  Pursuant to General Instruction II.C. of Form F-3, the table does not specify by each class information as to the proposed maximum aggregate offering price.  Any securities registered hereunder may be sold separately or as units with other securities registered hereunder.  In no event will the aggregate offering price of all securities sold by Diana Shipping Inc. pursuant to this registration statement exceed $750,000,000.

(3)
As discussed below, pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, this registration statement includes a total of $500,000,000 aggregate offering price of unsold securities that were previously registered on a registration statement on Form F-3 (Registration No. 333-225964) and for which the registration fee was previously paid. Accordingly, the $27,275 registration fee shown above has been calculated based on the proposed maximum offering price of the additional $250,000,000 of securities registered on this registration statement.
(4)
Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended.
(5)
Preferred stock purchase rights are not currently separable from the common stock and are not currently exercisable. The value attributable to the preferred stock purchase rights, if any, will be reflected in the market price of the common stock.

(6)
If any debt securities are issued at an original issue discount, then the offering may be in such greater principal amount as shall result in a maximum aggregate offering price not to exceed $750,000,000.

(7)
There is being registered hereunder an indeterminate number of warrants as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $750,000,000.

(8)
There is being registered hereunder an indeterminate number of purchase contracts as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $750,000,000.

(9)
There is being registered hereunder an indeterminate number of rights as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $750,000,000.

(10)
There is being registered hereunder an indeterminate number of units as may from time to time be sold at indeterminate prices not to exceed an aggregate offering price of $750,000,000.  Units may consist of any combination of the securities registered hereunder.


Pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, the securities registered pursuant to this registration statement include $500,000,000 aggregate offering price of unsold securities of the Registrant previously registered on its registration statement on Form F-3 (Registration No. 333-225964), filed with the Securities and Exchange Commission on June 28, 2018, which the Registrant refers to as the Prior Registration Statement. The previously paid filing fee relating to such unsold securities under the Prior Registration Statement will continue to be applied to such unsold securities registered on this registration statement. To the extent that, after the filing date hereof and prior to the effectiveness of this registration statement, any such unsold securities are sold pursuant to the Prior Registration Statement, the registrant will identify in a pre-effective amendment to this registration statement the updated amount of unsold securities from the Prior Registration Statement to be included in this registration statement pursuant to Rule 415(a)(6) and the updated amount of new securities to be registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of the unsold securities registered under the Prior Registration Statement, if not previously terminated, will be deemed terminated as of the date of effectiveness of this Registration Statement.

The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.




The information in this prospectus is not complete and may be changed. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy or sell these securities in any jurisdiction where the offer or sale is not permitted. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective.

Subject to Completion, Dated June 4, 2021

PROSPECTUS

$750,000,000



DIANA SHIPPING INC.

Common Stock, Preferred Stock Purchase Rights, Preferred Stock,
Debt Securities, Warrants, Purchase Contracts, Rights and Units


Through this prospectus, we may periodically offer:

(1) our common stock (including related preferred stock purchase rights),
(2) our preferred stock,
(3) our debt securities,
(4) our warrants,
(5) our purchase contracts,
(6) our rights, and
(7) our units.
We may also offer securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above.
The aggregate offering price of all securities issued and sold under this prospectus may not exceed $750,000,000.  The securities issued and sold under this prospectus may be offered directly or through underwriters, agents or dealers.  The names of any underwriters, agents or dealers will be included in a supplement to this prospectus.  The prices and other terms of the securities issued and sold under this prospectus will be determined at the time of their offering and will be described in a supplement to this prospectus.
Our common stock is listed on the New York Stock Exchange, or the NYSE, under the symbol “DSX.”  Our Series B Preferred Stock is listed on the NYSE under the symbol “DSXPRB.”
An investment in the securities offered hereby involves risks.  See the section entitled “Risk Factors” on page 4 of this prospectus, and other risk factors contained in the applicable prospectus supplement and in the documents incorporated by reference herein and therein.
Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.  Any representation to the contrary is a criminal offense.

The date of this prospectus is                , 2021.



ABOUT THIS PROSPECTUS

This prospectus is part of a registration statement that we filed with the U.S. Securities and Exchange Commission, or the Commission, using the shelf registration process.  Under the shelf registration process, we may sell, from time to time, our common stock (including related preferred stock purchase rights), preferred stock, debt securities, warrants, purchase contracts, rights and units described in this prospectus in one or more offerings up to a total dollar amount of $750,000,000.  This prospectus provides you with a general description of the securities we may offer.  Each time we offer securities, we will provide you with a supplement to this prospectus that will describe the specific information about the securities being offered and the specific terms of that offering.  The prospectus supplement may also add, update or change the information contained in this prospectus.  If there is any inconsistency between the information in this prospectus and any prospectus supplement, you should rely on the prospectus supplement.  Before purchasing any securities, you should read carefully both this prospectus and any prospectus supplement, together with the additional information described below.
This prospectus and any prospectus supplement are part of a registration statement that we filed with the Commission and do not contain all the information in the registration statement.  Forms of the indentures and other documents establishing the terms of the offered securities are filed as exhibits to the registration statement.  Statements in this prospectus or any prospectus supplement about these documents are summaries and each statement is qualified in all respects by reference to the document to which it refers.  You should refer to the actual documents for a more complete description of the relevant matters.  For further information about us or the securities offered hereby, you should refer to the registration statement, which you can obtain from the Commission as described below under the section entitled “Where You Can Find Additional Information.”
You should rely only on the information contained or incorporated by reference in this prospectus and in any prospectus supplement.  We have not authorized any other person to provide you with different information.  If anyone provides you with different or inconsistent information, you should not rely on it.  We will not make any offer to sell these securities in any jurisdiction where the offer or sale is not permitted.  You should assume that the information appearing in this prospectus and the applicable supplement to this prospectus is accurate as of the date on its respective cover, and that any information incorporated by reference is accurate only as of the date of the document incorporated by reference, unless we indicate otherwise.  Our business, financial condition, results of operations and prospects may have changed since those dates.
Unless the context requires otherwise, all references in this prospectus to “we,” “our,” “us” and the “Company” refer to Diana Shipping Inc. and its subsidiaries. We use the term deadweight tons, or dwt, expressed in metric tons, each of which is equivalent to 1,000 kilograms, in describing the size of our vessels. Unless otherwise indicated, all references to currency amounts in this prospectus are in U.S. dollars. We prepare our financial statements, including all of the financial statements included or incorporated by reference in this prospectus, in U.S. dollars and in conformity with U.S. generally accepted accounting principles, or U.S. GAAP.  We have a fiscal year end of December 31.



TABLE OF CONTENTS

Page
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
1
PROSPECTUS SUMMARY
2
RISK FACTORS
4
USE OF PROCEEDS
4
CAPITALIZATION
5
PRICE RANGE OF CAPITAL STOCK
6
PLAN OF DISTRIBUTION
7
TAX CONSIDERATIONS
8
DESCRIPTION OF CAPITAL STOCK
9
DESCRIPTION OF DEBT SECURITIES
15
DESCRIPTION OF WARRANTS
21
DESCRIPTION OF PURCHASE CONTRACTS
22
DESCRIPTION OF RIGHTS
23
DESCRIPTION OF UNITS
24
ENFORCEABILITY OF CIVIL LIABILITIES
25
EXPENSES
26
LEGAL MATTERS
26
EXPERTS
26
WHERE YOU CAN FIND ADDITIONAL INFORMATION
27



CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This prospectus, including the information we incorporate by reference, include "forward-looking statements," as defined by U.S. federal securities laws, with respect to our financial condition, results of operations and business and our expectations or beliefs concerning future events. Words such as, but not limited to, "believe," "expect," "anticipate," "estimate," "intend," "plan," "targets," "projects," "likely," "will," "would," "could" and similar expressions or phrases may identify forward-looking statements.

All forward-looking statements involve risks and uncertainties. The occurrence of the events described, and the achievement of the expected results, depend on many events, some or all of which are not predictable or within our control. Actual results may differ materially from expected results.

The forward-looking statements in this document are based upon various assumptions, many of which are based, in turn, upon further assumptions, including without limitation, management’s examination of historical operating trends, data contained in its records and other data available from third parties. Although the Company believes that these assumptions were reasonable when made, because these assumptions are inherently subject to significant uncertainties and contingencies which are difficult or impossible to predict and are beyond its control, the Company cannot assure you that it will achieve or accomplish these expectations, beliefs or projections.

Such statements reflect the Company’s current views with respect to future events and are subject to certain risks, uncertainties and assumptions. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those described herein as anticipated, believed, estimated, expected or intended. The Company is making investors aware that such forward-looking statements, because they relate to future events, are by their very nature subject to many important factors that could cause actual results to differ materially from those contemplated.

In addition to these important factors and matters discussed elsewhere herein, important factors that, in its view, could cause actual results to differ materially from those discussed in the forward-looking statements include, but are not limited to (i) the strength of world economies, (ii) fluctuations in currencies and interest rates, (iii) general market conditions, including fluctuations in charter hire rates and vessel values, (iv) changes in demand in the dry-bulk shipping industry, (v) changes in the supply of vessels, including when caused by new newbuilding vessel orders or changes to or terminations of existing orders, and vessel scrapping levels, (vi) changes in the Company's operating expenses, including bunker prices, crew costs, drydocking and insurance costs, (vii) the Company’s future operating or financial results, (viii) availability of financing and refinancing and changes to the Company’s financial condition and liquidity, including the Company’s ability, (ix) to pay amounts that it owes and obtain additional financing to fund capital expenditures, acquisitions and other general corporate activities and the Company’s ability to obtain financing and comply with the restrictions and other covenants in the Company’s financing arrangements, (x) changes in governmental rules and regulations or actions taken by regulatory authorities, (xi) potential liability from pending or future litigation, (xii) compliance with governmental, tax, environmental and safety regulation, any non-compliance with the U.S. Foreign Corrupt Practices Act of 1977 (FCPA) or other applicable regulations relating to bribery, (xiii) the impact of the discontinuance of LIBOR after 2021 on interest rates of any of the Company’s debt that reference LIBOR, (xiv) the failure of counter parties to fully perform their contracts with the Company, (xv) the Company’s dependence on key personnel, (xvi) adequacy of insurance coverage, (xvii) the volatility of the price of the Company’s common stock, (xviii) the Company’s incorporation under the laws of the Marshall Islands and the different rights to relief that may be available compared to other countries, including the United States, (xix) general domestic and international political conditions or labor disruptions, (xx) acts by terrorists or acts of piracy on ocean-going vessels, (xxi) the length and severity of the recent novel coronavirus (COVID-19) outbreak and its impact in the dry-bulk shipping industry, (xxii) potential disruption of shipping routes due to accidents or political events, and (xxiii) other important factors described from time to time in the reports filed by the Company with the Securities and Exchange Commission, or the SEC, and the New York Stock Exchange, or the NYSE.

We have based these statements on assumptions and analyses formed by applying our experience and perception of historical trends, current conditions, expected future developments and other factors we believe are appropriate in the circumstances. All future written and verbal forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. We undertake no obligation, and specifically decline any obligation, except as required by law, to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus might not occur.

See the section entitled "Risk Factors," on page 4 of this prospectus and in our Annual Report on Form 20-F for the fiscal year ended December 31, 2020, filed with the SEC on March 12, 2021 (the “Annual Report”), and incorporated by reference herein, for a more complete discussion of these risks and uncertainties and for other risks and uncertainties. These factors and the other risk factors described in this prospectus and the documents incorporated by reference are not necessarily all of the important factors that could cause actual results or developments to differ materially from those expressed in any of our forward-looking statements. Other unknown or unpredictable factors also could harm our results. Consequently, there can be no assurance that actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to, or effects on, us. Given these uncertainties, prospective investors are cautioned not to place undue reliance on such forward-looking statements.


1

PROSPECTUS SUMMARY
The following summary highlights information contained elsewhere is this prospectus or incorporated by reference from our Annual Report on Form 20-F for the fiscal year ended December 31, 2020 and our other filings with the SEC listed in the section of this prospectus entitled “Incorporation of Documents by Reference.” This summary does not contain all of the information that you should consider before investing in our securities. You should read this entire prospectus, including the section entitled “Risk Factors,” before making an investment decision.
Our Company

We are a global provider of shipping transportation services. We specialize in the ownership of dry bulk vessels. Each of our vessels is owned through a separate wholly-owned subsidiary. We were re-domiciled from the Republic of Liberia to the Republic of the Marshall Islands in February 2005.

Our Fleet

Our Fleet is currently comprised of 37 dry bulk carriers. The following table summarizes key information about our Fleet as of the date of this prospectus:

Vessel Name
Year Built
Capacity(dwt)
Vessel Type
       
Protefs
2004
73,630
Panamax Bulk Carrier
Calipso
2005
73,691
Panamax Bulk Carrier
Naias(1)
2006
73,546
Panamax Bulk Carrier
Melia
2005
76,225
Panamax Bulk Carrier
Artemis
2006
76,942
Panamax Bulk Carrier
Leto
2010
81,297
Panamax Bulk Carrier
Selina
2010
75,700
Panamax Bulk Carrier
Maera
2013
75,403
Panamax Bulk Carrier
Ismene
2013
77,901
Panamax Bulk Carrier
Crystalia
2014
77,525
Panamax Bulk Carrier
Atalandi
2014
77,529
Panamax Bulk Carrier
Maia
2009
82,193
Kamsarmax Bulk Carrier
Myrsini
2010
82,117
Kamsarmax Bulk Carrier
Medusa
2010
82,194
Kamsarmax Bulk Carrier
Myrto
2013
82,131
Kamsarmax Bulk Carrier
Astarte
2013
81,513
Kamsarmax Bulk Carrier
Alcmene
2010
93,193
Post-Panamax Bulk Carrier
Amphitrite
2012
98,697
Post-Panamax Bulk Carrier
Polymnia
2012
98,704
Post-Panamax Bulk Carrier
Electra
2013
87,150
Post-Panamax Bulk Carrier
Phaidra
2013
87,146
Post-Panamax Bulk Carrier
Aliki
2005
180,235
Capesize Bulk Carriers
Baltimore
2005
177,243
Capesize Bulk Carriers
Salt Lake City
2005
171,810
Capesize Bulk Carriers
Semirio
2007
174,261
Capesize Bulk Carriers
Boston
2007
177,828
Capesize Bulk Carriers
Houston
2009
177,729
Capesize Bulk Carriers
New York
2010
177,773
Capesize Bulk Carriers
Seattle
2011
179,362
Capesize Bulk Carriers
P. S. Palios
2013
179,134
Capesize Bulk Carriers
G. P. Zafirakis
2014
179,492
Capesize Bulk Carriers
Santa Barbara
2015
179,426
Capesize Bulk Carriers
New Orleans
2015
180,960
Capesize Bulk Carriers
Los Angeles
2012
206,104
Newcastlemax Bulk Carriers
Philadelphia
2012
206,040
Newcastlemax Bulk Carriers
San Francisco
2017
208,006
Newcastlemax Bulk Carriers
Newport News
2017
208,021
Newcastlemax Bulk Carriers

(1)  Vessel sold and expected to be delivered to her new Owners at the latest by July 30, 2021.


2
Ship Management

The commercial and technical management of our fleet, as well as the provision of administrative services relating to the fleet’s operations, are carried out by our wholly-owned subsidiary, Diana Shipping Services S.A., which we refer to as DSS, and Diana Wilhelmsen Management Limited, a 50/50 joint venture with Wilhelmsen Ship Management, which we refer to as DWM. In exchange for providing us with commercial and technical services, personnel and office space, we pay DSS a commission, which is a percentage of the managed vessels’ gross revenues, a fixed monthly fee per managed vessel and an additional monthly fee for the administrative services provided to Diana Shipping Inc. Such services may include budgeting, reporting, monitoring of bank accounts, compliance with banks, payroll services and any other possible service that Diana Shipping Inc. would require to perform its operations. Similarly, in exchange for providing us with commercial and technical services, we pay to DWM a commission which is a percentage of the managed vessels’ gross revenues and a fixed management monthly fee for each managed vessel.

Since June 1, 2010, Steamship Shipbroking Enterprises Inc., or Steamship, a related party controlled by our Chairman of the Board, provides brokerage services to us. The terms of this relationship are currently governed by a Brokerage Services Agreement dated July 1, 2020.

Recent Developments

Sustainability-linked Loan Facility with ABN AMRO Bank N.V.

On May 14, 2021, the Company, through six wholly-owned subsidiaries, signed a sustainability linked loan facility with ABN AMRO Bank N.V. in the amount of $91 million to refinance existing facilities.

Equity Distribution Agreement

On April 23, 2021, the Company entered into an Equity Distribution Agreement (the “Equity Distribution Agreement”) with Maxim Group LLC (“Maxim”), as sales agent, under which the Company may offer and sell, from time to time through Maxim, up to $200.0 million of its common stock. As of the date of this prospectus, the Company has not sold any shares under the Equity Distribution Agreement.

Sale of Naias

On March 16, 2021 the Company, through a separate wholly-owned subsidiary, signed a Memorandum of Agreement to sell to an unaffiliated third party, the 2006-built vessel “Naias”, with delivery to the buyer latest by July 30, 2021, for a sale price of $11.25 million before commissions.

Tender Offer

In February 2021, the Company repurchased in a public tender offer 6,000,000 shares of its outstanding common stock, par value of $0.01 per share at a price of $2.50 per share, for an aggregate purchase price of $15 million.

Amendment to 2014 Equity Incentive Plan

Effective January 8, 2021, the Company amended and restated its 2014 Equity Incentive Plan, or the Plan, to increase the number of common stock available for issuance under the Plan by 20 million shares. All other material provisions of the Plan remained unchanged. In February 2021, the Company awarded to its executive officers and directors an aggregate amount of 8,260,000 restricted shares under the Plan, of an aggregate fair value of $23.5 million, to be recognized ratably over the vesting periods of 3 and 5 years.

Corporate Information

Diana Shipping Inc. is a holding company incorporated under the laws of Liberia in March 1999 as Diana Shipping Investments Corp., and was re-domiciled from the Republic of Liberia to the Republic of the Marshall Islands in February 2005.  Our executive offices are located at Pendelis 16, 175 64 Palaio Faliro, Athens, Greece. Our telephone number at this address is +30-210-9470-100.

The Securities We May Offer
We may use this prospectus to offer, through one or more offerings, up to $750,000,000 of our common stock (including related preferred stock purchase rights), preferred stock, debt securities, warrants, purchase contracts, rights and units. We may also offer securities of the types listed above that are convertible or exchangeable into one or more of the securities listed above. A prospectus supplement will describe the specific types, amounts, prices, and detailed terms of any of these offered securities and may describe certain risks in addition to those set forth below associated with an investment in the securities. Terms used in the prospectus supplement will have the meanings described in this prospectus, unless otherwise specified.

3
RISK FACTORS
An investment in our securities involves a high degree of risk.  Before making an investment in our securities, you should carefully consider all of the information included in this prospectus and any prospectus supplement, including those in "Item 3—Key Information—D. Risk Factors" in our Annual Report on Form 20-F for the year ended December 31, 2020 filed with the Commission on March 12, 2021, as updated by annual, quarterly and other reports and documents we file with the Commission after the date of this prospectus and that are incorporated by reference herein. Please see the section of this prospectus entitled "Where You Can Find Additional Information—Information Incorporated by Reference." The occurrence of one or more of those risk factors could adversely impact our business, results of operations or financial condition. When we offer and sell any securities pursuant to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of securities issued under this prospectus as set forth in the applicable prospectus supplement.

4

CAPITALIZATION
Updated information about our capitalization will be included in applicable future prospectus supplements. The following table sets forth our capitalization at December 31, 2020:

•
on an actual basis; and

•
on an as adjusted basis to give effect to the following transactions through June 4, 2021:

i.
the payment of $88.3 million of debt installments and the drawdown of $91 million under our new loan facility with ABN Amro;

ii.
the repurchase in a tender offer of 6,000,000 shares at $2.50 per share in February 2021 for an aggregate amount of $15.1 million;

iii.
$1.7 million of paid dividends on Series B Preferred Shares; and

iv.
8,260,000 restricted shares issued in February 2021, for which compensation cost will be recognized ratably over a period of 3 and 5 years.

   
As of December 31, 2020
 
   
Actual
   
As Adjusted1
 
   
(in thousands of U.S. dollars)
 
Total debt (secured and unsecured)
 
$
423,056
   
$
425,741
 
                 
Shareholders’ equity
               
Preferred stock
 
$
26
   
$
26
 
Common stock, $0.01 par value; 200,000,000 shares authorized and 89,275,002 and 91,535,002 shares issued and outstanding at December 31, 2020 and the date of this prospectus, respectively
   
893
     
915
 
Additional paid-in capital
   
1,020,164
     
1,005,088
 
Accumulated other comprehensive income
   
69
     
69
 
Accumulated deficit
   
(592,582
)
   
(594,249
)
Total stockholders' equity
 
$
428,570
   
$
411,849
 
                 
Total capitalization
 
$
851,626
   
$
837,590
 

 


1 Additional paid-in capital has not been adjusted for compensation cost on restricted stock


5
PRICE RANGE OF CAPITAL STOCK
The trading market for our common stock is the NYSE, on which our shares trade under the symbol “DSX.”  The following table sets forth the high and low closing prices for our common stock for the periods indicated, as reported by the NYSE.
FOR THE YEAR ENDED:
 
HIGH
   
LOW
 
December 31, 2020
 
$
3.08
   
$
1.27
 
December 31, 2019
 
$
3.95
   
$
2.45
 
December 31, 2018
 
$
5.10
   
$
3.06
 
December 31, 2017
 
$
6.03
   
$
3.30
 
December 31, 2016
 
$
4.47
   
$
2.02
 

FOR THE QUARTER ENDED:
 
HIGH
   
LOW
 
March 31, 2021
 
$
3.60
   
$
1.89
 
December 31, 2020
 
$
2.03
   
$
1.34
 
September 30, 2020
 
$
1.58
   
$
1.37
 
June 30, 2020
 
$
1.99
   
$
1.36
 
March 31, 2020
 
$
3.08
   
$
1.27
 
December 31, 2019
 
$
3.95
   
$
3.01
 
September 30, 2019
 
$
3.73
   
$
3.02
 
June 30, 2019
 
$
3.31
   
$
2.90
 
March 31, 2019
 
$
3.57
   
$
2.45
 

FOR THE MONTH:
 
HIGH
   
LOW
 
May 2021
 
$
4.81
   
$
3.72
 
April 2021
 
$
3.75
   
$
2.96
 
March 2021
 
$
3.55
   
$
2.80
 
February 2021
 
$
3.60
   
$
2.50
 
January 2021
 
$
2.43
   
$
1.89
 

The trading market for our Series B Preferred Stock is the NYSE, on which our shares trade under the symbol “DSXPRB.”  The following table sets forth the high and low closing prices for our Series B Preferred Stock for the periods indicated, as reported by the NYSE.
FOR THE YEAR ENDED:
 
HIGH
   
LOW
 
December 31, 2020
 
$
26.12
   
$
12.25
 
December 31, 2019
 
$
25.77
   
$
22.60
 
December 31, 2018
 
$
25.80
   
$
20.61
 
December 31, 2017
 
$
24.81
   
$
17.24
 
December 31, 2016
 
$
18.52
   
$
9.50
 

FOR THE QUARTER ENDED:
 
HIGH
   
LOW
 
March 31, 2021
 
$
26.41
   
$
25.00
 
December 31, 2020
 
$
25.40
   
$
21.80
 
September 30, 2020
 
$
23.75
   
$
21.51
 
June 30, 2020
 
$
22.60
   
$
15.95
 
March 31, 2020
 
$
26.12
   
$
12.25
 
December 31, 2019
 
$
25.77
   
$
25.05
 
September 30, 2019
 
$
25.44
   
$
24.67
 
June 30, 2019
 
$
24.93
   
$
23.59
 
March 31, 2019
 
$
24.70
   
$
22.60
 

FOR THE MONTH:
 
HIGH
   
LOW
 
May 2021
 
$
26.02
   
$
25.53
 
April 2021
 
$
26.28
   
$
25.42
 
March 2021
 
$
26.41
   
$
25.53
 
February 2021
 
$
25.64
   
$
25.20
 
January 2021
 
$
25.78
   
$
25.00
 


6

PLAN OF DISTRIBUTION
We may sell or distribute the securities included in this prospectus through underwriters, through agents, to dealers, in private transactions, at market prices prevailing at the time of sale, including sales made directly on a national securities exchange or sales made through a market maker other than on an exchange or other similar offerings through sales agents, at prices related to the prevailing market prices, a fixed price or prices, which may be changed or at negotiated prices.
In addition, we may sell some or all of our securities included in this prospectus through:

•
a block trade in which a broker-dealer may resell a portion of the block, as principal, in order to facilitate the transaction;

•
purchases by a broker-dealer, as principal, and resale by the broker-dealer for its account;

•
ordinary brokerage transactions and transactions in which a broker solicits purchasers; or

•
trading plans entered into by us pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of our securities on the basis of parameters described in such trading plans.
In addition, we may enter into options or other types of transactions that require us to deliver our securities to a broker-dealer, who will then resell or transfer the securities under this prospectus. We may enter into hedging transactions with respect to our securities. For example, we may:

•
enter into transactions involving short sales of our common stock by broker-dealers;

•
sell common stock short and deliver the shares to close out short positions;

•
enter into option or other types of transactions that require us to deliver common stock to a broker-dealer, who will then resell or transfer the common stock under this prospectus; or

•
loan or pledge the common stock to a broker-dealer, who may sell the loaned shares or, in the event of default, sell the pledged shares.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or a post-effective amendment). In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic short position to investors in our securities or in connection with a concurrent offering of other securities.
Any broker-dealers or other persons acting on our behalf that participate with us in the distribution of the securities may be deemed to be underwriters and any commissions received or profit realized by them on the resale of the securities may be deemed to be underwriting discounts and commissions under the Securities Act of 1933, as amended, or the Securities Act. As of the date of this prospectus, we are not a party to any agreement, arrangement or understanding between any broker or dealer and us with respect to the offer or sale of the securities pursuant to this prospectus.
At the time that any particular offering of securities is made, to the extent required by the Securities Act, a prospectus supplement will be distributed, setting forth the terms of the offering, including the aggregate number of securities being offered, the purchase price of the securities, the initial offering price of the securities, the names of any underwriters, dealers or agents, any discounts, commissions and other items constituting compensation from us and any discounts, commissions or concessions allowed or reallowed or paid to dealers. Furthermore, we, our executive officers, our directors and major shareholders may agree, subject to certain exemptions, that for a certain period from the date of the prospectus supplement under which the securities are offered, we and they will not, without the prior written consent of an underwriter, offer, sell, contract to sell, pledge or otherwise dispose of any of our common stock or any securities convertible into or exchangeable for common stock. However, an underwriter, in its sole discretion, may release any of the securities subject to these lock-up agreements at any time without notice. We expect an underwriter to exclude from these lock-up agreements securities exercised and/or sold pursuant to trading plans entered into by us pursuant to Rule 10b5-1 under the Exchange Act, that are in place at the time of an offering pursuant to this prospectus and any applicable prospectus supplement hereto that provide for periodic sales of our securities on the basis of parameters described in such trading plans.
Underwriters or agents could make sales in privately negotiated transactions and/or any other method permitted by law, including sales deemed to be an at-the-market offering as defined in Rule 415 promulgated under the Securities Act, which includes sales made directly on or through the NYSE, the existing trading market for our shares of common stock and Series B Preferred Stock, or sales made to or through a market maker other than on an exchange.
We will bear costs relating to all of the securities being registered under the registration statement of which this prospectus forms a part.

7
TAX CONSIDERATIONS

You should carefully read the discussion of the material Marshall Islands and U.S. federal income tax considerations associated with our operations and the acquisition, ownership and disposition of our common stock set forth in the section entitled “Taxation” of the Annual Report incorporated by reference herein.


8

DESCRIPTION OF CAPITAL STOCK
 The following is a summary of the description of our capital stock and the material terms of our amended and restated articles of incorporation and bylaws.  Because the following is a summary, it does not contain all of the information that you may find useful. We refer you to our amended and restated articles of incorporation and bylaws, copies of which have been filed as exhibits to our Annual Report, which is incorporated by reference herein. Please see the section of this prospectus entitled “Where You Can Find Additional Information—Information Incorporated by Reference.”
Purpose
Our purpose, as stated in our amended and restated articles of incorporation, is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the Marshall Islands Business Corporations Act, or the BCA. Our amended and restated articles of incorporation and bylaws do not impose any limitations on the ownership rights of our stockholders.
Authorized Capitalization
Under our amended and restated articles of incorporation, as of the date of this prospectus, our authorized capital stock consists of 200,000,000 shares of common stock, par value $0.01 per share, of which 91,535,002 shares are issued and outstanding and 25,000,000 shares of preferred stock, par value $0.01 per share, of which (i) 1,000,000 shares are designated as Series A Participating Preferred Stock, none of which is issued and outstanding, (ii) 5,000,000 shares are designated as Series B Preferred Stock, of which 2,600,000 are issued and outstanding, and (iii) 10,675 are designated as Series C Preferred Shares, of which 10,675 are issued and outstanding. All of our shares of stock are in registered form.
Common Stock
Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of stockholders. Subject to preferences that may be applicable to any outstanding shares of preferred stock, holders of shares of common stock are entitled to receive ratably all dividends, if any, declared by our board of directors out of funds legally available for dividends. Upon our dissolution or liquidation or the sale of all or substantially all of our assets, after payment in full of all amounts required to be paid to creditors and to the holders of preferred stock having liquidation preferences, if any, the holders of our common stock will be entitled to receive pro rata our remaining assets available for distribution. Holders of common stock do not have conversion, redemption or preemptive rights to subscribe to any of our securities. The rights, preferences and privileges of holders of common stock are subject to the rights of the holders of our preferred stock.
Preferred Stock
Our board of directors is authorized to provide for the issuance of preferred stock in one or more series with designations as may be stated in the resolution or resolutions providing for the issue of such preferred stock.  At the time that any series of our preferred stock is authorized, our board of directors will fix the dividend rights, any conversion rights, any voting rights, redemption provisions, liquidation preferences and any other rights, preferences, privileges and restrictions of that series, as well as the number of shares constituting that series and their designation.  Our board of directors could, without shareholder approval, cause us to issue preferred stock which has voting, conversion and other rights and preferences that could adversely affect the voting power and other rights of holders of our common stock, Series A Participating Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, or make it more difficult to effect a change in control.  In addition, preferred stock could be used to dilute the share ownership of persons seeking to obtain control of us and thereby hinder a possible takeover attempt which, if our shareholders were offered a premium over the market value of their shares, might be viewed as being beneficial to our shareholders. The material terms of any series of preferred stock that we offer through a prospectus supplement will be described in that prospectus supplement.
Series B Cumulative Redeemable Perpetual Preferred Stock
Our Series B Preferred Stock is senior in rank to our Series A Participating Preferred Stock.  Holders of our Series B Preferred Stock have no voting rights other than the ability, subject to certain exceptions, to elect one director if dividends for six quarterly dividend periods (whether or not consecutive) are in arrears and certain other limited protective voting rights.  Holders of our Series B Preferred Stock rank prior to the holders of our common stock with respect to dividends, distributions and payments upon liquidation.  Dividends on our Series B Preferred Stock are cumulative from the date of original issue and are payable on the 15th day of January, April, July and October of each year at the dividend rate of 8.875% per annum, or $2.21875 per annum per share. At any time on or after February 14, 2019, we may redeem, in whole or in part, the Series B Preferred Stock 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.

9
For further information on our Series B Preferred Stock, please see the section entitled “Description of Series B Preferred Shares” of our prospectus supplement filed with the Commission on February 13, 2014.
Series C Preferred Stock.
The Series C Preferred Stock votes with the common stock of the Company, and each share entitles the holder thereof to 1,000 votes on all matters submitted to a vote of the stockholders of the Company. The Series C Preferred Stock has no dividend or liquidation rights and cannot be transferred without the consent of the Company except to the holder’s affiliates and immediate family members.
For additional information about our Series C Preferred Shares, please see the Form 6-K filed with the SEC on February 6, 2019 and incorporated by reference herein.
Preferred Stock Purchase Rights
On January 15, 2016, we entered into a Stockholders Rights Agreement, or the Rights Agreement, with Computershare Trust Company, N.A., as Rights Agent, to replace the Amended and Restated Stockholders Rights Agreement dated October 7, 2008.
Under the Rights Agreement, we declared a dividend payable of one preferred stock purchase right, or Right, for each share of common stock outstanding at the close of business on January 26, 2016. Each Right entitles the registered holder to purchase from us one one-thousandth of a share of Series A Participating Preferred Stock, par value $0.01 per share, at an exercise price of $40.00 per share. The Rights will separate from the common stock and become exercisable only if a person or group acquires beneficial ownership of 18.5% or more of our common stock (including through entry into certain derivative positions) in a transaction not approved by our board of directors. In that situation, each holder of a Right (other than the acquiring person, whose Rights will become void and will not be exercisable) will have the right to purchase, upon payment of the exercise price, a number of shares of our common stock having a then-current market value equal to twice the exercise price. In addition, if the Company is acquired in a merger or other business combination after an acquiring person acquires 18.5% or more of our common stock, each holder of the Right will thereafter have the right to purchase, upon payment of the exercise price, a number of shares of common stock of the acquiring person having a then-current market value equal to twice the exercise price. The acquiring person will not be entitled to exercise these Rights. Until a Right is exercised, the holder of a Right will have no rights to vote or receive dividends or any other stockholder rights.
The Rights may have anti-takeover effects. The Rights will cause substantial dilution to any person or group that attempts to acquire us without the approval of our board of directors. As a result, the overall effect of the Rights may be to render more difficult or discourage any attempt to acquire us. Because our board of directors can approve a redemption of the Rights or a permitted offer, the Rights should not interfere with a merger or other business combination approved by our board of directors.
We have summarized the material terms and conditions of the Rights Agreement and the Rights below. For a complete description of the Rights, we encourage you to read the Rights Agreement, which we have filed as an exhibit to the registration statement of which this prospectus is a part.
Detachment of the Rights
The Rights are attached to all certificates representing our currently outstanding common stock, or, in the case of uncertificated common stock registered in book entry form, which we refer to as “book entry shares,” by notation in book entry accounts reflecting ownership, and will attach to all common stock certificates and book entry shares we issue prior to the Rights distribution date that we describe below. The Rights are not exercisable until after the Rights distribution date and will expire at the close of business on January 14, 2026, unless we redeem or exchange them earlier as we describe below. The Rights will separate from the common stock and a Rights distribution date would occur, subject to specified exceptions, on the earlier of the following two dates:

•
the 10th day after public announcement that a person or group has acquired ownership of 15% or more of the Company’s common stock; or

•
the 10th business day (or such later date as determined by the Company’s board of directors) after a person or group announces a tender or exchange offer which would result in that person or group holding 15% or more of the Company’s common stock.
“Acquiring person” is generally defined in the Rights Agreement as any person, together with all affiliates or associates, who beneficially owns 18.5% or more of the Company’s common stock. However, the Company, any subsidiary of the Company or any employee benefit plan of the Company or of any subsidiary of the Company, or any person holding shares of common stock for or pursuant to the terms of any such plan, are excluded from the definition of “acquiring person.” In addition, persons who beneficially own 18.5% or more of the Company’s common stock on the effective date of the Rights Agreement are excluded from the definition of “acquiring person” until such time as they acquire additional shares in excess of 2% of the Company’s then outstanding common stock as specified in the Rights Agreement for purposes of the Rights, and therefore, until such time, their ownership cannot trigger the Rights. Specified “inadvertent” owners that would otherwise become an acquiring person, including those who would have this designation as a result of repurchases of common stock by us, will not become acquiring persons as a result of those transactions.


10
Our board of directors may defer the Rights distribution date in some circumstances, and some inadvertent acquisitions will not result in a person becoming an acquiring person if the person promptly divests itself of a sufficient number of shares of common stock.
Until the Rights distribution date:

•
our common stock certificates and book entry shares will evidence the Rights, and the Rights will be transferable only with those certificates; and

•
any new common stock will be issued with Rights and new certificates or book entry shares, as applicable, will contain a notation incorporating the Rights Agreement by reference.
As soon as practicable after the Rights distribution date, the Rights agent will mail certificates representing the Rights to holders of record of common stock at the close of business on that date. After the Rights distribution date, only separate Rights certificates will represent the Rights.
We will not issue Rights with any shares of common stock we issue after the Rights distribution date, except as our board of directors may otherwise determine.
Flip-In Event
A “flip-in event” will occur under the Rights Agreement when a person becomes an acquiring person other than pursuant to certain kinds of permitted offers. An offer is permitted under the Rights Agreement if a person will become an acquiring person pursuant to a merger or other acquisition agreement that has been approved by our board of directors prior to that person becoming an acquiring person.
If a flip-in event occurs and we have not previously redeemed the Rights as described under the heading “Redemption of Rights” below or, if the acquiring person acquires less than 50% of our outstanding common stock and we do not exchange the Rights as described under the heading “Exchange of Rights” below, each Right, other than any Right that has become void, as we describe below, will become exercisable at the time it is no longer redeemable for the number of shares of common stock, or, in some cases, cash, property or other of our securities, having a current market price equal to two times the exercise price of such right.
When a flip-in event occurs, all Rights that then are, or in some circumstances that were, beneficially owned by or transferred to an acquiring person or specified related parties will become void in the circumstances the Rights Agreement specifies.
Flip-Over Event
A “flip-over event” will occur under the Rights Agreement when, at any time after a person has become an acquiring person:

•
we are acquired in a merger or other business combination transaction, other than specified mergers that follow a permitted offer of the type we describe above; or

•
50% or more of our assets or earning power is sold or transferred.
If a flip-over event occurs, each holder of a Right, other than any Right that has become void as we describe under the heading “Flip-In Event” above, will have the right to receive the number of shares of common stock of the acquiring company which has a current market price equal to two times the exercise price of such Right.
Anti-dilution
The number of outstanding Rights associated with our common stock is subject to adjustment for any stock split, stock dividend or subdivision, combination or reclassification of our common stock occurring prior to the Rights distribution date. With some exceptions, the Rights Agreement will not require us to adjust the exercise price of the Rights until cumulative adjustments amount to at least 1% of the exercise price. It also will not require us to issue fractional shares of our Series A Participating Preferred Stock that are not integral multiples of one-thousandth of a share, and, instead we may make a cash adjustment based on the market price of the common stock on the last trading date prior to the date of exercise.

11
Redemption of Rights
At any time until the date on which the occurrence of a flip-in event is first publicly announced, we may order redemption of the Rights in whole, but not in part, at a redemption price of $0.01 per right. The redemption price is subject to adjustment for any stock split, stock dividend or similar transaction occurring before the date of redemption. At our option, we may pay that redemption price in cash or shares of common stock. The Rights are not exercisable after a flip-in event if they are timely redeemed by us or until ten days following the first public announcement of a flip-in event. If our board of directors timely orders the redemption of the Rights, the Rights will terminate on the effectiveness of that action.
Exchange of Rights
We may, at our option, exchange the Rights (other than Rights owned by an acquiring person or an affiliate or an associate of an acquiring person, which have become void), in whole or in part. The exchange will be at an exchange ratio of one share of common stock per right, subject to specified adjustments at any time after the occurrence of a flip-in event and prior to any person other than us or our existing stockholders becoming the beneficial owner of 50% or more of our outstanding common stock for the purposes of the Rights Agreement.
Amendment of Terms of Rights
During the time the Rights are redeemable, we may amend any of the provisions of the Rights Agreement, other than by decreasing the redemption price. Once the Rights cease to be redeemable, we generally may amend the provisions of the Rights Agreement, other than to decrease the redemption price, only as follows:

•
to cure any ambiguity, defect or inconsistency;

•
to make changes that do not materially adversely affect the interests of holders of Rights, excluding the interests of any acquiring person; or

•
to shorten or lengthen any time period under the Rights Agreement, except that we cannot lengthen the time period governing redemption or lengthen any time period that protects, enhances or clarifies the benefits of holders of Rights other than an acquiring person.
Other Matters
Directors
Our directors are elected by a majority of the votes cast by stockholders entitled to vote. There is no provision for cumulative voting.
Our board of directors must consist of at least one member. Stockholders may change the number of directors only by the affirmative vote of holders of a majority of the outstanding common stock. The board of directors may change the number of directors only by a majority vote of the entire board. Our board of directors is divided into three classes, with each class serving staggered, three-year terms. Each director shall be elected to serve until the next annual meeting of stockholders at which the term expires for the relevant class, and until his successor shall have been duly elected and qualified, except in the event of his death, resignation, removal, or the earlier termination of his term of office. Our board of directors has the authority to fix the amounts which shall be payable to the members of the board of directors for attendance at any meeting or for services rendered to us.
Stockholder Meetings
Under our amended and restated bylaws, annual stockholder meetings will be held at a time and place selected by our board of directors. The meetings may be held in or outside the Marshall Islands. Special meetings may be called by our Chairman, Chief Executive Officer, or Secretary at the direction of the board of directors or by holders of not less than one-fifth of all outstanding common stock. Our board of directors may set a record date between 15 and 60 days before the date of any meeting to determine the stockholders that will be eligible to receive notice and vote at the meeting. Shareholders of record holding at least one third of the shares issued and outstanding and entitled to vote at such meetings, present in person or by proxy, will constitute a quorum at all stockholder meetings.

12
Dissenters’ Rights of Appraisal and Payment
Under the BCA, our shareholders have the right to dissent from various corporate actions, including any merger or consolidation or sale of all or substantially all of our assets not made in the usual course of our business, and receive payment of the fair value of their shares. However, the right of a dissenting shareholder to receive payment of the appraised fair value of his shares is not available under the BCA for the shares of any class or series of stock, which shares or depository receipts in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of and to vote at the meeting of the shareholders to act upon the agreement of merger or consolidation, were either (i) listed on a securities exchange or admitted for trading on an interdealer quotation system or (ii) held of record by more than 2,000 holders. In the event of any further amendment of our amended and restated articles of incorporation, a shareholder also has the right to dissent and receive payment for the shareholder’s shares if the amendment alters certain rights in respect of those shares. The dissenting shareholder must follow the procedures set forth in the BCA to receive payment. In the event that we and any dissenting shareholder fail to agree on a price for the shares, the BCA procedures involve, among other things, the institution of proceedings in the high court of the Republic of The Marshall Islands or in any appropriate court in any jurisdiction in which our shares are primarily traded on a local or national securities exchange.
Stockholders’ Derivative Actions
Under the BCA, any of our stockholders may bring an action in our name to procure a judgment in our favor, also known as a derivative action, provided that the stockholder bringing the action is a holder of common stock both at the time the derivative action is commenced and at the time of the transaction to which the action relates.
Limitations on Liability and Indemnification of Officers and Directors
The BCA authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties. Our amended and restated bylaws include a provision that eliminates the personal liability of directors for monetary damages for actions taken as a director to the fullest extent permitted by law.
Our amended and restated bylaws provide that certain individuals, including our directors and officers, are entitled to be indemnified by us to the same extent as authorized by the BCA, if such individuals acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. We shall have the power to pay in advance expenses a director or officer incurs while defending a civil or criminal proceeding, subject to certain conditions. We believe that these indemnification provisions and insurance are useful to attract and retain qualified directors and executive officers.
The limitation of liability and indemnification provisions in our amended and restated bylaws may discourage stockholders from bringing a lawsuit against our directors for breach of their fiduciary duties. These provisions may also have the effect of reducing the likelihood of derivative litigation against our directors and officers, even though such an action, if successful, might otherwise benefit us and our stockholders. In addition, your investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions.
There is currently no pending material litigation or proceeding involving any of our directors, officers or employees for which indemnification is sought.
Anti-takeover Effect of Certain Provisions of our Amended and Restated Articles of Incorporation and Bylaws
Several provisions of our amended and restated articles of incorporation and bylaws may have anti-takeover effects. These provisions, which are summarized below, are intended to avoid costly takeover battles, lessen our vulnerability to a hostile change of control and enhance the ability of our board of directors to maximize stockholder value in connection with any unsolicited offer to acquire us. However, these anti-takeover provisions could also discourage, delay or prevent (i) the merger or acquisition of our company by means of a tender offer, a proxy contest or otherwise that a stockholder may consider in its best interest and (ii) the removal of incumbent officers and directors.
Business Combinations
Our amended and restated articles of incorporation generally prohibit us from entering into a business combination with an “interested shareholder” for a period of three years following the date on which the person became an interested shareholder.  Interested shareholder is defined, with certain exceptions, as a person who (i) owns more than 15% of our outstanding voting stock, or (ii) is an affiliate or associate of the Company that owned more than 15% of our outstanding stock at any time in the prior three years from the date the determination is being made as to whether he or she is an interested shareholder.
This prohibition does not apply in certain circumstances such as if (i) prior to the person becoming an interested shareholder, our board of directors approved the business combination or the transaction which resulted in the person becoming an interested shareholder, or (ii) the person became an interested shareholder prior to the Company’s initial public offering.

13
Blank Check Preferred Stock
Under the terms of our amended and restated articles of incorporation, our board of directors has authority, without any further vote or action by our stockholders, to issue up to 25,000,000 shares of blank check preferred stock. Our board of directors may issue shares of preferred stock on terms calculated to discourage, delay or prevent a change of control of our company or the removal of our management.
Classified Board of Directors
Our amended and restated articles of incorporation provide for the division of our board of directors into three classes of directors, with each class as nearly equal in number as possible, serving staggered, three-year terms. Approximately one-third of our board of directors is elected each year. This classified board provision could discourage a third party from making a tender offer for our shares or attempting to obtain control of us. It could also delay stockholders who do not agree with the policies of our board of directors from removing a majority of our board of directors for two years.
Election and Removal of Directors
Our amended and restated articles of incorporation prohibit cumulative voting in the election of directors. Our amended and restated bylaws require parties other than the board of directors to give advance written notice of nominations for the election of directors. Our amended and restated articles of incorporation also provide that our directors may be removed only for cause and only upon the affirmative vote of a majority of the outstanding shares of our capital stock entitled to vote for those directors. These provisions may discourage, delay or prevent the removal of incumbent officers and directors.
Limited Actions by Stockholders
Our amended and restated articles of incorporation and bylaws provide that any action required or permitted to be taken by our stockholders must be effected at an annual or special meeting of stockholders or by the unanimous written consent of our stockholders. Our amended and restated articles of incorporation and bylaws provide that, subject to certain exceptions, our Chairman, Chief Executive Officer, or Secretary at the direction of the board of directors or holders of not less than one-fifth of all outstanding shares may call special meetings of our stockholders and the business transacted at the special meeting is limited to the purposes stated in the notice. Accordingly, a stockholder may be prevented from calling a special meeting for stockholder consideration of a proposal over the opposition of our board of directors and stockholder consideration of a proposal may be delayed until the next annual meeting.
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Our amended and restated bylaws provide that stockholders seeking to nominate candidates for election as directors or to bring business before an annual meeting of stockholders must provide timely notice of their proposal in writing to the corporate secretary. Generally, to be timely, a stockholder’s notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the date on which we first mailed our proxy materials for the preceding year’s annual meeting. Our bylaws also specify requirements as to the form and content of a stockholder’s notice. These provisions may impede stockholders’ ability to bring matters before an annual meeting of stockholders or make nominations for directors at an annual meeting of stockholders.
Registrar and Transfer Agent
The registrar and transfer agent for our common stock and Series B Preferred Stock is Computershare Trust Company, N.A.
Listing
Shares of our common stock are listed on the NYSE under the symbol “DSX.”  Shares of our Series B Preferred Stock are listed on the NYSE under the symbol “DSXPRB.”

14
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time in one or more series, under one or more indentures, each dated as of a date on or prior to the issuance of the debt securities to which it relates, and pursuant to an applicable prospectus supplement. We may issue senior debt securities and subordinated debt securities pursuant to separate indentures, a senior indenture and a subordinated indenture, respectively, in each case between us and the trustee named in the indenture. These indentures will be filed either as exhibits to an amendment to the registration statement of which this prospectus forms a part or as an exhibit to a report under the Exchange Act, that will be incorporated by reference into the registration statement of which this prospectus forms a part or a prospectus supplement. We refer to any applicable prospectus supplement, amendment to the registration statement and/or Exchange Act report as “subsequent filings.” The senior indenture and the subordinated indenture, as amended or supplemented from time to time, are each referred to individually as an “indenture” and collectively as the “indentures.” Each indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended, and will be construed in accordance with and governed by the laws of the State of New York (without giving effect to any principles thereof relating to conflicts of law that would result in the application of the laws of any other jurisdiction) unless otherwise stated in the applicable prospectus supplement and indenture (or post-effective amendment hereto).  Each indenture will contain the specific terms of any series of debt securities or provide that those terms must be set forth in or determined pursuant to, an authorizing resolution, as defined in the applicable prospectus supplement or a supplemental indenture, if any, relating to such series.
The following description sets forth certain general terms and provisions of the debt securities. The particular terms and provisions of the debt securities offered by any prospectus supplement, and the extent to which the general terms and provisions described below may apply to the offered debt securities, will be described in the applicable subsequent filings.  The statements below are not complete and are subject to, and are qualified in their entirety by reference to, all of the provisions of the applicable indenture. The specific terms of any debt securities that we may offer, including any modifications of, or additions to, the general terms described below as well as any applicable material U.S. federal income tax considerations concerning the ownership of such debt securities will be described in the applicable prospectus supplement and indenture and, as applicable, supplemental indenture. Accordingly, for a complete description of the terms of a particular issue of debt securities, the general description of the debt securities set forth below should be read in conjunction with the applicable prospectus supplement and indenture, as amended or supplemented from time to time.
General
We expect that neither indenture will limit the amount of debt securities which may be issued and that each indenture will provide that debt securities may be issued in one or more series.
We expect that the subsequent filings related to a series of offered debt securities will describe the following terms of the series:

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the designation, aggregate principal amount and authorized denominations;

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the issue price, expressed as a percentage of the aggregate principal amount;

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the maturity date;

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the interest rate per annum, if any;

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if the debt securities provide for interest payments, the date from which interest will accrue, the dates on which interest will be payable, the date on which payment of interest will commence and the regular record dates for interest payment dates;

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whether the debt securities will be our senior or subordinated securities;

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whether the debt securities will be our secured or unsecured obligations;

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the applicability of and terms of any guarantees;

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any period or periods during which, and the price or prices at which, we will have the option to or be required to redeem or repurchase the debt securities of the series and the other material terms and provisions applicable to such  redemption or repurchase;

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any optional or mandatory sinking fund provisions;

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•
any conversion or exchangeability provisions;

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if other than denominations of $1,000 and any integral multiple thereof, the denominations in which debt securities of the series will be issuable;

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if other than the full principal amount, the portion of the principal amount of the debt securities of the series which will be payable upon acceleration or provable in bankruptcy;

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any events of default not set forth in this prospectus;

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the currency or currencies, including composite currencies, in which principal, premium and interest will be payable, if other than the currency of the United States of America;

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if principal, premium or interest is payable, at our election or at the election of any holder, in a currency other than that in which the debt securities of the series are stated to be payable, the period or periods within which, and the terms and conditions upon which, the election may be made;

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whether interest will be payable in cash or additional securities at our or the holder’s option and the terms and conditions upon which the election may be made;

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if denominated in a currency or currencies other than the currency of the United States of America, the equivalent price in the currency of the United States of America for purposes of determining the voting rights of holders of those debt securities under the applicable indenture;

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if the amount of payments of principal, premium or interest may be determined with reference to an index, formula or other method based on a coin or currency other than that in which the debt securities of the series are stated to be payable, the manner in which the amounts will be determined;

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any covenants or other material terms relating to the debt securities, which may not be inconsistent with the applicable indenture;

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whether the debt securities will be issued in the form of global securities or certificates in registered form;

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any listing on any securities exchange or quotation system;

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additional provisions, if any, related to defeasance and discharge of the debt securities; and

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any other special features of the debt securities.
Subsequent filings may include additional terms not listed above. Unless otherwise indicated in subsequent filings with the Commission relating to the indenture, principal, premium and interest will be payable and the debt securities will be transferable at the corporate trust office of the applicable trustee. Unless other arrangements are made or set forth in subsequent filings or a supplemental indenture, principal, premium and interest will be paid by checks mailed to the registered holders at their registered addresses.
Unless otherwise indicated in subsequent filings with the Commission, the debt securities will be issued only in fully registered form without coupons, in denominations of $1,000 or any integral multiple thereof. No service charge will be made for any transfer or exchange of the debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with these debt securities.
Some or all of the debt securities may be issued as discounted debt securities, bearing no interest or interest at a rate which at the time of issuance is below market rates, to be sold at a substantial discount below the stated principal amount. United States federal income tax consequences and other special considerations applicable to any discounted securities will be described in subsequent filings with the Commission relating to those securities.
We refer you to the applicable subsequent filings for the particular terms and provisions of the debt securities offered by any prospectus supplement.

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Senior Debt Securities
We may issue senior debt securities under a senior debt indenture. These senior debt securities would rank on an equal basis with all our other unsubordinated debt.
Subordinated Debt Securities
We may issue subordinated debt securities under a subordinated debt indenture. These subordinated debt securities would rank subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in the applicable prospectus supplement.
Covenants
Any series of offered debt securities may have covenants in addition to or differing from those included in the applicable indenture which will be described in subsequent filings prepared in connection with the offering of such securities, limiting or restricting, among other things:

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our ability to incur either secured or unsecured debt, or both;

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our ability to make certain payments, dividends, redemptions or repurchases;

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our ability to create dividend and other payment restrictions affecting our subsidiaries;

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our ability to make investments;

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mergers and consolidations by us;

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sales of assets by us;

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our ability to enter into transactions with affiliates;

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our ability to incur liens; and

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sale and leaseback transactions.
Modification of the Indentures
We expect that each indenture and the rights of the respective holders generally may be modified by us only with the consent of holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series under the respective indenture affected by the modification, taken together as a class. But we expect that no modification that:
(1) changes the amount of securities whose holders must consent to an amendment, supplement or waiver;
(2) reduces the rate of or changes the interest payment time on any security or alters its redemption provisions (other than any alteration to any such section which would not materially adversely affect the legal rights of any holder under the indenture) or the price at which we are required to offer to purchase the securities;
(3) reduces the principal or changes the maturity of any security or reduces the amount of, or postpones the date fixed for, the payment of any sinking fund or analogous obligation;
(4) waives a default or event of default in the payment of the principal of or interest, if any, on any security (except a rescission of acceleration of the securities of any series by the holders of at least a majority in principal amount of the outstanding securities of that series and a waiver of the payment default that resulted from such acceleration);
(5) makes the principal of or interest, if any, on any security payable in any currency other than that stated in the security;
(6) makes any change with respect to holders’ rights to receive principal and interest, the terms pursuant to which defaults can be waived, certain modifications affecting shareholders or certain currency-related issues; or
(7) waives a redemption payment with respect to any security or changes any of the provisions with respect to the redemption of any securities;
will be effective against any holder without his consent.

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Additionally, certain changes under each indenture will not require the consent of any holders.  These types of changes are generally limited to clarifications of ambiguities, omissions, defects and inconsistencies in each indenture and amendments, supplements and other changes that would not adversely affect the holders of outstanding debt securities under each indenture, such as adding security, covenants, additional events of default or successor trustees.
Events of Default
We expect that each indenture will define an event of default for the debt securities of any series as being any one of the following events:

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default in any payment of interest when due which continues for 30 days;

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default in any payment of principal or premium when due;

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default in the deposit of any sinking fund payment when due;

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default in the performance of any covenant in the debt securities or the applicable indenture which continues for 60 days after we receive notice of the default;

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default under a bond, debenture, note or other evidence of indebtedness for borrowed money by us or our subsidiaries (to the extent we are directly responsible or liable therefor) having a principal amount in excess of a minimum amount set forth in the applicable subsequent filings, whether such indebtedness now exists or is hereafter created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such acceleration having been rescinded or annulled or cured within 30 days after we receive notice of the default; and

•
events of bankruptcy, insolvency or reorganization.
An event of default of one series of debt securities will not necessarily constitute an event of default with respect to any other series of debt securities.
There may be such other or different events of default as described in an applicable subsequent filing with respect to any class or series of offered debt securities.
We expect that under each indenture, in case an event of default occurs and continues for the debt securities of any series, the applicable trustee or the holders of not less than 25% in aggregate principal amount of the debt securities then outstanding of that series may declare the principal and accrued but unpaid interest of the debt securities of that series to be due and payable. Further, any event of default for the debt securities of any series which has been cured is expected to be permitted to be waived by the holders of a majority in aggregate principal amount of the debt securities of that series then outstanding.
We expect that each indenture will require us to file annually, after debt securities are issued under that indenture, with the applicable trustee a written statement signed by two of our officers as to the absence of material defaults under the terms of that indenture. We also expect that each indenture will provide that the applicable trustee may withhold notice to the holders of any default if it considers it in the interest of the holders to do so, except notice of a default in payment of principal, premium or interest.
Subject to the duties of the trustee in case an event of default occurs and continues, we expect that each indenture will provide that the trustee is under no obligation to exercise any of its rights or powers under that indenture at the request, order or direction of holders unless the holders have offered to the trustee reasonable indemnity. Subject to these provisions for indemnification and the rights of the trustee, each indenture is expected to provide that the holders of a majority in principal amount of the debt securities of any series then outstanding have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee as long as the exercise of that right does not conflict with any law or the indenture.
Defeasance and Discharge
The terms of each indenture are expected to provide us with the option to be discharged from any and all obligations in respect of the debt securities issued thereunder upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both, which through the payment of interest and principal will provide money in an amount sufficient to pay any installment of principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the payments in accordance with the terms of the debt securities and the indenture governing the debt securities.
We expect that this right may only be exercised if, among other things, we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that such a discharge will not be deemed, or result in, a taxable event with respect to holders. This discharge would not apply to our obligations to register the transfer or exchange of debt securities, to replace stolen, lost or mutilated debt securities, to maintain paying agencies and hold moneys for payment in trust.

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Defeasance of Certain Covenants
We expect that the terms of each indenture will provide us with the right to omit complying with specified covenants and specified events of default described in a subsequent filing upon the deposit with the trustee, in trust, of money or U.S. government obligations, or both, which through the payment of interest and principal will provide money in an amount sufficient to pay any installment of principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities on the stated maturity of the payments in accordance with the terms of the debt securities and the indenture governing the debt securities.
We expect that to exercise this right we will also be required to deliver to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that the deposit and related covenant defeasance will not cause the holders of such series to recognize income, gain or loss for United States federal income tax purposes.
A subsequent filing may further describe the provisions, if any, of any particular series of offered debt securities permitting a discharge defeasance.
Form of Debt Securities
Each debt security will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Both certificated securities in definitive form and global securities may be issued either in registered form, where our obligation runs to the holder of the security named on the face of the security, or in bearer form, where our obligation runs to the bearer of the security.
Definitive securities name you or your nominee as the owner of the security, other than definitive bearer securities, which name the bearer as owner, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other agent, as applicable.
Global securities name a depositary or its nominee as the owner of the debt securities represented by these global securities, other than global bearer securities, which name the bearer as owner. The depositary maintains a computerized system that will reflect each investor’s beneficial ownership of the securities through an account maintained by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
We may issue the debt securities in the form of one or more fully registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or those nominees. If not described below, any specific terms of the depositary arrangement with respect to any debt securities to be represented by a registered global security will be described in the prospectus supplement relating to those debt securities. We anticipate that the following provisions will apply to all depositary arrangements:
Ownership of beneficial interests in a registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or selling agents participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some jurisdictions may require that some purchasers of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities. So long as the depositary, or its nominee, is the registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the indenture.
Except as described below, owners of beneficial interests in a registered global security will not be entitled to have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or holders of the securities under the indenture. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest in that registered global security, to exercise any rights of a holder under the indenture. We understand that under existing industry practices, if we request any action of holders of a registered global security or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that action or would otherwise act upon the instructions of beneficial owners holding through them.

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Principal, premium, if any, and interest payments on debt securities represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered global security. None of us, the trustee or any other agent of us or agent of the trustee will have any responsibility or liability to owners of beneficial interests for any aspect of the records relating to payments made on account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests. We expect that the depositary for any of the securities represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit participants’ accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of those participants.
We expect that the indenture will provide that if the depositary for any of these securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the Exchange Act is not appointed by us within 90 days, we will be required to issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, the indenture is expected to allow us to decide, at any time and in our sole discretion, to not have any of the securities represented by one or more registered global securities. If we make that decision, we will issue securities in definitive form in exchange for all of the registered global security or securities representing those securities. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee or other relevant agent of ours or theirs. It is expected that the depositary’s instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held by the depositary.
If we issue registered global securities, we expect that the Depository Trust Company, or DTC, will act as depository and the securities will be registered in the name of Cede & Co., as DTC’s nominee.

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DESCRIPTION OF WARRANTS
We may issue warrants to purchase our debt or equity securities or securities of third parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified currencies, securities or indices, or any combination of the foregoing. Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a warrant agent. The terms of any warrants to be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement. We expect that such terms will include, among others:

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the title of such warrants;

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the aggregate number of such warrants;

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the price or prices at which such warrants will be issued;

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the currency or currencies in which the price of such warrants will be payable;

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the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants;

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the price at which, and the currency or currencies in which, the securities or other rights purchasable upon exercise of such warrants may be purchased;

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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire;

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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time;

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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such security;

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if applicable, the date on and after which such warrants and the related securities will be separately transferable;

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information with respect to book-entry procedures, if any;

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if applicable, a discussion of any material U.S. federal income tax considerations; and

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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.

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DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts for the purchase or sale of:

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debt or equity securities issued by us, a basket of such securities, an index or indices of such securities, or any combination of the above as specified in the applicable prospectus supplement; or

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currencies.
Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities or currencies at a specified purchase price, which may be based on a formula, all as set forth in the applicable prospectus supplement. We may, however, satisfy our obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will also specify the methods by which the holders may purchase or sell such securities or currencies and any acceleration, cancellation or termination provisions, provisions relating to U.S. federal income tax considerations, if any, or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require us to make periodic payments to the holders thereof or vice versa, which payments may be deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or pre-funded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contracts are issued. Our obligation to settle such pre-paid purchase contracts on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either a senior indenture or subordinated indenture.

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DESCRIPTION OF RIGHTS
We may issue rights to purchase our equity securities. These rights may be issued independently or together with any other security offered by this prospectus and may or may not be transferable by the stockholder receiving the rights in the rights offering. In connection with any rights offering, we may enter into a standby underwriting agreement with one or more underwriters pursuant to which the underwriter will purchase any securities that remain unsubscribed for upon completion of the rights offering.
The applicable prospectus supplement relating to any rights will describe the terms of the offered rights. We expect that such terms will include, where applicable:

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the exercise price for the rights;

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the number of rights issued to each stockholder;

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the extent to which the rights are transferable;

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any other terms of the rights, including terms, procedures and limitations relating to the exchange and exercise of the rights;

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the date on which the right to exercise the rights will commence and the date on which the right will expire;

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the amount of rights outstanding;

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the extent to which the rights include an over-subscription privilege with respect to unsubscribed securities; and

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the material terms of any standby underwriting arrangement entered into by us in connection with the rights offering.
The description in the applicable prospectus supplement of any rights we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable rights certificate or rights agreement, which will be filed with the Commission if we offer rights. For more information on how you can obtain copies of any rights certificate or rights agreement if we offer rights, see “Where You Can Find Additional Information” of this prospectus. We urge you to read the applicable rights certificate, the applicable rights agreement and any applicable prospectus supplement in their entirety.

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DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, we may issue units consisting of one or more rights, purchase contracts, warrants, debt securities, preferred shares, common stock (including related preferred stock purchase rights) or any combination of such securities.  The applicable prospectus supplement will describe the terms of the offered units.  We expect that such terms will include, among others:

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the terms of the units and of the rights, purchase contracts, warrants, debt securities, preferred shares, and/or common stock (including related preferred stock purchase rights) comprising the units, including whether and under what circumstances the securities comprising the units may be traded separately;

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a description of the terms of any unit agreement governing the units;

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if applicable, a discussion of any material U.S. federal income tax considerations; and

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a description of the provisions for the payment, settlement, transfer or exchange of the units.

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ENFORCEABILITY OF CIVIL LIABILITIES
Diana Shipping Inc. is a Marshall Islands corporation.  The Marshall Islands has a less developed body of securities laws than the United States and provides protections for investors to a significantly lesser extent.
Our principal executive offices are located outside the United States in Athens, Greece, and a majority of our directors, officers and the experts named in this prospectus reside outside the United States.  In addition, a substantial portion of our assets and the assets of our directors, officers and experts are located outside the United States. As a result, you may have difficulty serving legal process within the United States upon us or any of these persons. You may also have difficulty enforcing, both in and outside the United States, judgments you may obtain in United States courts against us or these persons in any action, including actions based upon the civil liability provisions of United States federal or state securities laws. Furthermore, there is substantial doubt that courts in the countries in which we or our subsidiaries are incorporated or where our assets or the assets of our subsidiaries, directors or officers and such experts are located (i) would enforce judgments of U.S. courts obtained in actions against us or our subsidiaries, directors or officers and such experts based upon the civil liability provisions of applicable U.S. federal and state securities laws or (ii) would enforce, in original actions, liabilities against us or our subsidiaries, directors or officers and such experts based on those law


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EXPENSES
The following are the estimated expenses of the issuance and distribution of the securities being registered under the registration statement of which this prospectus forms a part, all of which will be paid by us.
Commission Registration Fee
 
$
27,275
 
FINRA Filing Fee
   
*
 
NYSE Supplemental Listing Fee
   
*
 
Legal Fees and Expenses
   
*
 
Accounting Fees and Expenses
   
*
 
Printing and Engraving Expenses
   
*
 
Transfer Agent and Registrar Fees and Expenses
   
*
 
Indenture Trustee Fees and Expenses
   
*
 
Blue Sky Fees and Expenses
   
*
 
Miscellaneous
   
*
 
Total
   
*
 

* To be provided by a prospectus supplement or as an exhibit to a report on Form 6-K that is incorporated by reference into the registration statement of which this prospectus forms a part.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Seward & Kissel LLP, New York, New York, with respect to matters of the law of the Republic of the Marshall Islands and with respect to matters of United States and New York law.
EXPERTS
The consolidated financial statements of Diana Shipping Inc. appearing in Diana Shipping Inc.’s Annual Report (Form 20-F) for the year ended December 31, 2020 and the effectiveness of Diana Shipping Inc.’s internal control over financial reporting as of December 31, 2020 have been audited by Ernst & Young (Hellas) Certified Auditors-Accountants S.A., independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing. Ernst & Young (Hellas) Certified Auditors-Accountants S.A. is located at 8B Chimarras Street, 15125, Maroussi, Greece and is registered as a corporate body with the public register for company auditors-accountants kept with the Body of Certified Auditors Accountants (“SOEL”), Greece with registration number 107.

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WHERE YOU CAN FIND ADDITIONAL INFORMATION
As required by the Securities Act, we filed a registration statement relating to the securities offered by this prospectus with the Commission.  This prospectus is a part of that registration statement, which includes additional information.
Government Filings
We file annual and special reports with the Commission.  You may read and copy any document that we file and obtain copies at prescribed rates from the Commission’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549.  You may obtain information on the operation of the Public Reference Room by calling 1 (800) SEC-0330.  The Commission maintains a website (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically with the Commission.  Our filings are also available on our website at http://www.dianashippinginc.com.  The information on our website does not constitute a part of this prospectus.
Information Incorporated by Reference
The Commission allows us to “incorporate by reference” information that we file with it.  This means that we can disclose important information to you by referring you to those filed documents.  The information incorporated by reference is considered to be a part of this prospectus, and information that we file later with the Commission prior to the termination of this offering will also be considered to be part of this prospectus and will automatically update and supersede previously filed information, including information contained in this document.
We hereby incorporate by reference the documents listed below and any future filings made with the Commission under Section 13(a), 13(c) or 15(d) of the Exchange Act:

•
Our Annual Report on Form 20-F for the year ended December 31, 2020, filed with the Commission on March 12, 2021, which contains our audited consolidated financial statements for the most recent fiscal year for which those statements have been filed;

•
Our two Reports on Form 6-K, furnished to the Commission on January 8, 2021;

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Our Report on Form 6-K, furnished to the Commission on January 11, 2021;

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Our Report on Form 6-K, furnished to the Commission on January 21, 2021;

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Our Report on Form 6-K, furnished to the Commission on February 9, 2021;

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Our two Reports on Form 6-K, furnished to the Commission on February 24, 2021;

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Our Report on Form 6-K, furnished to the Commission on February 26, 2021;

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Our Report on Form 6-K, furnished to the Commission on March 9, 2021;

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Our Report on Form 6-K, furnished to the Commission on March 10, 2021;

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Our Report on Form 6-K, furnished to the Commission on March 11, 2021;

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Our Report on Form 6-K, furnished to the Commission on March 15, 2021;

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Our Report on Form 6-K, furnished to the Commission on March 17, 2021;

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Our Report on Form 6-K, furnished to the Commission on April 15, 2021;

•
Our Report on Form 6-K, furnished to the Commission on April 22, 2021;

•
Our Report on Form 6-K, furnished to the Commission on April 23, 2021;


27


•
Our Report on Form 6-K, furnished to the Commission on April 28, 2021;

•
Our Report on Form 6-K, furnished to the Commission on May 7, 2021;

•
Our Report on Form 6-K, furnished to the Commission on May 18, 2021;

•
Our Report on Form 6-K, furnished to the Commission on May 19, 2021;

•
Our two Reports on Form 6-K, furnished to the Commission on May 21, 2021;

•
Our Report on Form 6-K, furnished to the Commission on June 1, 2021;

•
Our Form 8-A12B, filed with the Commission on March 15, 2005, registering our common stock under Section 12(b) of the Exchange Act, and any amendment filed thereto;

•
Our Form 8-A12B, filed with the Commission on February 13, 2014, registering our 8.875% Series B Cumulative Redeemable Perpetual Preferred Stock under Section 12(b) of the Exchange Act, and any amendment filed thereto; and

•
Our Form 8-A12B, filed with the Commission on January 15, 2016, registering our preferred stock purchase rights under Section 12(b) of the Exchange Act, and any amendment filed thereto.
We are also incorporating by reference all subsequent annual reports on Form 20-F that we file with the Commission and certain reports on Form 6-K or other filings that we furnish to the Commission after the date of this prospectus (if they state that they are incorporated by reference into this prospectus), including all such reports filed after the date of the initial filing of the registration statement of which this prospectus forms a part and prior to effectiveness of such registration statement, until we file a post-effective amendment indicating that the offering of the securities made by this prospectus has been terminated.  In all cases, you should rely on the later information over different information included in this prospectus or the applicable prospectus supplement.
You should rely only on the information contained or incorporated by reference in this prospectus and any accompanying prospectus supplement.  We have not authorized any other person to provide you with different information.  If anyone provides you with different or inconsistent information, you should not rely on it.  We are not making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.  You should assume that the information appearing in this prospectus and any accompanying prospectus supplement as well as the information we previously filed with the Commission and incorporated by reference, is accurate as of the dates on the front cover of those documents only.  Our business, financial condition and results of operations and prospects may have changed since those dates.
You may request a free copy of the above-mentioned filings or any subsequent filings we incorporate by reference to this prospectus by writing or telephoning us at the following address:
Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece
011 30 (210) 947-0100
Information Provided by the Company
We will furnish holders of our common stock with annual reports containing audited financial statements and a report by our independent registered public accounting firm. The audited financial statements will be prepared in accordance with U.S. GAAP.  As a “foreign private issuer,” we are exempt from the rules under the Securities Exchange Act prescribing the furnishing and content of proxy statements to shareholders.  While we intend to furnish proxy statements to any shareholder in accordance with the rules of the NYSE, those proxy statements are not expected to conform to Schedule 14A of the proxy rules promulgated under the Exchange Act.  In addition, as a “foreign private issuer,” our officers and directors are exempt from the rules under the Exchange Act relating to short swing profit reporting and liability.


28
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8.  Indemnification of Directors and Officers.
The amended and restated bylaws of the Registrant provide that any person who is or was a director or officer of the Registrant, or is or was serving at the request of the Registrant as a director or officer of another, partnership, joint venture, trust or other enterprise shall be entitled to be indemnified by the Registrant upon the same terms, under the same conditions, and to the same extent as authorized by Section 60 of the BCA, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.  The Registrant shall have the power to pay in advance expenses a director or officer incurred while defending a civil or criminal proceeding, provided that the director or officer will repay the amount if it shall ultimately be determined that the he is not entitled to indemnification. In addition, as permitted by the Registrant’s amended and restated bylaws and Section 60 of the BCA, the Registrant maintains directors’ and officers’ insurance, pursuant to which the Registrant provides insurance coverage against certain liabilities to which the Registrant’s directors and officers may be subject, including liability incurred under U.S. securities law.
Section 60 of the BCA provides as follows regarding the indemnification of directors and officers:

(1)
Actions not by or in right of the corporation. A corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of no contest, or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

(2)
Actions by or in right of the corporation. A corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the corporation, or is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not, opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.

(3)
When director or officer successful. To the extent that a director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (1) or (2) of this section, or in the defense of a claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

(4)
Payment of expenses in advance. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section.

(5)
Indemnification pursuant to other rights. The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

(6)
Continuation of indemnification. The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

(7)
Insurance. A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director or officer against any liability asserted against him and incurred by him in such capacity whether or not the corporation would have the power to indemnify him against such liability under the provisions of this section.

II-1
Item 9. Exhibits.
A list of exhibits included as part of this registration statement is set forth on the Exhibit Index hereto, which is incorporated herein by reference.
Item 10. Undertakings.
The undersigned registrant hereby undertakes:

(a)
Under Rule 415 of the Securities Act,

(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement unless the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of a prospectus filed pursuant to Rule 424(b) that is part of the registration statement;

(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended;

(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

(2)
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(4)
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A. of Form 20-F at the start of any delayed offering or throughout a continuous offering.  Financial statements and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided, that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other information in the prospectus is at least as current as the date of those financial statements.  Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act of 1933 or Rule 3-19 under the Securities Act of 1933 if such financial statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Form F-3.

(5)(i)
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser;

(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this Registration Statement as of the date the filed prospectus was deemed part of and included in this Registration Statement; and

II-2

(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

(6)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)-(d)
Not applicable.

(e)
The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.

(f)-(g)
Not applicable.

(h)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

(i)
Not applicable.

(j)
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act.

(k)
Not applicable.

II-3

SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Athens, country of Greece on June 4, 2021.
 
DIANA SHIPPING INC.
     
 
By:
/s/ Semiramis Paliou
 
Name:
Semiramis Paliou
 
Title:
Director and Chief Executive Officer
     

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Anastassis Margaronis, Ioannis Zafirakis and Edward S. Horton as his or her true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 4,2021.
Signature
 
Title
     
/s/ Semiramis Paliou
 
Director and Chief Executive Officer
Semiramis Paliou
 
(Principal Executive Officer)
     
/s/ Simeon P. Palios
 
Director and Chairman of the Board
Simeon P. Palios
   
     
/s/ Anastassis Margaronis
 
Director and President
Anastassis Margaronis
   
     
/s/ Ioannis Zafirakis
 
Director, Chief Financial Officer, Chief Strategy Officer, Treasurer and Secretary
Ioannis Zafirakis
 
(Principal Financial Officer)
     
/s/ Eleftherios Papatrifon
 
Chief Operating Officer
Eleftherios Papatrifon
   
     
/s/ Maria Dede
 
Chief Accounting Officer
Maria Dede
 
(Principal Accounting Officer)
     
/s/ William Lawes
 
Director
William Lawes
   
     
/s/ Konstantinos Psaltis
 
Director
Konstantinos Psaltis
   
     
/s/ Kyriacos Riris
 
Director
Kyriacos Riris
   
     
/s/ Apostolos Kontoyannis
 
Director
Apostolos Kontoyannis
   
     
/s/ Konstantinos Fotiadis
 
Director
Konstantinos Fotiadis
   


AUTHORIZED UNITED STATES REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the undersigned, the duly undersigned representative of the Registrant in the United States, has signed this registration statement in Wilmington, Delaware on June 4, 2021.
 
BULK CARRIERS (USA) LLC
   
 
By:  Diana Shipping Inc., its Sole Member
     
 
By:
/s/ Semiramis Paliou
 
Name:
Semiramis Paliou
 
Title:
Director and Chief Executive Officer


EXHIBIT INDEX
Exhibit Number
Description


1.1
Form of Underwriting Agreement (for equity securities)*
1.2
Form of Underwriting Agreement (for debt securities)*
4.1
4.2
4.3
4.4
Form of Preferred Stock Certificate*
4.5
4.6
4.7
4.8
4.9
4.10
Form of Warrant Agreement*
4.11
Form of Purchase Contract*
4.12
Form of Rights Agreement*
4.13
Form of Unit Agreement*
4.14
5.1
8.1
23.1
Consent of Seward & Kissel (included in Exhibit 5.1 and Exhibit 8.1)
23.2
24.1
25.1
Form of T-1 Statement of Eligibility (senior debt securities indenture)**
25.2
Form of T-1 Statement of Eligibility (subordinated debt securities indenture)**

______________
* To be filed either as an amendment to this registration statement or as an exhibit to a report of the Registrant filed pursuant to the Exchange Act and incorporated by reference into this registration Statement.
** To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.

(1)
Filed as Exhibit 2.1 to the Registrant’s annual report on Form 20-F filed with the Commission on March 28, 2016.
(2)
Filed as Exhibit 3.1 to the Registrant’s Form 8-A12B filed with the Commission on January 15, 2016.
(3)
Filed as Exhibit 4.1 to the Registrant’s Form 8-A12B filed with the Commission on January 15, 2016.
(4)
Filed as Exhibit 4.1 to the Registrant’s Form 8-A12B filed with the Commission on February 13, 2014
(5)
Filed as Exhibit 3.3 to the Registrant’s Form 8-A12B filed with the Commission on February 13, 2014.
(6)
Filed as Exhibit 3.1 to the Registrant’s Form 6-K filed with the Commission on February 6, 2019.
(7)
Filed as Exhibit 4.6 to the Registrant’s Form F-3 filed with the Commission on July 2, 2015.
(8)
Filed as Exhibit 4.7 to the Registrant’s Form F-3 filed with the Commission on July 2, 2015.

Exhibit 4.14



US$91,000,000

Secured Loan Agreement
Dated 14 May 2021

(1)
Lelu Shipping Company Inc.
Rairok Shipping Company Inc.
Lae Shipping Company Inc.
Namu Shipping Company Inc.
Fayo Shipping Company Inc.
Ujae Shipping Company Inc.
(as Borrowers)

(2)
Diana Shipping Inc.
(as Original Guarantor)

(3)
The Financial Institutions
listed in Part I of Schedule 1
(as Original Lenders)

(4)
 
 
(5)
ABN AMRO Bank N.V.
(as Lender)
 
ABN AMRO Bank N.V.
(as Facility Agent)

(5)
ABN AMRO Bank N.V.
(as Swap Provider)

(6)
ABN AMRO Bank N.V.
(as Security Agent)

(7)
ABN AMRO Bank N.V.
(as Arranger)





   







Contents
Page
Section 1
Interpretation
2
1
Definitions and Interpretation
2
Section 2
The Loan
26
2
The Loan
26
3
Purpose
26
4
Conditions of Utilisation
26
Section 3
Utilisation
28
5
Advance
28
Section 4
Repayment, Prepayment and Cancellation
29
6
Repayment
29
7
Illegality, Prepayment and Cancellation
29
Section 5
Costs of Utilisation
33
8
Interest
33
9
Interest Periods
34
10
Changes to the Calculation of Interest
35
11
Fees
36
Section 6
Additional Payment Obligations
37
12
Tax Gross Up and Indemnities
37
13
Increased Costs
46
14
Other Indemnities
48
15
Mitigation by the Lenders
51
16
Costs and Expenses
51
Section 7
Accounts and Application of Earnings
53
17
Accounts
53
18
Additional Security
54
19
Guarantee and Indemnity
55

Section 8
Representations, Undertakings and Events of Default
59
20
Representations
59
21
Information Undertakings
65
22
Financial Covenants
68
23
General Undertakings
69
24
Events of Default
77
Section 9
Changes to Parties
83
25
Changes to the Lenders
83
26
Changes to the Obligors
89
Section 10
The Finance Parties
91
27
Role of the Agent, the Security Agent
91
28
Parallel Debt (Covenant to pay the Security Agent)
103
29
Application of Proceeds
104
30
Conduct of Business by the Finance Parties
106
31
Sharing among the Finance Parties
106
Section 11
Administration
108
32
Payment Mechanics
108
33
Set-Off
111
34
Notices
111
35
Calculations and Certificates
114
36
Partial Invalidity
115
37
Remedies and Waivers
115
38
Amendments and Waivers
115
39
Confidentiality
122
40
Disclosure of Lender Details by Agent
126
41
Counterparts
128
42
Joint and Several Liability
128
Section 12
Governing Law and Enforcement
130
43
Governing Law
130

44
Enforcement
130
Schedule 1
Part I The Original Lenders
131
Schedule 2
Part I Initial Conditions Precedent
132
 
Part II Utilisation Conditions Precedent
135
 
Part IIIConditions Subsequent
138
Schedule 3
Utilisation Request
139
Schedule 4
 
141
 
Form of Transfer Certificate
141
Schedule 5
Form of Assignment Agreement
144
Schedule 6
Form of Accession Deed
148
Schedule 7
Form of Compliance Certificate
151
Schedule 8
 
152
 
Additional Definitions
152
Schedule 9
FORM OF SUSTAINABILITY PERFORMANCE CERTIFICATE
154



Loan Agreement
Dated                                               2021  
Between:
(1)
Lelu Shipping Company Inc. ("Lelu"), Rairok Shipping Company Inc. ("Rairok"), Lae Shipping Company Inc. ("Lae"), Namu Shipping Company Inc. ("Namu"), Fayo Shipping Company Inc. ("Fayo"), and Ujae Shipping Company Inc ("Ujae"), each a company incorporated under the law of the Republic of the Marshall Islands, with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (together, the "Borrowers" and each a "Borrower") jointly and severally; and
(2)
Diana Shipping Inc., a company incorporated under the law of the Republic of the Marshall Islands, with its registered address at Trust Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960 (the "Original Guarantor"); and
(3)
The Financial Institutions listed in Part I of Schedule 1 (The Parties), each acting through its Facility Office (together, the "Original Lenders" and each an "Original Lender"); and
(4)
ABN AMRO Bank N.V., a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (in that capacity, the "Arranger"); and
(5)
ABN AMRO Bank N.V., a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (in that capacity, the "Agent"); and
(6)
ABN AMRO Bank N.V., a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands, (in that capacity, the "Sustainability Coordinator"); and
(7)
ABN AMRO Bank N.V., a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (in that capacity, the "Swap Provider"); and
(8)
ABN AMRO Bank N.V., a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands, acting as security agent through its office at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands (in that capacity, the "Security Agent").

It is agreed as follows:
Page 1

Section 1
Interpretation
1
Definitions and Interpretation
1.1
Definitions   In this Agreement:
"Accession Deed" means a document substantially in the form set out in Schedule 6 (Form of Accession Deed).
"Account Holder" means ABN AMRO Bank N.V. a banking corporation duly incorporated under the laws of the Netherlands whose registered office is at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands acting through its branch at Coolsingel 93, 3012 AE Rotterdam, The Netherlands or any other bank or financial institution which at any time, with the Security Agent's prior written consent, holds the Earnings Accounts.
"Account Security Deed" means a first priority account security deed in respect of all amounts from time to time standing to the credit of the Earnigns Accounts.
"Additional Guarantor" means a company which becomes an Additional Guarantor in accordance with Clause 26 (Changes to the Obligors).
"Administration" has the meaning given to it in paragraph 1.1.3 of the ISM Code.
"Affiliate" means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.
"Annex VI" means Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships 1973 (as modified in 1978 and 1997).
"Approved Shipbroker" means Affinity Shipbrokers, Arrow Valuations, Associated Shipbroking Monaco, Braemar ACM Valuations, BRS Barry Rogliano Salles, Cass Technava, Clarksons, Drewry Maritime Services, Fearnleys, Galbraith, Gibson Shipbrokers, Grieg Shipbrokers, Howe Robinson, Kontiki, Lorentzen & Stemoco, Maersk Shipbrokers, Pareto Shipbrokers, SSY, Sterling Shipbrokers, Vessels Value.com and any ship broker approved by the Agent in its absolute discretion.
"Arranger" means ABN AMRO Bank N.V. or any entity within the ABN AMRO Bank N.V. group.
"Assigned Property" means the Insurances, the Earnings, the Charter Rights and the Requisition Compensation.
"Assignments" means first priority deeds of assignment of the Insurances, Earnings, Charters and Requisition Compensation of the Borrowers' Vessels and second priority deeds of assignment of the Insurances, Earnings, Charters, and Requisition Compensation of the Collateral Vessels and first priority assignments (in the case of the Borrowers' Vessels) and second priority assignments (in the case of the Collateral Vessels) of the Insurances from the Managers contained in the Managers' Undertakings.
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"Assignment Agreement" means an agreement substantially in the form set out in Schedule 5 (Form of Assignment Agreement) or any other form agreed between the relevant assignor and assignee.
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.
"Availability Period" means the period from and including the date of this Agreement to and including 11 June 2021 or such later date as may be agreed by the Lenders.
"Borrowers' Vessels" means Vessel A, Vessel B, Vessel C, Vessel D, Vessel E and Vessel F and each a "Borrowers' Vessel".
"Break Costs" means the amount (if any) by which:

(a)
the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in the Loan or an Unpaid Sum to the last day of the current Interest Period in respect of the Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:

(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Athens, New York, Amsterdam and Rotterdam.
"Charged Property" means all of the assets of the Obligors which from time to time are, or are expressed to be, the subject of the Security Documents.
"Charters" means any time or bareboat charter or contract of employment in respect of a Vessel with a duration exceeding (or capable of exceeding) 12 months and "Charter" means any one of them.
"Charterer" means any entity which has entered into or will enter into a Charter with a Borrower in respect of Vessel.
"Code" means the US Internal Revenue Code of 1986.
"Collateral Facility" means a facility agreement dated 27 June 2019 (as amended and restated on 22 May 2020) entered into between, among others, the Collateral Guarantors (as joint and several borrowers) and (2) ABN AMRO Bank N.V. (as lender, agent and security agent), in connection with a term loan of up to $25,000,000.
"Collateral Guarantors" means Kaben Shipping Company Inc., Taroa Shipping Company Inc., Gala Properties Inc, Tuvalu Shipping Company Inc., Jabat Shipping Company Inc. and Bikini Shipping Company Inc., each a company incorporated under the laws of the Republic of the Marshall Islands, with registered address at Trust
Page 3

Company Complex, Ajeltake Road, Ajeltake Island, Majuro, Marshall Islands MH 96960.
"Collateral Vessels" means m.v. "ISMENE" with IMO 9493535, m.v. "SELINA" with IMO 9473183, m.v. "HOUSTON" with IMO 9539602, m.v. "NEW YORK" with IMO 9405332, m.v. "MYRTO" with IMO 9518086, m.v. "MAIA" with IMO 9422938.
"Commitment" means:

(a)
in relation to an Original Lender, the amount set opposite its name under the heading "Commitment" in Part I 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,
to the extent not cancelled, reduced or transferred by it under this Agreement.
"Commitment Fee" means the commitment fee to be paid by the Borrowers to the Agent under Clause 11.1 (Commitment Fee).
"Compliance Certificate" means a certificate substantially in the form set out in Schedule 7 (Form of Compliance Certificate).
"Confidential Information" means all information relating to any Obligor, any other member of the Group, the Finance Documents or the Loan of which a Finance Party becomes aware in its capacity as, or for the purpose of becoming, a Finance Party or which is received by a Finance Party in relation to, or for the purpose of becoming a Finance Party under, the Finance Documents or the Loan from either:

(a)
any Obligor , any other 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 Obligor , any other member of the Group or any of its advisers,
in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information but excludes information that:

(i)
is or becomes public information other than as a direct or indirect result of any breach by that Finance Party of Clause 39 (Confidentiality); or

(ii)
is identified in writing at the time of delivery as non-confidential by any Obligor, any other 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 (a) or (b) 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 any Obligor or any other member of 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;
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"Confidentiality Undertaking" means a confidentiality undertaking substantially in a recommended form of the Loan Market Association at the relevant time.
"Confirmation" means a Confirmation exchanged or deemed to be exchanged between the Swap Provider and the Borrowers as contemplated by the Master Agreement.
"Credit Support Document" means any document described as such in the Master Agreement and any other document referred to in any such document which has the effect of creating security in favour of any of the Finance Parties.
"Credit Support Provider" means any person (other than a Borrower) described as such in the Master Agreement.
"CTA" means the Corporation Tax Act 2009.
"Default" means an Event of Default or any event or circumstance which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
"Defaulting Lender" means any Lender:

(a)
which has failed to make its participation in the Loan available (or has notified the Agent or the Borrowers (which have notified the Agent) that it will not make its participation in the Loan available) by the Utilisation Date of the Loan in accordance with Clause 5.3 (Lenders' participation); or

(b)
which has otherwise rescinded or repudiated a Finance Document; or

(c)
with respect to which an Insolvency Event has occurred and is continuing,
unless, in the case of (a):

(i)
its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event; and
payment is made within three Business Days of its due date; or

(ii)
the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
"Disruption Event" means either or both of:

(a)
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Loan (or otherwise in order for the transactions contemplated by the Finance Documents to be carried
Page 5

out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b)
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i)
from performing its payment obligations under the Finance Documents; or

(ii)
from communicating with other Parties in accordance with the terms of the Finance Documents,
and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.
"DOC" means, in relation to the ISM Company, a valid Document of Compliance issued for the ISM Company by the Administration under paragraph 13.2 of the ISM Code.
"Earnings" means all hires, freights, passage moneys, pool income and other sums payable to or for the account of a Borrower and/or Charterer in respect of a Vessel including (without limitation) all remuneration for salvage and towage services, demurrage and detention moneys, contributions in general average, compensation in respect of any requisition for hire, and damages and other payments (whether awarded by any court or arbitral tribunal or by agreement or otherwise) for breach, termination or variation of any contract for the operation, employment or use of a Vessel.
"Earnings Accounts" means the bank accounts to be opened in the names of the Borrowers with the Account Holder and designated Lelu Shipping Company Inc. – "Earnings Account", Rairok Shipping Company Inc. – "Earnings Account", Lae Shipping Company Inc. – "Earnings Account", Namu Shipping Company Inc. – "Earnings Account", Fayo Shipping Company Inc. – "Earnings Account" and Ujae Shipping Company Inc. – "Earnings Account".
"Encumbrance" means a mortgage, charge, assignment, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
"Environmental Approval" means any present or future permit, ruling, variance or other Authorisation required under Environmental Laws.
"Environmental Claim" means any claim, proceeding, formal notice or investigation by any governmental, judicial or regulatory authority or any other person which arises out of an Environmental Incident or an alleged Environmental Incident or which relates to any Environmental Law and, for this purpose, "claim" includes a claim for damages, compensation, contribution, injury, fines, losses and penalties or any other payment of any kind, including in relation to clean-up and removal, whether or not similar to the foregoing; an order or direction to take, or not to take, certain action or to desist from or suspend certain action; and any form of enforcement or regulatory action, including the arrest or attachment of any asset.
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"Environmental Incident" means:

(a)
any release, emission, spill or discharge into or upon the air, sea, land or soils (including the seabed) or surface water of Environmentally Sensitive Material within or from a Vessel; or

(b)
any incident in which Environmentally Sensitive Material is released, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water from a vessel other than a Vessel and which involves a collision between a Vessel and such other vessel or some other incident of navigation or operation, in either case, in connection with which a Vessel is actually or potentially liable to be arrested, attached, detained or injuncted and a Vessel, any Obligor, any operator or manager of a Vessel or any combination of them 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, emitted, spilled or discharged into or upon the air, sea, land or soils (including the seabed) or surface water otherwise than from a Vessel and in connection with which a Vessel is actually or potentially liable to be arrested, attached, detained or injuncted and/or where any Obligor, any operator or manager of a Vessel or any combination of them is at fault or allegedly at fault or otherwise liable to any legal or administrative action, other than in accordance with an Environmental Approval.
"Environmental Law" means any present or future law or regulation relating to pollution or protection of human health or the environment, to conditions in the workplace, to the carriage, generation, handling, storage, use, release or spillage of Environmentally Sensitive Material or to actual or threatened releases of Environmentally Sensitive Material.
"Environmentally Sensitive Material" means all contaminants, oil, oil products, toxic substances and any other substance (including any chemical, gas or other hazardous or noxious substance) which is (or is capable of being or becoming) polluting, toxic or hazardous.
"EU Ship Recycling Regulation" means Regulation (EU) No 1257/2013 of the European Parliament and of the Council of 20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 and Directive 2009/16/EC (Text with EEA relevance).
"Event of Default" means any event or circumstance specified as such in Clause 24 (Events of Default).
"Facility Office" means:

(a)
in respect of a Lender, the office or offices notified by that Lender to the Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement; or
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(b)
in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.
"Facility Period" means the period beginning on the date of this Agreement and ending on the date when the whole of the Indebtedness has been paid in full and the Obligors have ceased to be under any further actual or contingent liability to the Finance Parties under or in connection with the Finance Documents.
"FATCA" means:

(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 (a); or

(c)
any agreement pursuant to the implementation of any treaty, law or regulation referred to in (a) or (b) with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
"FATCA Application Date" means:

(a)
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014; or

(b)
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within (a), the first date from which such payment may become subject to a deduction or withholding required by FATCA.
"FATCA Deduction" means a deduction or withholding from a payment under a Finance Document required by FATCA.
"FATCA Exempt Party" means a Party that is entitled to receive payments free from any FATCA Deduction.
"Fee Letter" means any letter or letters dated on or about the date of this Agreement between the Agent and the Borrowers or the Security Agent and the Borrowers setting out any of the fees referred to in Clause 11 (Fees).
"Finance Documents" means this Agreement, the Master Agreement, the Security Documents, any Accession Deed, any Compliance Certificate, the Utilisation Request, the Fee Letter and any other document designated as such by the Agent and the Borrowers.
"Finance Parties" means the Agent, the Security Agent, the Swap Provider and the Lenders.
"Financial Indebtedness" means any indebtedness for or in respect of:

(a)
moneys borrowed and debit balances at banks or other financial institutions;
Page 8



(b)
any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);

(c)
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)
the amount of any liability in respect of any lease or hire purchase contract, a liability under which would, in accordance with GAAP, be treated as a balance sheet liability;

(e)
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);

(f)
any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

(g)
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of (i) an underlying liability of an entity which is not an Obligor or a member of the Group which liability would fall within one of the other sections of this definition or (ii) any liabilities of any Obligor or any other member of the Group relating to any post-retirement benefit scheme;

(h)
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the end of the Facility Period or are otherwise classified as borrowings under GAAP;

(i)
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 30 days after the date of supply;

(j)
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under GAAP; and

(k)
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in (a) to (j).
"GAAP" means generally accepted accounting principles in the US, including IFRS.
"Group" means the Original Guarantor and its Subsidiaries.
"Guarantee" means a guarantee and indemnity in respect of the obligations of each other Obligor granted by each Guarantor and contained in Clause 18.2 (Guarantee and Indemnity).
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"Guarantor" means an Original Guarantor or an Additional Guarantor, unless it has ceased to be a Guarantor in accordance with Clause 26 (Changes to the Obligors).
"Holding Company" means, in relation to a person, any other person in respect of which it is a Subsidiary.
"IAPPC" means a valid international air pollution prevention certificate for a Vessel issued under Annex VI.
"IFRS" means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
"Indebtedness" means the aggregate from time to time of: the amount of the Loan outstanding; all accrued and unpaid interest on the Loan; and all other sums of any nature (together with all accrued and unpaid interest on any of those sums) payable to any of the Finance Parties under all or any of the Finance Documents.
"Insolvency Event" in relation to an entity means that the entity:

(a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);

(b)
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;

(c)
makes a general assignment, arrangement or composition with or for the benefit of its creditors;

(d)
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

(e)
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in (d) and:

(i)
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

(ii)
is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
Page 10



(f)
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

(g)
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in (d));

(h)
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

(i)
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in (a) to (i); or

(j)
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
"Insurances" means all policies and contracts of insurance (including all entries in protection and indemnity or war risks associations) which are from time to time taken out or entered into in respect of or in connection with a Vessel or her increased value or her Earnings and (where the context permits) all benefits under such contracts and policies, including all claims of any nature and returns of premium.
"Interest Period" means each period determined in accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 8.4 (Default interest).
"Interpolated Screen Rate" means, in relation to LIBOR, the rate which results from interpolating on a linear basis between:

(a)
the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the relevant Interest Period; and

(b)
the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the relevant Interest Period,
each as of 11.00 a.m. on the Quotation Day for dollars.
"Inventory of Hazardous Materials" means a statement of compliance issued by the relevant classification society which includes a list of any and all materials known to be potentially hazardous utilised in the construction of the Vessel also referred to as List of Hazardous Materials.
"ISM Code" means the International Management Code for the Safe Operation of Ships and for Pollution Prevention.
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"ISM Company" means, at any given time, the company responsible for a Vessel's compliance with the ISM Code under paragraph 1.1.2 of the ISM Code.
"ISPS Code" means the International Ship and Port Facility Security Code.
"ISSC" means a valid international ship security certificate for a Vessel issued under the ISPS Code.
"ITA" means the Income Tax Act 2007.
"Joint Venture" means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
"Legal Opinion" means any legal opinion delivered to the Agent under Clause 4.1 (Initial conditions precedent) or Clause 4.3 (Conditions subsequent).
"Legal Reservations" means:

(a)
the principle that equitable remedies may be granted or refused at the discretion of a court and the limitation of enforcement by laws relating to insolvency, reorganisation and other laws generally affecting the rights of creditors;

(b)
the time barring of claims under the Limitation Acts, the possibility that an undertaking to assume liability for or indemnify a person against non-payment of UK stamp duty may be void and defences of set-off or counterclaim;

(c)
similar principles, rights and defences under the laws of any Relevant Jurisdiction; and

(d)
any other matters which are set out as qualifications or reservations as to matters of law of general application in the Legal Opinions.
"Lender" means:

(a)
any Original Lender; and

(b)
any bank, financial institution, trust, fund or other entity which has become a Party as a Lender in accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party as such in accordance with the terms of this Agreement.
"LIBOR" means:

(a)
the applicable Screen Rate; or

(b)
(if no Screen Rate is available for the relevant Interest Period) the Interpolated Screen Rate; or

(c)
(if (i) no Screen Rate is available for the currency of the Loan or (ii) no Screen Rate is available for the relevant Interest Period and it is not possible to calculate the Interpolated Screen Rate) the Reference Bank Rate,
Page 12


as of 11.00 a.m. on the Quotation Day for dollars and for a period equal in length to the relevant Interest Period and, if that rate is less than zero, LIBOR shall be deemed to be zero.
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984.
"Loan" means the aggregate amount advanced or to be advanced by the Lenders to the Borrowers under Clause 2 (The Loan) or, where the context permits, the principal amount advanced and at any relevant time being outstanding.
"Majority Lenders" means a Lender or Lenders whose Commitments aggregate more than 662/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3% of the Total Commitments immediately prior to the reduction).
"Management Agreements" means the agreements for the management of the Vessels entered or to be entered into between the Borrowers or the Collateral Guarantors respectively and the Manager.
"Managers" means Diana Shipping and/or Diana Wilhelmsen Management Limited a company incorporated and existing under the laws of the Republic of Cyprus having its registered office at 21 Vasili Michailidi Street, 3026 Limassol, Cyprus or any other company which the Agent (acting on the instructions of the Majority Lenders) may approve from time to time as the managers of a Vessel.
"Managers' Undertakings" means written undertakings of the Managers in form and substance acceptable to the Agent.
"Mandatory Cost" means, in respect of the Lenders, the cost to a Lender (as conclusively certified by it) of complying with any requirements of any competent authority or agency relating to monetary control and liquidity (including reserve asset and/or special deposit or liquidity requirements or other requirements having the same or a similar purpose whether or not having the force of law but with which it is customary to comply) in relation to making available the Loan.
"Margin" means 2.15 % per annum (as adjusted by the Sustainability Margin Adjustment).
"Market Value" means the value of a Borrowers’ Vessel or any other vessel over which additional security has been created or which is being offered as additional security in accordance with Clause 18 (Additional Security) or in relation to the Fleet Vessels conclusively determined by an Approved Shipbroker appointed by, and reporting to, the Agent on the basis of a charter-free sale for prompt delivery for cash at arm's length on normal commercial terms as between a willing seller and a willing buyer and evidenced by a valuation (in form and substance acceptable to the Agent) of that Borrowers’ Vessel or Fleet Vessels or vessel addressed to the Agent certifying a value for that Borrowers’ Vessel or Fleet Vessel and, where two valuations have been obtained, such value shall be the arithmetic average of two (2) valuations (in form and substance acceptable to the Agent) of that Borrowers’ Vessel addressed to the Agent certifying the value for that Borrowers’ Vessel.
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"Master Agreement" means any ISDA Master Agreement (or any other form of master agreement relating to interest or currency exchange transactions) entered into between the Swap Provider and the Borrowers before or during the Facility Period, including each Schedule to any Master Agreement and each Confirmation exchanged under any Master Agreement.
"Master Agreement Proceeds" means any and all sums due and payable to the Borrowers or any of them under the Master Agreement following an Early Termination Date (subject always to all rights of netting and set-off contained in the Master Agreement) and all rights to require and enforce the payment of those sums.
"Master Agreement Proceeds Charge" means a first priority deed of charge over the Master Agreement Proceeds.
"Material Adverse Effect" means in the reasonable opinion of the Majority Lenders a material adverse effect on:

(a)
the business, operations, property, condition (financial or otherwise) or prospects of any Obligor or the Group taken as a whole; or

(b)
the ability of any Obligor to perform its obligations under any Finance Document; or

(c)
the validity or enforceability of, or the effectiveness or ranking of any Encumbrance granted or purporting to be granted pursuant to any of, the Finance Documents or the rights or remedies of any Finance Party under any of the Finance Documents.
"Maximum Loan Amount" means an amount equal to the lesser of:

(a)
$91,000,000; and

(b)
65% of the aggregate Market Value of the Borrowers' Vessels on the Utilisation Date evidenced by the valuations received by the Agent under Clause 4.1 (Initial conditions precedent).
"Minimum Liquidity Amount" means an aggregate amount of not less than $400,000.
"Month" means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

(a)
(subject to (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;

(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; and

(c)
If an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
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The above rules will only apply to the last Month of any period.
"Mortgages" means first preferred mortgages over the Borrowers' Vessels and the second preferred mortgages over the Collateral Vessels.
"New Lender" has the meaning given to that term in Clause 25.1 (Assignments and transfers by the Lenders).
"Non-Consenting Lender" has the meaning given to that term in Clause 38.5.4 (Replacement of Lender).
"Obligor" means each Borrower, the Guarantor and each Collateral Guarantor.
"Original Financial Statements" means the audited consolidated financial statements of the Original Guarantor for the financial year ended 31 December 2020.
"Original Jurisdiction" means, in relation to an Obligor, the jurisdiction under whose laws that Obligor is incorporated as at the date of this Agreement or, in the case of an Additional Guarantor, as at the date on which that Additional Guarantor becomes Party as a Guarantor.
"Party" means a party to this Agreement.
"Permitted Disposal" means any sale, lease, licence, transfer or other disposal:

(a)
of assets in exchange for other assets comparable or superior as to type, value and quality (other than an exchange of a non-cash asset for cash);

(b)
of obsolete or redundant equipment for cash;

(c)
arising as a result of any Permitted Encumbrance; and

(d)
of a Vessel made in accordance with this Agreement.
"Permitted Encumbrance" means:

(a)
any Encumbrance which has the prior written approval of the Agent;

(b)
any Encumbrance created or expressed to be created under or pursuant to or evidenced by the Security Documents;

(c)
any Encumbrance arising by operation of law and in the ordinary course of trading and not as a result of any default or omission by an Obligor;

(d)
any Quasi-Security arising as a result of a disposal which is a Permitted Disposal.

(e)
any right of pledge and/or set off under and pursuant to the general banking conditions (Algemene Bankvoorwaarden) of ABN AMRO Bank N.V.
"Prohibited Person" means any person (whether designated by name or by reason of being included in a class of persons) against whom Sanctions are directed.
"Quasi-Security" has the meaning given to that term in Clause 23.9 (Negative pledge).
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"Quotation Day" means, in relation to any period for which an interest rate is to be determined (for dollars) two Business Days before the first day of that period, unless market practice differs in the Relevant Market, in which case the Quotation Day will be determined by the Agent in accordance with market practice in the Relevant Market (and if quotations would normally be given by leading banks in the Relevant Market on more than one day, the Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Property.
"Reference Bank Rate" means the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Agent at its request by the Reference Banks:

(a)
in relation to LIBOR as either:

(i)
if:

(A)
the Reference Bank is a contributor to the applicable Screen Rate; and
(B) it consists of a single figure,
the rate (applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

(ii)
in any other case, the rate at which the relevant Reference Bank could fund itself in the relevant currency for the relevant period with reference to the unsecured wholesale funding market.
"Reference Banks" means, in relation to LIBOR, the principal London offices of ABN AMRO Bank N.V. or such other banks as may be appointed by the Agent.
"Related Fund" in relation to a fund (the "first fund"), means a fund which is managed or advised by the same investment manager or investment adviser as the first fund or, if it is managed by a different investment manager or investment adviser, a fund whose investment manager or investment adviser is an Affiliate of the investment manager or investment adviser of the first fund.
"Relevant Documents" means the Finance Documents, the Management Agreements and any Charter.
"Relevant Market" means the London interbank market.
"Relevant Jurisdiction" means, in relation to an Obligor:

(a)
its Original Jurisdiction;

(b)
any jurisdiction where any asset subject to or intended to be subject to a Security Document to be executed by it is situated;

(c)
any jurisdiction where it conducts its business; and
Page 16



(d)
the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by it.
"Repayment Date" means each date for payment of a Repayment Instalment in accordance with Clause 6 (Repayment).
"Repayment Instalment" means any instalment of the Loan to be repaid by the Borrowers under Clause 6 (Repayment).
"Repeating Representations" means each of the representations set out in Clause 20 (Representations) other than the representations contained in Clauses 20.1.12 (a) to (c), 20.1.8 (No filing or stamp taxes), 20.1.9 (Deduction of Tax) and 20.1.16 (Taxation).
"Representative" means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.
"Requisition Compensation" means all compensation or other money which may from time to time be payable to a Borrower as a result of a Vessel being requisitioned for title or in any other way compulsorily acquired (other than by way of requisition for hire).
"Restricted Party" means a person:

(a)
listed on or owned or controlled by a person listed on any Sanctions List; or

(b)
located in, organised under the laws of or owned or controlled by, or acting on behalf of, a person located in or organised under the laws of a country or territory which is a subject of country-wide or territory-wide Sanctions (including, without limitation, at the date of this Agreement, Cuba, Iran, North Korea and Syria); or

(c)
otherwise a subject of Sanctions.
"Sanctions" means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority with which the Borrowers (or Lenders) are legally bound to comply.
"Sanctions Authority" means:

(a)
the Security Council of the United Nations;

(b)
the United States;

(c)
the United Kingdom;

(d)
the European Union

(e)
any member state of the European Union (including, without limitation, The Netherlands);

(f)
any country in which any Obligor is registered or has material (financial or otherwise) interests or operations); and
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(g)
the governments and official institutions or agencies of any of paragraphs (a) to (f) above, including without limitation the U.S. Office of Foreign Asset Control (“OFAC”), the U.S. Department of State, and Her Majesty's Treasury (“HMT”).
"Sanctions List" means the Specially Designated Nationals and Blocked Persons list maintained by OFAC, the Consolidated List of Financial Sanctions Targets maintained by HMT, or any similar list maintained by, or public announcement of Sanctions designation made by, a Sanctions Authority, each as amended, supplemented or substituted from time to time.
"Screen Rate" means in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.  If such page or the service ceases to be available, the Agent may specify another page or service displaying the relevant rate after consultation with the Borrowers.
"Secured Parties" means each Finance Party from time to time party to this Agreement and any Receiver or Delegate.
"Security Documents" means the Mortgages, the Assignments, each Guarantee, the Account Security Deed, the Share Securities, the Managers' Undertakings, the Master Agreement Proceeds Charge and any other Credit Support Documents or (where the context permits) any one or more of them, and any other agreement or document which may at any time be executed by any person as security for the payment of all or any part of the Indebtedness.
"Share Securities" means first priority pledges of all the issued shares of the Borrowers.
"SMC" means a valid safety management certificate issued for a Vessel by or on behalf of the Administration under paragraph 13.7 of the ISM Code.
"Subsidiary" means a subsidiary undertaking within the meaning of section 1162 of the Companies Act 2006.
"Sustainability Margin Adjustment" means the sustainability margin adjustment referred to in Clause 8.2 (Sustainability Margin Adjustment).
"Sustainability Targets" means the sustainability targets referred to in Clause 8.2 (Sustainability Margin Adjustment).
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Termination Date" means the date falling on the earlier of (a) five (5) years from the Utilisation Date and (b) 11th June 2026.
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"Total Commitments" means the aggregate of the Commitments.
"Total Loss" means:

(a)
an actual, constructive, arranged, agreed or compromised total loss of a Vessel; or

(b)
the requisition for title or compulsory acquisition of a Vessel by any government or other competent authority (other than by way of requisition for hire); or

(c)
the capture, seizure, arrest, detention, hijacking, theft, condemnation as prize, confiscation or forfeiture of a Vessel (not falling within (b)), unless that Vessel is released and returned to the possession of the relevant Borrower within 30 days after the capture, seizure, arrest, detention, hijacking, theft, condemnation as prize, confiscation or forfeiture in question.
"Transfer Certificate" means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrowers.
"Transfer Date" means, in relation to an assignment or a transfer, the later of:

(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.
"Treasury Transactions" means any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price.
"Trust Property" means:

(a)
all benefits derived by the Security Agent from any Finance Document; and

(b)
all benefits arising under (including, without limitation, all proceeds of the enforcement of) each of the Security Documents,
excluding any benefits arising solely for the benefit of the Security Agent.
"Unpaid Sum" means any sum due and payable but unpaid by any Obligor under the Finance Documents.
"US" means the United States of America.
"Utilisation" means any part of the Loan advanced or to be advanced pursuant to a Utilisation Request.
"Utilisation Date" means the date on which the Loan is advanced under Clause 5 (Advance).
"Utilisation Request" means a notice substantially in the form set out in Schedule 3 (Utilisation Request).
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"VAT" means:

(a)
any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

(b)
any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in (a), or imposed elsewhere.
"Vessel A" means the m.v. "SANTA BARBARA" with IMO number 9675951 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Lelu and everything now or in the future belonging to her on board and ashore.
"Vessel B" means the m.v. "MEDUSA" with IMO number 9461130 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Rairok and everything now or in the future belonging to her on board and ashore.
"Vessel C" means the m.v. "LOS ANGELES" with IMO number 9588483 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Lae and everything now or in the future belonging to her on board and ashore.
"Vessel D" means the m.v. "PHILADELPHIA" with IMO number 9588495 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Namu and everything now or in the future belonging to her on board and ashore.
"Vessel E" means the m.v. "ARTEMIS" with IMO number 9335089 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Fayo and everything now or in the future belonging to her on board and ashore.
"Vessel F" means the m.v. "NEW ORLEANS" with IMO number 9743265 currently registered under the flag of the Republic of the Marshall Islands in the ownership of Ujae and everything now or in the future belonging to her on board and ashore.
"Vessels" means the Borrowers' Vessels and the Collateral Vessels and each a "Vessel".
Construction   Unless a contrary indication appears, any reference in this Agreement to:

1.1.1
any "Lender", any "Borrower", any "Guarantor", the "Agent", the "Swap Provider", any "Secured Party", the "Security Agent", any "Finance Party" or any "Party" shall be construed so as to include its successors in title, permitted assignees and permitted transferees to, or of, its rights and/or obligations under the Finance Documents;

1.1.2
"assets" includes present and future properties, revenues and rights of every description;

1.1.3
a "Finance Document", a "Security Document", a "Relevant Document" or any other agreement or instrument is a reference to that Finance Document, Security Document, Relevant Document or other
Page 20

agreement or instrument as amended, novated, supplemented, extended or restated from time to time;

1.1.4
a "group of Lenders" includes all the Lenders;

1.1.5
"guarantee" means (other than in Clause 18.2 (Guarantee and Indemnity)) any guarantee, letter of credit, bond, indemnity or similar assurance against loss, or any obligation, direct or indirect, actual or contingent, to purchase or assume any indebtedness of any person or to make an investment in or loan to any person or to purchase assets of any person where, in each case, such obligation is assumed in order to maintain or assist the ability of such person to meet its indebtedness;

1.1.6
"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;

1.1.7
a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality);

1.1.8
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 of any regulatory, self-regulatory or other authority or organisation;

1.1.9
a provision of law is a reference to that provision as amended or re-enacted from time to time;

1.1.10
a time of day (unless otherwise specified) is a reference to London time; and

1.1.11
the determination of the extent to which a rate is "for a period equal in length" to an Interest Period shall disregard any inconsistency arising from the last day of that Interest Period being determined pursuant to the terms of this Agreement.
1.2
Headings   Section, Clause and Schedule headings are for ease of reference only.
1.3
Defined terms   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.
1.4
Default   A Default (other than an Event of Default) is "continuing" if it has not been remedied or waived and an Event of Default is "continuing" if it has not been waived.
1.5
Currency symbols and definitions   "$", "USD" and "dollars" denote the lawful currency of the United States of America.
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1.6
Third party rights

1.6.1
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.

1.6.2
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.
1.7
Offer letter   This Agreement supersedes the terms and conditions contained in any correspondence relating to the subject matter of this Agreement exchanged between any Finance Party and the Borrowers or their representatives before the date of this Agreement.
1.8
Contractual recognition of bail-in

1.8.1
In this Clause 1.8:
"Article 55 BRRD" means Article 55 of Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
"Bail-In Action" means the exercise of any Write-down and Conversion Powers.
"Bail-In Legislation" means:

(a)
in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 BRRD, the relevant implementing law or regulation as described in the EU Bail-In Legislation Schedule from time to time;

(b)
in relation to the United Kingdom, the UK Bail-In Legislation; and

(c)
in relation to any state other than such an EEA Member Country and the United Kingdom, any analogous law or regulation from time to time which requires contractual recognition of any Write-down and Conversion Powers contained in that law or regulation.
"EEA Member Country" means any member state of the European Union, Iceland, Liechtenstein and Norway.
"EU Bail-In Legislation Schedule" means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
"Resolution Authority" means any body which has authority to exercise any Write-down and Conversion Powers.
"UK Bail-In Legislation" means (to the extent that the United Kingdom is not an EEA Member Country which has implemented, or implements, Article 55 BRRD) Part I of the United Kingdom Banking Act 2009 and any other law
Page 22

or regulation applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (otherwise than through liquidation, administration or other "Write-down and Conversion Powers" means:

(a)
in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation Schedule;

(b)
in relation to the UK Bail-In Legislation, any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

(c)
in relation to any UK Bail-In Legislation:

(i)
any powers under that UK Bail-In Legislation to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or other financial institution or affiliate of a bank, investment firm or other financial institution, to cancel, reduce, modify or change the form of a liability of such a person or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that UK Bail-In Legislation that are related to or ancillary to any of those powers; and

(ii)
any similar or analogous powers under that UK Bail-In Legislation.

1.8.2
Notwithstanding any other term of any Finance Document or any other agreement, arrangement or understanding between the Parties, each Party acknowledges and accepts that any liability of any Party to any other Party under or in connection with the Finance Documents may be subject to Bail-In Action by the relevant Resolution Authority and acknowledges and accepts to be bound by the effect of:
Page 23



(a)
any Bail-In Action in relation to any such liability, including (without limitation):

(i)
a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability;

(ii)
a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, it; and

(iii)
a cancellation of any such liability; and

(b)
a variation of any term of any Finance Document to the extent necessary to give effect to any Bail-In Action in relation to any such liability.
1.9
Sanctions

1.9.1
In this Clause 1.9:
"Restricted Lender" means a Lender that notifies the Agent to the effect that the Sanctions Provisions will only apply for its benefit according to Clause 1.9.2.
"Sanctions Provisions" means the representations and warranties given in Clause 20.1.25 (Sanctions) and the undertakings given in Clause 23.27 (Sanctions).

1.9.2
The Sanctions Provisions shall only be given to a Lender the extent that the making, the receiving of the benefit of and/or, where applicable, the repetition of these representations and warranties, and the compliance with these undertakings do not result in a violation of or conflict with:

(a)
any provision of Council Regulation (EC) 2271/1996 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom;

(b)
if applicable, any provision of Council Regulation (EC) 2271/1996 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom (as it forms part of the domestic law of the United Kingdom by virtue of the 2018 Withdrawal Act) and any provisions of the Sanctions and Anti-Money Laundering Act 2018;

(c)
if applicable, section 7 of the German Foreign Trade Regulation (Außenwirtschaftsverordnung) (in conjunction with section 4 paragraph 1 of No.3 foreign trade law (AWG) (Außenwirtschaftsgesetz)); or

(d)
any similar applicable anti-boycott law or regulation.
Page 24



1.9.3
In connection with any amendment, waiver, determination or direction relating to any part of a Sanctions Provision of which a Restricted Lender does not have the benefit pursuant to this Clause 1.9, the Commitments of that Restricted Lender will be excluded for the purpose of determining whether the consent of the relevant Lenders has been obtained or whether the determination or direction by the relevant Lenders has been made.

1.9.4
Any amendment, waiver, determination or direction relating to any part of this Clause 1.9 will be subject to the consent of each Restricted Lender.
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Section 2
The Loan
2
The Loan
2.1
Amount   Subject to the terms of this Agreement, the Lenders agree to make available to the Borrowers on a joint and several basis in one amount a term loan in an aggregate amount not exceeding the Maximum Loan Amount.
2.2
Finance Parties' rights and obligations

2.2.1
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.

2.2.2
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 is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with Clause 2.2.3.  The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents and, for the avoidance of doubt, any part of the Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Loan or its role under a Finance Document (including any such amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

2.2.3
A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.
3
Purpose
3.1
Purpose   The Borrowers shall apply the Loan for the purpose of refinancing outstanding indebtedness on the Borrowers' Vessels and for general corporate purposes.
3.2
Monitoring   No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
4
Conditions of Utilisation
4.1
Conditions precedent

4.1.1
Initial conditions precedent The Finance Parties will only enter into this Agreement if, on or before the date of this Agreement, the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) in form and substance satisfactory to the Agent.

4.1.2
Utilisation conditions precedent The Lenders will only be obliged to comply with Clause 5.3 (Lenders' participation) in relation to the advance of the Loan if, on or before the Utilisation Date, the Agent has received all of
Page 26

the documents and other evidence listed in Part I of Schedule 2 (Initial Conditions Precedent) in form and substance satisfactory to the Agent.  The Agent shall notify the Borrowers and the Lenders promptly upon being so satisfied.

4.1.3
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 4.1.1, the Lenders authorise (but do not require) the Agent to give that notification.  The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
4.2
Further conditions precedent
The Lenders will only be obliged to advance the Loan if on the date of the Utilisation Request and on the Utilisation Date:

(a)
no Default is continuing or would result from the advance of the Loan; and

(b)
the representations made by each Borrower and each Guarantor under Clause 20 (Representations) are true.

(c)
no event or circumstance has occurred which the Lenders have determined that it has or is reasonably likely to have a Material Adverse Effect;
4.3
Conditions subsequent   The Borrowers undertake to deliver or to cause to be delivered to the Agent within 5 days after the Utilisation Date the additional documents and other evidence listed in Part II of Schedule 2 (Conditions Subsequent).
4.4
No waiver   If the Lenders agree to advance the Loan to the Borrowers or the Finance Parties agree to enter into this Agreement before all of the documents and evidence required by Clause 4.1 (Initial conditions precedent) have been delivered to or to the order of the Agent, the Borrowers undertake to deliver all outstanding documents and evidence to or to the order of the Agent no later than 30 days after the Utilisation Date or the date of this Agreement or such other date specified by the Agent (acting on the instructions of all the Lenders).
The advance of the Loan under this Clause 4.4 shall not be taken as a waiver of the Lenders' right to require production of all the documents and evidence required by Clause 4.1 (Initial conditions precedent).
4.5
Form and content   All documents and evidence delivered to the Agent under this Clause shall:

4.5.1
be in form and substance acceptable to the Agent; and

4.5.2
if required by the Agent, be certified, notarised, legalised or attested in a manner acceptable to the Agent.
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Section 3
Utilisation
5
Advance
5.1
Delivery of a Utilisation Request   The Borrowers may request the Loan to be advanced by delivery to the Agent of a duly completed Utilisation Request not more than ten Business Days before the proposed Utilisation Date and not later than 11.00 am (London time) three Business Days before the proposed Utilisation Date.
5.2
Completion of a Utilisation Request   A Utilisation Request is irrevocable and will not be regarded as having been duly completed unless:

5.2.1
it is signed by an authorised signatory of each Borrower;

5.2.2
the proposed Utilisation Date is a Business Day within the Availability Period; and

5.2.3
the proposed Interest Period complies with Clause 9 (Interest Periods).
5.3
Lenders' participation

5.3.1
Subject to Clauses 2 (The Loan), 3 (Purpose) and 4 (Conditions of Utilisation), each Lender shall make its participation in the Loan available by the Utilisation Date through its Facility Office.

5.3.2
The amount of each Lender's participation in the Loan will be equal to the proportion borne by its Commitment to the Total Commitments.
5.4
Cancellation of Commitment   The Total Commitments shall be cancelled at the end of the Availability Period to the extent that they are unutilised at that time.
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Section 4
Repayment, Prepayment and Cancellation
6
Repayment
6.1
Repayment of Loan   The Borrowers shall repay the Loan to the Agent by twenty (20) consecutive instalments, the first nineteen (19) such instalments each in the amount of three million three hundred ninety thousand dollars ($3,390,000), and the twentieth and final such instalment in the sum of twenty six million five hundred ninety thousand dollars ($26,590,000) (comprising the last instalment of three million three hundred and ninety thousand dollars ($3,390,000) plus a balloon payment in the amount of twenty three million two hundred thousand dollars ($23,200,000) (the "Balloon")), the first instalment falling due on the date which is three Months after the Utilisation Date and subsequent instalments falling due at consecutive intervals of three (3) calendar months thereafter and the twentieth (20th) and final instalment falling due not later than the Termination Date. The Borrowers shall pay to the Agent any outstanding Indebtedness on the Termination Date.
6.2
Reduction of Repayment Instalments   If the aggregate amount advanced to the Borrowers is less than the Maximum Loan Amount, the amount of each Repayment Instalment shall be reduced pro rata to the amount actually advanced.
6.3
Reborrowing   The Borrowers may not reborrow any part of the Loan which is repaid.
7
Illegality, Prepayment and Cancellation
7.1
Illegality   If in any applicable jurisdiction it becomes unlawful (other than by reason of Sanctions) for a Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in the Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so:

7.1.1
that Lender shall promptly notify the Agent upon becoming aware of that event;

7.1.2
upon the Agent notifying the Borrowers, the Commitment of that Lender will be immediately cancelled; and

7.1.3
to the extent that the Lender's participation has not been transferred pursuant to Clause 38.5 (Replacement of Lender), the Borrowers shall repay that Lender's participation in the Loan on the last day of the current Interest Period or, if earlier, the date specified by that Lender in the notice delivered to the Agent and notified by the Agent to the Borrowers (being no earlier than the last day of any applicable grace period permitted by law).
7.2
Voluntary cancellation   The Borrowers may, if they give the Agent not less than 10 Business Days' (or such shorter period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a minimum amount of $500,000) of the undrawn amount of the Loan.  Any cancellation under this Clause 7.2 shall reduce the Commitments of the Lenders rateably.
Page 29


7.3
Voluntary prepayment of Loan   The Borrowers may prepay the whole or any part of the Loan without penalty (but, if in part, being an amount that reduces the Loan by an amount which is an integral multiple of $500,000) subject as follows:

7.3.1
they give the Agent not less than ten Business Days' (or such shorter period as the Majority Lenders may agree) prior notice;

7.3.2
the Loan may only be prepaid after the last day of the Availability Period; and

7.3.3
any prepayment under this Clause 7.3 shall satisfy the obligations under Clause 6.1 (Repayment of Loan) in the manner selected by the Borrower and specified in the notice set out in clause 7.3.1
7.4
Right of cancellation and prepayment in relation to a single Lender

7.4.1
If:

(a)
any sum payable to any Lender by a Borrower or a Guarantor is required to be increased under Clause 12.2.3 (Tax gross-up); or

(b)
any Lender claims indemnification from a Borrower or a Guarantor under Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased costs),
the Borrowers may, while the circumstance giving rise to the requirement for that increase or indemnification continues, give the Agent notice of cancellation of the Commitment(s) of that Lender and their intention to procure the repayment of that Lender's participation in the Loan.

7.4.2
On receipt of a notice referred to in Clause 7.4.1 in relation to a Lender, the Commitment(s) of that Lender shall immediately be reduced to zero.

7.4.3
On the last day of the Interest Period which ends after the Borrowers have given notice under Clause 7.4.1 in relation to a Lender (or, if earlier, the date specified by the Borrowers in that notice), the Borrowers shall repay that Lender's participation in the Loan together with all interest and other amounts accrued under the Finance Documents.
7.5
Mandatory prepayment on sale or Total Loss   If a Borrowers' Vessel is sold by a Borrower or becomes a Total Loss, the Borrowers shall, simultaneously with any such sale or on the earlier of the date falling 180 days after any such Total Loss and the date on which the proceeds of any such Total Loss are realised, prepay the Loan in an amount equal to the Mandatory Prepayment Amount. Any prepayment under this Clause shall satisfy the obligations under Clause 6.1 (Repayment of Loan) on a pro rata basis.
For the purpose of this clause:-
"Mandatory Prepayment Amount" an amount equal to the greater of:

(a)
any additional amount required to ensure that the VTL Coverage (as defined in clause 18.1 (Additional Security)) is fully complied with following such prepayment; and
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(b)
any additional amount required to ensure that the Relevant Percentage immediately following such sale or Total Loss remains at least equal to the Relevant Percentage applicable immediately prior to any such sale or Total Loss.
"Relevant Percentage" means, at any relevant time, the percentage of the aggregate of the Market Value of the Borrowers' Vessels and the value of any additional security (such value to be determined in accordance with Clause 18.1 (VTL Coverage)) against the aggregate of the Loan outstanding and the amount certified by the Swap Provider to be the amount which would be payable by the Borrowers to the Swap Provider under the Master Agreement if an Early Termination Date were to occur at that time.
7.6
Right of cancellation in relation to a Defaulting Lender   If any Lender becomes a Defaulting Lender, the Borrowers may, at any time while the Lender continues to be a Defaulting Lender, give the Agent 30 Business Days' notice of cancellation of the Commitment of that Lender.  On that notice becoming effective, the Commitment of the Defaulting Lender shall immediately be reduced to zero.  The Agent shall as soon as practicable after receipt of that notice notify all the Lenders.
7.7
Mandatory Prepayment - Change of Control
If the Original Guarantor ceases to directly or indirectly control 100% of any Borrower or the Original Guarantor's shares cease to be listed on the NYSE stock exchange or the Borrowers cease to be directly or indirectly wholly owned subsidiaries of the Original Guarantor, then:

(i)
the Borrower shall promptly notify the Agent upon becoming aware of that event; and

(ii)
subject to:

(A)
any Lender so requiring (such a Lender, an "Outgoing Lender"); and

(B)
the Agent giving no less than 60 Business Days' notice to the Borrower,
the Commitment of that Outgoing Lender will be immediately cancelled and, subject to Clause 7.8.2 below, the Borrowers shall repay immediately that Outgoing Lender's participation in each Utilisation.
7.8
Restrictions

7.8.1
Any notice of prepayment or cancellation given under this Clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant prepayment or cancellation is to be made and the amount of that prepayment or cancellation.

7.8.2
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.
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7.8.3
The Borrowers shall not repay, prepay or cancel all or any part of the Loan except at the times and in the manner expressly provided for in this Agreement.

7.8.4
No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.

7.8.5
The Borrowers may not reborrow any part of the Loan which is prepaid.

7.8.6
If the Agent receives a notice under this Clause 7 it shall promptly forward a copy of that notice to the Borrowers or the affected Lender, as appropriate.
7.9
Unwinding of Transactions
On or prior to any repayment or prepayment of the Loan under this Agreement, the Borrowers shall, on a joint and several basis, wholly or partially reverse, offset, unwind or otherwise terminate one or more of the continuing Transactions so that the notional principal amount of the continuing Transactions thereafter remaining does not and will not in the future (taking into account the scheduled amortisation) exceed the amount of the Loan as reducing from time to time thereafter pursuant to this.
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Section 5
Costs of Utilisation
8
Interest
8.1
Calculation of interest   The rate of interest on the Loan for each Interest Period is the percentage rate per annum which is the aggregate of the applicable:

8.1.1
Margin (as the same may be adjusted by the Sustainability Margin Adjustment); and

8.1.2
LIBOR; and

8.1.3
Mandatory Cost, if any
8.2
Sustainability Margin Adjustment
The Margin may be subject to a sustainability margin adjustment subject to the performance under the sustainability KPIs.
The sustainability KPIs and target levels are set out in Schedule 8.

8.2.1
Sustainability Margin Adjustment
Sustainability targets achieved
Margin Adjustment (per annum)
KPI 1 and KPI 2
10 basis points decrease
KPI 1
5 basis points decrease
KPI 2
0 basis points decrease
None of KPI 1 and KPI 2
10 basis points increase

The Margin will never be reduced or increased by more than 10 basis points per annum.

8.2.2
Sustainability Performance Certificate

(a)
The Borrowers shall, for any financial year ending on or after 31 December 2021 supply to the Agent a duly completed Sustainability Performance Certificate in the form set out in Schedule 9 for that financial year, by no later than 120 days after the end of its respective financial year.

(b)
The Borrowers shall, for any financial year ending on or after 31 December 2021 supply to the Agent a "Fleet Carbon Intensity Certificate" from a Recognized Organization relating to each Fleet Vessel (as such term is defined in Schedule 8) and each calendar year setting out the AER of a Vessel for all voyages performed by it over that calendar year using ship fuel oil consumption data required to be collected and reported in accordance with Regulation 22A of Annex VI in respect of that calendar year by no later than 120 days after the end of its respective financial year.
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(c)
Each Sustainability Performance Certificate shall be signed by the Chief Financial Officer, in a form and substance satisfactory to the Agent.

8.2.3
Sustainability Adjustment Mechanics

(a)
The Margin will be adjusted on the date that falls five Business Days after the date on which a Sustainability Performance Certificate has been delivered.

(b)
If the Borrowers fail to deliver the Sustainability Performance Certificate for a financial year, the Margin will be that which would apply as if none of the Sustainability Performance Targets had been achieved. Such increase in the Margin will become effective on the date that falls five Business Days after the date on which the Agent should have received the relevant Sustainability Performance Certificate.

(c)
Failure to deliver a Sustainability Performance Certificate will not constitute a Default.
8.3
Payment of interest   The Borrowers shall pay accrued interest on the Loan on the last day of each Interest Period (and, if the Interest Period is longer than three Months, on the dates falling at intervals of six Months after the first day of the Interest Period).
8.4
Default interest   If a Borrower or a Guarantor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is two per cent per annum higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted the Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Agent (acting reasonably).  Any interest accruing under this Clause 8.4 shall be immediately payable by the Borrower or any Guarantor on demand by the Agent.
Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
8.5
Notification of rates of interest   The Agent shall promptly notify the Borrowers of the determination of a rate of interest under this Agreement.
9
Interest Periods
9.1
Selection of Interest Periods   The Borrowers may select in a written notice to the Agent the duration of an Interest Period for the Loan subject as follows:

9.1.1
each notice is irrevocable and must be delivered to the Agent by the Borrowers not later than 11.00 a.m. on the Quotation Day;
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9.1.2
if the Borrowers fail to give a notice in accordance with Clause 9.1.1, the relevant Interest Period will, subject to Clauses 9.2 (Interest Periods to meet Repayment Dates) and 9.3 (Non-Business Days), be three Months;

9.1.3
subject to this Clause 9, the Borrowers may select an Interest Period of one, three, six or nine Months or any other period agreed between the Borrowers and the Agent (acting on the instructions of all the Lenders);

9.1.4
an Interest Period shall not extend beyond the Termination Date; and

9.1.5
each Interest Period shall start on the Utilisation Date or (if the Loan is already made) on the last day of the preceding Interest Period and end on the date which numerically corresponds to the Utilisation Date or the last day of the preceding Interest Period in the relevant Month.
9.2
Interest Periods to meet Repayment Dates   If an Interest Period will expire after the next Repayment Date, there shall be a separate Interest Period for a part of the Loan equal to the Repayment Instalment due on that next Repayment Date and that separate Interest Period shall expire on that next Repayment Date.
9.3
Non-Business Days   If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
10
Changes to the Calculation of Interest
10.1
Calculation of Reference Bank Rate

10.1.1
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined by reference to a Reference Bank Rate but a Reference Bank does not supply a quotation by 11.00 am on the Quotation Day, the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks.

10.1.2
If at or about noon on the Quotation Day for the relevant Interest Period LIBOR is to be determined by reference to the Reference Bank Rate and none or only one of the Reference Banks supplies a rate to the Agent to determine LIBOR for dollars, Clause 10.3 (Cost of funds) shall apply to the Loan for the relevant Interest Period.
10.2
Market disruption   If before close of business in London on the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders (whose participations in the Loan exceed 30% of the Loan) that the cost to it of funding its participation in the Loan from whatever source it may reasonably select would be in excess of LIBOR then Clause 10.3 (Cost of funds) shall apply to the Loan for the relevant Interest Period.
10.3
Cost of funds

10.3.1
If this Clause 10.3 applies for any Interest Period, then the rate of interest on each Lender's share of the Loan for that Interest Period shall be the percentage rate per annum which is the sum of:
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(a)
the Margin; and

(b)
the rate notified to the Agent by that Lender as soon as practicable, and in any event by close of business on the date falling three Business Days after the Quotation Day (or, if earlier, on the date falling three Business Days prior to the date on which interest is due to be paid in respect of that Interest Period), to be that which expresses as a percentage rate per annum the cost to that Lender of funding its participation in the Loan from whatever source it may reasonably select.

10.3.2
If this Clause 10.3 applies and the Agent or the Borrowers so require, the Agent and the Borrowers shall enter into negotiations (for a period of not more than thirty days) with a view to agreeing a substitute basis for determining the rate of interest.

10.3.3
Any alternative basis agreed pursuant to Clause 10.3.2 shall, with the prior consent of all the Lenders and the Borrowers, be binding on all Parties.

10.3.4
If an alternative basis is not agreed pursuant to Clause 10.3.2, the rate of interest shall continue to be determined in accordance with Clause 10.3.1.
10.4
Break Costs   The Borrowers shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of the Loan or Unpaid Sum being paid by the Borrowers on a day other than the last day of an Interest Period for the Loan or Unpaid Sum.
Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.
11
Fees
11.1
Commitment Fee   The Borrowers shall pay to the Agent (for the account of the Lenders in proportion to their Commitments) a fee computed at the rate of 0.70 per cent per annum on the undrawn and uncancelled amount of the Loan from the signing of this Agreement and until the Utilisation Date in respect of the committed and undrawn part of the Loan.
The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the Availability Period, on the last day of the Availability Period, on the Utilisation Date and (on the cancelled amount of the relevant Lender's Commitment) at the time the cancellation is effective.
11.2
Arrangement fee   The Borrowers shall pay to the Agent an arrangement fee.
11.3
Agency fee   If any bank, financial institution, trust, fund or other entity other than the Original Lenders becomes a Party to this Agreement as a Lender, then the Borrowers shall pay to the Agent (for its own account) an agency fee payable in the amount and at the times to be agreed by the Agent and the Borrowers.
11.4
Sustainability Coordination Fee   USD25,000 payable to the Facility Agent on signing of this Agreement.
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Section 6
Additional Payment Obligations
12
Tax Gross Up and Indemnities
12.1
Definitions  In this Agreement:
"Borrower DTTP Filing" means an HM Revenue & Customs' Form DTTP2 duly completed and filed by the relevant Borrower, which:

(a)
where it relates to a Treaty Lender that is an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated opposite that Lender's name in Schedule 1 (The Parties) and is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

(b)
where it relates to a Treaty Lender that is not an Original Lender, contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the documentation which it executes on becoming a Party as a Lender and is filed with HM Revenue & Customs within 30 days of the relevant Transfer Date.
"Protected Party" means a Finance Party which is or will be subject to any liability or required to make any payment for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.
"Qualifying Lender" means a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document and is:

(a)
a Lender which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Finance Document and is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the CTA; or in respect of an advance made under a Finance Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made and within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance; or

(b)
a Lender which is:

(i)
a company resident in the United Kingdom for United Kingdom tax purposes;

(ii)
a partnership each member of which is:

(A)
a company so resident in the United Kingdom; or

(B)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest
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payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(iii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

(c)
a Treaty Lender.
"Tax Confirmation" means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)
a company resident in the United Kingdom for United Kingdom tax purposes;

(b)
a partnership each member of which is:

(i)
a company so resident in the United Kingdom; or

(ii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.
"Tax Payment" means either the increase in a payment made by an Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a payment under Clause 12.3 (Tax indemnity).
"Treaty Lender" means a Lender which:

(a)
is treated as a resident of a Treaty State for the purposes of the Treaty;

(b)
does not carry on a business in the United Kingdom through a permanent establishment with which that Lender's participation in the Loan is effectively connected.
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"Treaty State" means a jurisdiction having a double taxation agreement (a "Treaty") with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.
"UK Non-Bank Lender" means a Lender which is not an Original Lender and which gives a Tax Confirmation in the documentation which it executes on becoming a Party as a Lender.
Unless a contrary indication appears, in this Clause 12 a reference to "determines" or "determined" means a determination made in the absolute discretion of the person making the determination.
12.2
Tax gross-up

12.2.1
Each Borrower and each Guarantor shall (and shall procure that each other Obligor will) make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

12.2.2
The Borrowers 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 Borrowers and that Obligor.

12.2.3
(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.

12.2.4
A payment shall not be increased under Clause 12.2.3 by reason of a Tax Deduction on account of Tax imposed by the United Kingdom, if on the date on which the payment falls due:

(a)
the payment could have been made to the relevant Lender without a Tax Deduction if the Lender had been a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty or any published practice or published concession of any relevant taxing authority; or

(b)
the relevant Lender is a Qualifying Lender solely by virtue of (b) of the definition of Qualifying Lender and:

(i)
an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a "Direction") under section 931 of the ITA which relates to the payment and that Lender has received from the Obligor making the payment a certified copy of that Direction; and
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(ii)
the payment could have been made to the Lender without any Tax Deduction if that Direction had not been made; or

(c)
the relevant Lender is a Qualifying Lender solely by virtue of (b) of the definition of Qualifying Lender and:

(i)
the relevant Lender has not given a Tax Confirmation to the Borrowers; and

(ii)
the payment could have been made to the Lender without any Tax Deduction if the Lender had given a Tax Confirmation to the Borrowers, on the basis that the Tax Confirmation would have enabled the Borrowers to have formed a reasonable belief that the payment was an "excepted payment" for the purpose of section 930 of the ITA; or

(d)
the relevant Lender is a Treaty Lender and the Obligor making the payment is able to demonstrate that the payment could have been made to that Lender without the Tax Deduction had that Lender complied with its obligations under Clause 12.2.7 or Clause 12.2.8 (as applicable).

12.2.5
If an Obligor is required to make a Tax Deduction, the Borrowers and each Guarantor shall (and shall procure that such other Obligor will) 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.

12.2.6
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Borrower or Guarantor making that Tax Deduction shall (and shall procure that such other Obligor will) deliver to the Agent for the Finance Party entitled to the payment a statement under section 975 of the ITA or other evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

12.2.7
(a) Subject to (b), a Treaty Lender and each Obligor which makes a payment to which that Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for that Obligor to obtain authorisation to make that payment without a Tax Deduction.

(b)
(i) A Treaty Lender which is an Original Lender and that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name in Schedule 1 (The Parties); and

(ii)
a Treaty Lender which is not an Original Lender and that holds a passport under the HMRC DT Treaty Passport
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scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence in the documentation which it executes on becoming a Party as a Lender,
and, having done so, that Lender shall be under no obligation pursuant to (a).

12.2.8
If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Clause 12.2.7(b) and:

(a)
a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

(b)
a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but:

(i)
that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or

(ii)
HM Revenue & Customs has not given that Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing,
and in each case, that Borrower has notified that Lender in writing, that Lender and that Borrower shall co-operate in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.

12.2.9
If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Clause 12.2.7(b), no Borrower or Guarantor shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender's Commitment(s) or its participation in the Loan unless the Lender otherwise agrees.

12.2.10
A Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Agent for delivery to the relevant Lender.

12.2.11
A UK Non-Bank Lender shall promptly notify the Borrowers and the Agent if there is any change in the position from that set out in the Tax Confirmation.
12.3
Tax indemnity

12.3.1
Each Borrower and each Guarantor shall (within three 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.
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12.3.2
Clause 12.3.1 shall not apply:

(a)
with respect to any Tax assessed on a Finance Party:

(i)
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

(ii)
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

(b)
to the extent a loss, liability or cost:

(i)
is compensated for by an increased payment under Clause 12.2 (Tax gross-up);

(ii)
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 Clause 12.2.4 (Tax gross-up) applied; or

(iii)
relates to a FATCA Deduction required to be made by a Party.

12.3.3
A Protected Party making, or intending to make a claim under Clause 12.3.1 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 Borrowers.

12.3.4
A Protected Party shall, on receiving a payment from a Borrower or a Guarantor under this Clause 12.3, notify the Agent.
12.4
Tax Credit   If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

12.4.1
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

12.4.2
that Finance Party has obtained and utilised that Tax Credit,
that Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been made by the Obligor.
12.5
Lender status confirmation   Each Lender which is not an Original Lender shall indicate, in the documentation which it executes on becoming a Party as a Lender, and for the benefit of the Agent and without liability to any Obligor, which of the following categories it falls in:
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12.5.1
not a Qualifying Lender;

12.5.2
a Qualifying Lender (other than a Treaty Lender); or

12.5.3
a Treaty Lender.
If such a Lender fails to indicate its status in accordance with this Clause 12.5 then that Lender shall be treated for the purposes of this Agreement (including by each Obligor) as if it is not a Qualifying Lender until such time as it notifies the Agent which category applies (and the Agent, upon receipt of such notification, shall inform the Borrowers).  For the avoidance of doubt, the documentation which a Lender executes on becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply with this Clause 12.5.
12.6
Stamp taxes   The Borrowers shall pay and, within three Business Days of demand, indemnify each Finance Party against any cost, loss or liability that Finance Party incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Finance Document.
12.7
VAT

12.7.1
All amounts expressed to be payable under a Finance Document by any Party or any Obligor to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to Clause 12.7.2, if  VAT is or becomes chargeable on any supply made by any Finance Party to any Party or any Obligor under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party or Obligor must pay to such 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 the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to the Borrowers).

12.7.2
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 "Relevant Party") is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

(a)
(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Recipient must (where this Clause 12.7.2(a) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and
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(b)
(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

12.7.3
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.

12.7.4
Any reference in this Clause 12.7 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 term "representative member" to have the same meaning as in the Value Added Tax Act 1994) or any equivalent person in any jurisdiction other than the United Kingdom.

12.7.5
In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.
12.8
FATCA information

12.8.1
Subject to Clause 12.8.3, each Party shall, within ten Business Days of a reasonable request by another Party:

(a)
confirm to that other Party whether it is:

(i)
a FATCA Exempt Party; or

(ii)
not a FATCA Exempt Party;

(b)
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

(c)
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.
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12.8.2
If a Party confirms to another Party pursuant to Clause 12.8.1(a)(i) 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.

12.8.3
Clause 12.8.1 shall not oblige any Finance Party to do anything, and Clause 12.8.1(c) shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

(a)
any law or regulation;

(b)
any fiduciary duty; or

(c)
any duty of confidentiality.

12.8.4
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 Clause 12.8.1(a) or 12.8.1(b) (including, for the avoidance of doubt, where Clause 12.8.3 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.

12.8.5
If a 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:

(a)
where a Borrower is a US Tax Obligor and the relevant Lender is an Original Lender, the date of this Agreement;

(b)
where a Borrower is a US Tax Obligor on a date on which any other Lender becomes a Party as a Lender, that date; or

(c)
where a Borrower is not a US Tax Obligor, the date of a request from the Agent,
supply to the Agent:

(i)
a withholding certificate on Form W-8 or Form W-9 or any other relevant form; or

(ii)
any withholding statement or other document, authorisation or waiver as the Agent may require to certify or establish the status of such Lender under FATCA or that other law or regulation.

12.8.6
The Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to Clause 12.8.5 to the Borrowers.

12.8.7
If any withholding certificate, withholding statement, document, authorisation or waiver provided to the Agent by a Lender pursuant to Clause 12.8.5 is or becomes materially inaccurate or incomplete, that Lender shall promptly update it and provide such updated withholding
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certificate, withholding statement, document, authorisation or waiver to the Agent unless it is unlawful for the Lender to do so (in which case the Lender shall promptly notify the Agent).  The Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the Borrowers.

12.8.8
The Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Lender pursuant to Clause 12.8.5 or 12.8.7 without further verification.  The Agent shall not be liable for any action taken by it under or in connection with Clause 12.8.5, 12.8.6 or 12.8.7.
12.9
FATCA Deduction

12.9.1
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.

12.9.2
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 the Borrowers and the Agent and the Agent shall notify the other Finance Parties.
13
Increased Costs
13.1
Increased costs   Subject to Clause 13.3 (Exceptions) the Borrowers shall, within three Business Days of a demand by the Agent, pay to the Agent for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement or (iii) the implementation or application of or compliance with Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a government, regulator, that Finance Party or any of that Finance Party's Affiliates).
In this Agreement:

(a)
"Basel III" means:

(i)
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;
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(ii)
the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

(iii)
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".

(b)
"CRD IV" means EU CRD IV and UK CRD IV.

(c)
"EU CRD IV" means:

(i)
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012; and

(ii)
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC.

(d)
"UK CRD IV" means:

(i)
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 as it forms part of domestic law of the United Kingdom by virtue of the 2018 Withdrawal Act;

(ii)
the law of the United Kingdom or any part of it, which immediately before IP Completion Day (as defined in the 2020 Withdrawal Act) implemented Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures; and

(iii)
direct EU legislation (as defined in the 2018 Withdrawal Act), which immediately before IP Completion Day (as defined in the 2020 Withdrawal Act) implemented EU CRD IV as it forms part of domestic law of the United Kingdom by virtue of the 2018 Withdrawal Act.

(e)
"Increased Costs" means:

(i)
a reduction in the rate of return from the Loan or on a Finance Party's (or its Affiliate's) overall capital;
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(ii)
an additional or increased cost; or

(iii)
a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that it is attributable to that Finance Party having entered into any Finance Document or funding or performing its obligations under any Finance Document.
13.2
Increased cost claims

13.2.1
A Finance Party intending to make a claim pursuant to Clause 13.1 (Increased costs) shall notify the Agent of the event giving rise to the claim, following which the Agent shall promptly notify the Borrowers.

13.2.2
Each Finance Party shall, as soon as practicable after a demand by the Agent, provide a certificate confirming the amount of its Increased Costs.
13.3
Exceptions   Clause 13.1 (Increased costs) does not apply to the extent any Increased Cost is:

13.3.1
attributable to a Tax Deduction required by law to be made by a Borrower or a Guarantor;

13.3.2
attributable to a FATCA Deduction required to be made by a Party;

13.3.3
compensated for by Clause 12.3 (Tax indemnity) (or would have been compensated for under Clause 12.3 but was not so compensated solely because any of the exclusions in Clause 12.3 applied);

13.3.4
compensated for by the payment of the Mandatory Cost;

13.3.5
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation.

13.3.6
attributable to the implementation or application of or compliance with the "International Convergence of Capital Measurement and Capital Standards, a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement (but excluding any amendment arising out of Basel III) ("Basel II") or any other law or regulation which implements Basel II (whether such implementation, application or compliance is by a government, regulator, the Lender or any of its Affiliates).
In this Clause 13.3, a reference to a "Tax Deduction" has the same meaning given to the term in Clause 12.1 (Definitions).
14
Other Indemnities
14.1
Currency indemnity   If any sum due from a Borrower or a Guarantor 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:
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14.1.1
making or filing a claim or proof against that Borrower or that Guarantor (as the case may be); or

14.1.2
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
that Borrower or that Guarantor (as the case may be) as an independent obligation, within three Business Days of demand, indemnify each Secured Party to whom that Sum is due against any cost, loss or liability arising out of or as a result of the conversion including any discrepancy between (a) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (b) the rate or rates of exchange available to that Secured Party at the time of its receipt of that Sum.
Each Borrower and each Guarantor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
14.2
Other indemnities

14.2.1
The Borrowers shall, within three Business Days of demand, indemnify each Secured Party against any cost, loss or liability incurred by that Secured Party as a result of:

(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 31 (Sharing among the Finance Parties);

(c)
funding, or making arrangements to fund, its participation in the Loan requested by the Borrowers 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 Borrowers.

14.2.2
The Borrowers shall promptly indemnify each Finance Party, each Affiliate of a Finance Party and each officer or employee of a Finance Party or its Affiliate (each such person for the purposes of this Clause 14.2 an "Indemnified Person") against any cost, loss or liability incurred by that Indemnified Person pursuant to or in connection with any litigation, arbitration or administrative proceedings or regulatory enquiry, in connection with or arising out of the entry into and the transactions contemplated by the Finance Documents, having the benefit of any Encumbrance constituted by the Finance Documents or which relates to the condition or operation of, or any incident occurring in relation to, a Vessel, unless such cost, loss or liability is caused by the gross negligence or wilful misconduct of that Indemnified Person.  Any Affiliate or any officer or
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employee of a Finance Party or its Affiliate may rely on this Clause 14.2 subject to Clause 1.6 (Third party rights) and the provisions of the Third Parties Act.

14.2.3
Subject to any limitations set out in Clause 14.2.2, the indemnity in that Clause shall cover any cost, loss or liability incurred by each Indemnified Person in any jurisdiction:

(a)
arising or asserted under or in connection with any law relating to safety at sea, the ISM Code, any Environmental Law or any Sanctions; or

(b)
in connection with any Environmental Claim.
14.3
Indemnity to the Agent   The Borrowers shall promptly indemnify the Agent against:

14.3.1
any cost, loss or liability incurred by the Agent (acting reasonably) as a result of:

(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; or

(c)
instructing lawyers, accountants, tax advisers, surveyors or other professional advisers or experts as permitted under this Agreement; and

14.3.2
any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc.) notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent under the Finance Documents.
14.4
Indemnity to the Security Agent   Each Borrower and each Guarantor jointly and severally shall promptly indemnify the Security Agent and every Receiver and Delegate against any cost, loss or liability incurred by any of them as a result of:

14.4.1
any failure by the Borrowers to comply with their obligations under Clause 16 (Costs and Expenses);

14.4.2
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised;

14.4.3
the taking, holding, protection or enforcement of the Security Documents;

14.4.4
the exercise of any of the rights, powers, discretions, authorities and remedies vested in the Security Agent and each Receiver and Delegate by the Finance Documents or by law;
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14.4.5
any default by any Obligor in the performance of any of the obligations expressed to be assumed by it in the Finance Documents; or

14.4.6
acting as Security Agent, Receiver or Delegate under the Finance Documents or which otherwise relates to any of the Charged Property (otherwise, in each case, than by reason of the relevant Security Agent's, Receiver's or Delegate's gross negligence or wilful misconduct).
14.5
Indemnity survival   The indemnities contained in this Agreement shall survive repayment of the Loan.
15
Mitigation by the Lenders
15.1
Mitigation   Each Finance Party shall, in consultation with the Borrowers, take all reasonable steps to mitigate any circumstances which arise and which would result in the Loan ceasing to be available or any amount becoming payable under or pursuant to any of Clause 7.1 (Illegality), Clause 12 (Tax Gross Up and Indemnities) or Clause 13 (Increased Costs) including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.  The above does not in any way limit the obligations of any Obligor under the Finance Documents.
15.2
Limitation of liability   The Borrowers shall promptly indemnify each Finance Party for all costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (Mitigation).  A Finance Party is not obliged to take any steps under Clause 15.1 if, in its opinion (acting reasonably), to do so might be prejudicial to it.
16
Costs and Expenses
16.1
Transaction expenses   The Borrowers shall promptly on demand pay the Agent, the Security Agent the amount of all costs and expenses (including legal fees) reasonably incurred by any of them (and, in the case of the Security Agent, by any Receiver or Delegate) in connection with:

16.1.1
the negotiation, preparation, printing, execution, syndication and perfection of this Agreement and any other documents referred to in this Agreement;

16.1.2
the negotiation, preparation, printing, execution and perfection of any other Finance Documents executed after the date of this Agreement;

16.1.3
any other document which may at any time be required by a Finance Party to give effect to any Finance Document or which a Finance Party is entitled to call for or obtain under any Finance Document; and

16.1.4
any discharge, release or reassignment of any of the Security Documents.
16.2
Amendment costs   If (a) an Obligor requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 32.10 (Change of currency), the Borrowers shall, within three Business Days of demand, reimburse each of the Agent and the Security Agent for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agent and the Security Agent (and, in the case of
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the Security Agent, by any Receiver or Delegate) in responding to, evaluating, negotiating or complying with that request or requirement.
16.3
Agent and Security Agent's management time and additional remuneration   Any amount payable to the Agent under Clause 14.3 (Indemnity to the Agent) or to the Security Agent under Clause 14.4 (Indemnity to the Security Agent) or to either of them under this Clause 16 or Clause 27.10 (Lenders' indemnity to the Agent) shall include the cost of utilising the management time or other resources of the Agent or the Security Agent (as the case may be) and will be calculated on the basis of such reasonable daily or hourly rates as the Agent or the Security Agent may notify to the Borrowers and the Lenders, and is in addition to any other fee paid or payable to the Agent or the Security Agent.
16.4
Enforcement and preservation costs   The Borrowers shall, within three Business Days of demand, pay to each Finance Party and each other Secured Party the amount of all costs and expenses (including legal fees) incurred by that Finance Party in connection with the enforcement of, or the preservation of any rights under, any Finance Document and any proceedings instituted by or against the Security Agent as a consequence of taking or holding the Security Documents or enforcing those rights including (without limitation) any losses, costs and expenses which that Finance Party or other Secured Party may from time to time sustain, incur or become liable for by reason of that Finance Party or other Secured Party being mortgagee of a Vessel and/or a lender to a Borrower, or by reason of that Finance Party or other Secured Party being deemed by any court or authority to be an operator or controller, or in any way concerned in the operation or control, of a Vessel.
16.5
Other costs   The Borrowers shall, within three Business Days of demand, pay to each Finance Party and each other Secured Party the amount of all sums which that Finance Party or other Secured Party may pay or become actually or contingently liable for on account of a Borrower in connection with a Vessel (whether alone or jointly or jointly and severally with any other person) including (without limitation) all sums which that Finance Party or other Secured Party may pay or guarantees which it may give in respect of the Insurances, any expenses incurred by that Finance Party or other Secured Party in connection with the maintenance or repair of a Vessel or in discharging any lien, bond or other claim relating in any way to a Vessel, and any sums which that Finance Party or other Secured Party may pay or guarantees which it may give to procure the release of a Vessel from arrest or detention.
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Section 7
Accounts and Application of Earnings
17
Accounts
17.1
Accounts

17.1.1
The Borrowers shall maintain the Earnings Accounts with the Account Holder for the duration of the Facility Period free of Encumbrances and rights of set off other than those created by or under the Finance Documents.

17.1.2
No Borrower shall open any bank account with any bank or financial institution other than the Account Holder.
17.2
Earnings   The Borrowers shall procure that all Earnings, any and all proceeds of a sale of a Borrowers' Vessel and any Requisition Compensation are credited to the Earnings Account.
17.3
Application of Earnings Accounts   The Borrowers shall transfer or cause to be transferred from the Earnings Accounts to the Agent for the account of the Lenders:

17.3.1
on each Repayment Date, the amount of the Repayment Instalment then due; and

17.3.2
on each Interest Payment Date, the amount of interest then due,
and the Borrowers irrevocably authorise the Security Agent to instruct the Account Holder to make those transfers if the Borrowers fail to do so.
17.4
Borrowers' obligations not affected   If for any reason the amount standing to the credit of the Earnings Account is insufficient to pay any Repayment Instalment or to make any payment of interest when due, the Borrowers' obligation to pay that Repayment Instalment or to make that payment of interest shall not be affected.
17.5
Release of surplus   Any amount remaining to the credit of the Earnings Account following the making of any transfer required by Clause 17.3 (Application of Earnings Accounts) shall (unless an Event of Default is continuing) be released to or to the order of the Borrowers.
17.6
Restriction on withdrawal   During the Facility Period no sum may be withdrawn from the Earnings Accounts (except in accordance with this Clause 17) without the prior written consent of the Security Agent.  The Earnings Accounts shall not be overdrawn.
17.7
Relocation of Accounts   On and at any time after the occurrence of a Default which is continuing, the Security Agent may without the consent of the Borrowers instruct the Account Holder to relocate either or any of the Earnings Accounts to any other branch of the Account Holder, without prejudice to the continued application of this Clause 17 and the rights of the Finance Parties under the Finance Documents.
17.8
Access to information   The Security Agent (and its nominees) may from time to time during the Facility Period review the records held by the Account Holder (whether in written or electronic form) in relation to the Earnings Accounts, and the Borrowers irrevocably waive any right of confidentiality which may exist in relation to those records.
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17.9
Statements   Without prejudice to the rights of the Security Agent under Clause 17.8 (Access to information), the Borrowers shall procure that the Account Holder provides to the Security Agent, no less frequently than each calendar month during the Facility Period, statements of account (in written or electronic form) showing all entries made to the credit and debit of each of the Earnings Accounts during the immediately preceding calendar month.
17.10
Application after acceleration   From and after the giving of notice to the Borrowers by the Agent under Clause 24.2.1 (Acceleration), the Borrowers shall procure that all sums from time to time standing to the credit of any of the Earnings Accounts are immediately transferred to the Security Agent or any Receiver or Delegate for application in accordance with Clause 29 (Application of Proceeds) and the Borrowers irrevocably authorise the Security Agent to instruct the Account Holder to make those transfers.
18
Additional Security
18.1
VTL Coverage

18.1.1
If at any time the aggregate of the agreegate Market Value of the Borrowers' Vessels and the value of any additional security (such value to be the face amount of the deposit (in the case of cash), determined conclusively by appropriate advisers appointed by the Agent (in the case of other charged assets), and determined by the Agent (in all other cases)) for the time being provided to the Security Agent under this Clause 18.1 is less than 125% of the aggregate of the amount of the Loan then outstanding and the amount certified by the Swap Provider to be the amount which would be payable by the Borrowers to the Swap Provider under the Master Agreement if an Early Termination Date were to occur at that time (the "VTL Coverage"), the Borrowers shall, within 30 days of the Agent's request, at the Borrowers' option:

(a)
pay to the Security Agent or to its nominee a cash deposit in the amount of the shortfall to be secured in favour of the Security Agent as additional security for the payment of the Indebtedness; or

(b)
give to the Security Agent other additional security in amount and form acceptable to the Security Agent for a value determined in accordance with the first part of this Clause 18.1.1; or

(c)
prepay the Loan in the amount of the shortfall.

18.1.2
Clauses 6.3 (Reborrowing), 7.3 (Voluntary prepayment of Loan) and 7.8 (Restrictions) shall apply, mutatis mutandis, to any prepayment made under this Clause 18.1.

18.1.3
If, at any time after the Borrowers have provided additional security in accordance with the Agent's request under this Clause 18.1, the Agent shall determine when testing compliance with the VTL Coverage that all or any part of that additional security may be released without resulting in a shortfall in the VTL Coverage, then, provided that no Default is continuing,
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the Security Agent shall effect a release of all or any part of that additional security in accordance with the Agent's instructions, but this shall be without prejudice to the Agent's right to make a further request under this Clause 18.1 should the value of the remaining security subsequently merit it.
18.2
Provision of valuations

18.2.1
The Borrowers shall provide the Agent with two set of valuations of Approved Shipbrokers each in evidence of the Market Value of the Borrowers' Vessels for the purpose of Clause 18.1 (VTL Coverage) twice per calendar year throughout the Facility Period.

18.2.2
Additionally, the Agent shall at the request of the Lenders be entitled to obtain a valuation in evidence of the Market Value of a Borrowers’ Vessel for the purpose of Clause 18.1 (VTL Coverage) at any time and such valuation obtained shall be at the expense of the Lenders except where the Borrowers are by means of such valuation shown to be in breach of that Clause.

18.2.3
The Agent may at any time after a Default has occurred and is continuing or following the occurrence of an event described in Clause 7.5 (Mandatory prepayment of sale or Total Loss) or during the continuation of an Event of Default obtain two sets of valuations in evidence of the Market Value of a Borrowers’ Vessel or any other vessel over which additional security has been created in accordance with Clause 18.1 (VTL Coverage).

18.2.4
All valuations referred to in this Clause 18.2, except where specified in Clause 18.2.2, and all valuations to be obtained pursuant to Clause 4 (Conditions of Utilisation) shall be obtained at the cost and expense of the Borrowers and the Borrowers shall within three Business Days of demand by the Agent pay to the Agent the amount of all such costs and expenses.
19
Guarantee and Indemnity
19.1
Guarantee and indemnity   Each Guarantor irrevocably and unconditionally jointly and severally:

19.1.1
guarantees to each Finance Party punctual performance by each other Obligor of all that Obligor's obligations under the Finance Documents;

19.1.2
undertakes with each Finance Party that whenever another Obligor 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 was the principal obligor; and

19.1.3
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 an Obligor 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
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this Clause 18.2 if the amount claimed had been recoverable on the basis of a guarantee.
19.2
Continuing Guarantee   This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.
19.3
Reinstatement   If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 18.2 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
19.4
Waiver of defences   The obligations of each Guarantor under this Clause 18.2 will not be affected by an act, omission, matter or thing which, but for this Clause 19.4, would reduce, release or prejudice any of its obligations under this Clause 18.2 (without limitation and whether or not known to it or any Finance Party) including:

19.4.1
any time, waiver or consent granted to, or composition with, any Obligor or other person;

19.4.2
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any Obligor or any other member of the Group;

19.4.3
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;

19.4.4
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;

19.4.5
any amendment, novation, supplement, extension restatement (however fundamental and whether or not more onerous) or replacement of a Finance Document or any other document or security including, without limitation, any change in the purpose of, any extension of or increase in any facility or the addition of any new facility under any Finance Document or other document or security;

19.4.6
any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

19.4.7
any insolvency or similar proceedings.
19.5
Guarantor intent   Without prejudice to the generality of Clause 19.4 (Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or
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amount made available under any of the Finance Documents for the purposes of or in connection with any of the following:  business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.
19.6
Immediate recourse   Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 18.2.  This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
19.7
Appropriations   Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

19.7.1
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

19.7.2
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 18.2.
19.8
Deferral of Guarantors' rights   Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full and unless the Agent otherwise directs, no Guarantor shall exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 18.2:

19.8.1
to be indemnified by an Obligor;

19.8.2
to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;

19.8.3
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;

19.8.4
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 19.1 (Guarantee and indemnity);

19.8.5
to exercise any right of set-off against any Obligor; and/or

19.8.6
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
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If a Guarantor receives any benefit, payment or distribution in relation to such rights it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full on trust for the Finance Parties and shall promptly pay or transfer the same to the Agent or as the Agent may direct for application in accordance with Clause 32 (Payment mechanics).
19.9
Additional security   This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.
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Section 8
Representations, Undertakings and Events of Default
20
Representations
20.1
Representations   Each Borrower and each Guarantor makes the representations and warranties set out in this Clause 20 to each Finance Party.

20.1.1
Status   Each of the Obligors:

(a)
is a limited liability corporation, duly incorporated and validly existing under the law of its Original Jurisdiction; and

(b)
has the power to own its assets and carry on its business as it is being conducted.

20.1.2
Binding obligations   Subject to the Legal Reservations:

(a)
the obligations expressed to be assumed by each of the Obligors in each of the Relevant Documents to which it is a party are legal, valid, binding and enforceable obligations; and

(b)
(without limiting the generality of Clause 20.1.2(a)) each Security Document to which it is a party creates the security interests which that Security Document purports to create and those security interests are valid and effective.

20.1.3
Non-conflict with other obligations   The entry into and performance by each of the Obligors of, and the transactions contemplated by, the Relevant Documents do not and will not conflict with:

(a)
any law or regulation applicable to such Obligor;

(b)
the constitutional documents of such Obligor; or

(c)
any agreement or instrument binding upon such Obligor or any of such Obligor's assets or constitute a default or termination event (however described) under any such agreement or instrument.

20.1.4
Power and authority

(a)
Each of the Obligors has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, the Relevant Documents to which it is or will be a party and the transactions contemplated by those Relevant Documents.

(b)
No limit on the powers of any Obligor will be exceeded as a result of the borrowing, grant of security or giving of guarantees or indemnities contemplated by the Relevant Documents to which it is a party.

20.1.5
Validity and admissibility in evidence   All Authorisations required or desirable:
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(a)
to enable each of the Obligors lawfully to enter into, exercise its rights and comply with its obligations in the Relevant Documents to which it is a party or to enable each Finance Party to enforce and exercise all its rights under the Relevant Documents; and

(b)
to make the Relevant Documents to which any Obligor is a party admissible in evidence in its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect, with the exception only of the registrations referred to in Part II of Schedule 2 (Conditions Subsequent).

20.1.6
Governing law and enforcement

(a)
The choice of governing law of any Finance Document will be recognised and enforced in the Relevant Jurisdictions of each relevant Obligor.

(b)
Any judgment obtained in relation to any Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in the Relevant Jurisdictions of each relevant Obligor.

20.1.7
Insolvency   No corporate action, legal proceeding or other procedure or step described in Clause 24.1.7 (Insolvency proceedings) or creditors' process described in Clause 24.1.8 (Creditors' process) has been taken or, to the knowledge of any Borrower or any Guarantor, threatened in relation to an Obligor; and none of the circumstances described in Clause 24.1.6 (Insolvency) applies to an Obligor.

20.1.8
No filing or stamp taxes   Under the laws of the Relevant Jurisdictions of each relevant Obligor it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in any of those jurisdictions or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents except registration of each Mortgage at the Ships Registry where title to the relevant Vessel is registered in the ownership of the relevant Borrower and payment of associated fees, which registrations, filings, taxes and fees will be made and paid promptly after the date of the relevant Finance Document.

20.1.9
Deduction of Tax   None of the Obligors is required under the law of its jurisdiction of incorporation to make any deduction for or on account of Tax from any payment it may make under any Finance Document to a Lender which is:

(a)
a Qualifying Lender falling within (a) of the definition of Qualifying Lender; or, except where a Direction has been given under section 931 of the ITA in relation to the payment concerned, a Qualifying Lender falling within (b) of the definition of Qualifying Lender; or
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(b)
a Treaty Lender and the payment is one specified in a direction given by the Commissioners of Revenue & Customs under Regulation 2 of the Double Taxation Relief (Taxes on Income) (General) Regulations 1970 (SI 1970/488).

20.1.10
No default

(a)
No Event of Default and, on the date of this Agreement and each Utilisation Date, no Default is continuing or is reasonably likely to result from the advance of the Loan or the entry into, the performance of, or any transaction contemplated by, any of the Relevant Documents.

(b)
No other event or circumstance is outstanding which constitutes (or, with the expiry of a grace period, the giving of notice, the making of any determination or any combination of any of the foregoing, would constitute) a default or termination event (however described) under any other agreement or instrument which is binding on any of the Obligors or to which its assets are subject which has or is reasonably likely to have a Material Adverse Effect.

20.1.11
No misleading information   Save as disclosed in writing to the Agent prior to the date of this Agreement:

(a)
all material information provided to a Finance Party by or on behalf of any of the Obligors on or before the date of this Agreement and not superseded before that date is accurate and not misleading in any material respect and all projections provided to any Finance Party on or before the date of this Agreement have been prepared in good faith on the basis of assumptions which were reasonable at the time at which they were prepared and supplied; and

(b)
all other written information provided by any of the Obligors (including its advisers) to a Finance Party was true, complete and accurate in all material respects as at the date it was provided and is not misleading in any respect.

20.1.12
Financial statements

(a)
The Original Financial Statements were prepared in accordance with GAAP consistently applied.

(b)
The unaudited Original Financial Statements fairly represent the Group's financial condition and results of operations for the relevant semester.

(c)
The audited Original Financial Statements fairly represent the Group's financial condition and results of operations during the relevant financial year.
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(d)
There has been no material adverse change in the assets, business or consolidated financial condition of the Group since the date of the Original Financial Statements.

(e)
The Group's most recent financial statements delivered pursuant to Clause 21.1 (Financial statements):

(i)
have been prepared in accordance with GAAP as applied to the Original Financial Statements; and

(ii)
fairly represent its consolidated financial condition as at the end of, and its consolidated results of operations for, the period to which they relate.

(f)
Since the date of the most recent financial statements delivered pursuant to Clause 21.1 (Financial statements) there has been no material adverse change in the assets, business or financial condition of any of the Obligors or any other member of the Group.

20.1.13
No proceedings

(a)
No litigation, arbitration or administrative proceedings or investigation of or before any court, arbitral body or agency which, if adversely determined, are reasonably likely to have a Material Adverse Effect have (to the best of its knowledge and belief (having made due and careful enquiry)) been started or threatened against any of the Obligors.

(b)
No judgment or order of a court, arbitral body or agency which is reasonably likely to have a Material Adverse Effect has (to the best of its knowledge and belief (having made due and careful enquiry)) been made against any of the Obligors.

20.1.14
No breach of laws   None of the Obligors has breached any law or regulation which breach has or is reasonably likely to have a Material Adverse Effect.

20.1.15
Environmental laws

(a)
Each of the Obligors and each other member of the Group is in compliance with Clause 23.3 (Environmental compliance) and to the best of its knowledge and belief (having made due and careful enquiry) no circumstances have occurred which would prevent such compliance in a manner or to an extent which has or is reasonably likely to have a Material Adverse Effect.

(b)
No Environmental Claim has been commenced or (to the best of its knowledge and belief (having made due and careful enquiry)) is threatened against any of the Obligors or any other member of the Group where that claim has or is reasonably likely, if determined against that Obligor or other member of the Group, to have a Material Adverse Effect.
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20.1.16
Taxation

(a)
None of the Obligors is materially overdue in the filing of any Tax returns or is overdue in the payment of any amount in respect of Tax.

(b)
No claims or investigations are being, or are reasonably likely to be, made or conducted against any of the Obligors with respect to Taxes.

(c)
Each of the Obligors is resident for Tax purposes only in its Original Jurisdiction.

20.1.17
Anti-corruption law   Each of the Obligors and each other member of the Group and each Affiliate of any of them has conducted its businesses in compliance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

20.1.18
No Encumbrance or Financial Indebtedness

(a)
No Encumbrance or Quasi-Security exists over all or any of the present or future assets of any of the Obligors other than as permitted by the Finance Documents.

(b)
None of the Obligors has any Financial Indebtedness outstanding other than as permitted by this Agreement.

20.1.19
Pari passu ranking   The payment obligations of each of the Obligors under the Finance Documents to which it is a party rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies generally.

20.1.20
No adverse consequences

(a)
It is not necessary under the laws of the Relevant Jurisdictions of any of the Obligors:

(i)
in order to enable any Finance Party to enforce its rights under any Finance Document; or

(ii)
by reason of the execution of any Finance Document or the performance by it of its obligations under any Finance Document,
that any Finance Party should be licensed, qualified or otherwise entitled to carry on business in any of the Relevant Jurisdictions of any of the Obligors.

(b)
No Finance Party is or will be deemed to be resident, domiciled or carrying on business in any of the Relevant Jurisdictions of any of the Obligors by reason only of the execution, performance and/or enforcement of any Finance Document.
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20.1.21
Disclosure of material facts   No Borrower is aware of any material facts or circumstances which have not been disclosed to the Agent and which might, if disclosed, have changed the decision of a person willing to make loan facilities of the nature contemplated by this Agreement available to the Borrowers.

20.1.22
Completeness of Relevant Documents   The copies of any Relevant Documents provided or to be provided by the Borrowers to the Agent in accordance with Clause 4 (Conditions of Utilisation) are, or will be, true and accurate copies of the originals and represent, or will represent, the full agreement between the parties to those Relevant Documents in relation to the subject matter of those Relevant Documents and there are no commissions, rebates, premiums or other payments due or to become due in connection with the subject matter of those Relevant Documents other than in the ordinary course of business or as disclosed to, and approved in writing by, the Agent.

20.1.23
No immunity   No Obligor or any of its assets is immune to any legal action or proceeding.

20.1.24
Money laundering   Any borrowing by a Borrower under this Agreement, and the performance of its obligations under this Agreement and under the other Finance Documents, will be for its own account and will not involve any breach by it of any law or regulatory measure relating to "money laundering" as defined in Article 1 of the Directive ((EU) 2015/849) of the European Parliament and of the Council of the European Communities.

20.1.25
Sanctions

(a)
None of the Obligors, any other member of the Group or any Affiliate of any of them is a Restricted Party or is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Restricted Party and none of such persons owns or controls a Restricted Party.

(b)
No proceeds of the Loan shall be made available, directly or indirectly, to or for the benefit of a Restricted Party or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.

(c)
Each of the Obligors, each other member of the Group and each Affiliate of any of them is in compliance with all Sanctions.

20.1.26
Ownership and control of Borrowers   Each Borrower is a wholly owned direct or indirect subsidiary of the Original Guarantor and is controlled by the Original Guarantor.

20.1.27
Ranking Any Encumbrance created or expressed to be created in favour of the Security Agent pursuant to the Security Documents has or will have the ranking in priority which it is expressed to have in the Security Documents and it is not subject to any prior ranking or pari passu ranking of an Encumbrance.
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20.1.28
Ownership of assets With effect on and from the date of its creation or intended creation, each Obligor will be the sole legal and beneficial owner of any asset that is the subject of any Security Document created or intended to be created.

20.1.29
Centre of main interests and establishments For the purposes of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the "Regulation"), each Obligor's centre of main interest (as that term is used in Article 3(1) of the Regulation) is situated in its Original Jurisdiction and it has no "establishment" (as that term is used in Article 2(h) of the Regulation) in any other jurisdiction.
20.2
Repetition   Each Repeating Representation is deemed to be made by each Borrower and each Guarantor by reference to the facts and circumstances then existing on the date of this Agreement, the date of the Utilisation Request, on the Utilisation Date, on the first day of each Interest Period and, in the case of those contained in Clauses 20.1.12(d) and 20.1.12(f) (Financial statements) and for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.
21
Information Undertakings
The undertakings in this Clause 21 remain in force for the duration of the Facility Period.
21.1
Financial statements The Original Guarantor shall supply to the Agent in sufficient copies for all of the Lenders:

21.1.1
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;

21.1.2
as soon as the same become available, but in any event within 120 days after the end of semi-annual period during each of its financial years the unaudited financial statements for that semi-annual period.
21.2
Compliance Certificate

21.2.1
The Original Guarantor shall supply to the Agent, with each set of its annual financial statements delivered pursuant to Clause 21.1.1 (Financial statements) and each set of its semi-annual financial statements delivered pursuant to Clause 21.1.2 (Financial statements), a Compliance Certificate setting out (in detail) computations as to compliance with Clause 22 (Financial Covenants) and Clause 18.1 (VTL Coverage) as at the date as at which those financial statements were drawn up.

21.2.2
Each Compliance Certificate shall be signed by two authorised signatories or the Chief Financial Officer of the Guarantor and shall be provided together with relevant valuation certificates for the Borrowers' Vessels in the form agreed by that Guarantor and all the Lenders.

21.2.3
For the purposes of testing the Financial Covenants contained in Clause 22 (Financial Covenants), each Compliance Certificate supplied to the Agent
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together with the Original Guarantor’s semi-annual financial statements delivered pursuant to Clause 21.1.2 shall be accompanied by a breakdown (in excel format) of the Market Value of each Fleet Vessel, provided, however, that such breakdown shall not be supported by any valuation certificates from either an Approved Shipbroker or any other shipbroker.
21.3
Requirements as to financial statements
Each set of financial statements delivered pursuant to Clause 21.1 (Financial statements):

21.3.1
shall be certified by a director of the Original Guarantor as fairly representing its financial condition and operations as at the date as at which those financial statements were drawn up; and

21.3.2
shall be prepared using GAAP, accounting practices and financial reference periods consistent with those applied in the preparation of the Original Financial Statements unless, in relation to any set of financial statements, it notifies the Agent that there has been a change in GAAP, the accounting practices or reference periods and its auditors deliver to the Agent:

(a)
a description of any change necessary for those financial statements to reflect the GAAP, accounting practices and reference periods upon which the Original Financial Statements were prepared; and

(b)
sufficient information, in form and substance as may be reasonably required by the Agent, to enable the Agent to determine whether Clause 22 (Financial Covenants) has been complied with and make an accurate comparison between the financial position indicated in those financial statements and the Original Financial Statements.
Any reference in this Agreement to those financial statements shall be construed as a reference to those financial statements as adjusted to reflect the basis upon which the Original Financial Statements were prepared.
21.4
Information: miscellaneous   Each Borrower shall supply to the Agent (in sufficient copies for all the Lenders, if the Agent so requests):

21.4.1
at the same time as they are dispatched, copies of all documents dispatched by that Borrower to its shareholders generally (or any class of them) or dispatched by that Borrower or any other Obligor to its creditors generally (or any class of them);

21.4.2
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Obligor and which, if adversely determined, are reasonably likely to have a Material Adverse Effect;

21.4.3
promptly upon becoming aware of them, the details of any judgment or order of a court, arbitral body or agency which is made against any Obligor and which is reasonably likely to have a Material Adverse Effect;
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21.4.4
promptly, such information and documents as the Security Agent may reasonably require about the Charged Property and compliance of the Obligors with the terms of any Security Documents (including without limitation cash flow analyses and details of the operating costs of any Vessel); and

21.4.5
promptly on request, such further information regarding the financial condition, assets and operations of any Obligor or any other member of the Group (including any requested amplification or explanation of any item in the financial statements, budgets or other material provided by any Obligor under this Agreement, any changes to management of the Group and an up to date copy of its shareholders' register (or equivalent in its Original Jurisdiction)) as any Finance Party through the Agent may reasonably request.
21.5
Notification of default

21.5.1
Each Borrower and each Guarantor shall notify the Agent of (i) any  Default (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence and (ii) any indication that the financial covenants in Clause 22 shall not be met.

21.5.2
Promptly upon a request by the Agent, each Borrower shall supply to the Agent a certificate signed by two 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).
21.6
"Know your customer" checks

21.6.1
If:

(a)
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;

(b)
any change in the status of an Obligor (or of a Holding Company of an Obligor) or the composition of the shareholders of an Obligor (or of a Holding Company of an Obligor) after the date of this Agreement; or

(c)
a proposed assignment or transfer by a Lender of any of its rights and obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer; or

(d)
any anti-money laundering or anti-terrorism financing laws and regulations applicable to the Facility Agent or any Lender,
obliges the Agent or any Lender (or, in the case of Clause 21.6.1(c), any prospective new Lender) to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, each Borrower shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent
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(for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the event described in Clause 21.6.1(c), on behalf of any prospective new Lender) in order for the Agent, such Lender or, in the case of the event described in Clause 21.6.1(c), any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the transactions contemplated in the Finance Documents.

21.6.2
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.

21.6.3
The Borrowers shall, by not less than ten Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of the intention to request that any other member of the Group becomes an Additional Guarantor pursuant to Clause 26  (Changes to the Obligors).

21.6.4
Following the giving of any notice pursuant to Clause 21.6.3, if the accession of such Additional Guarantor obliges the Agent or any Lender to comply with "know your customer" or similar identification procedures in circumstances where the necessary information is not already available to it, the Borrowers shall promptly upon the request of the Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for the Agent or such Lender or any prospective new Lender to carry out and be satisfied it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations pursuant to the accession of such member of the Group to this Agreement as an Additional Guarantor.
22
Financial Covenants
22.1
The Original Guarantor shall maintain throughout the Facility Period a Market Value Adjusted Net Worth of:-

22.1.1
not less than 25% of Market Value Adjusted Total Assets; and

22.1.2
not less than $150,000,000.
The financial covenants contained in this Clause 22 shall be tested for the first time on 30 June 2021, and thereafter semi-annually on the basis of the annual financial statements and semi annual financial statements (as applicable) to be provided under Clause 21.1 (Financial statements) and shall be confirmed in the relevant Compliance Certificate.
The expressions used in this Clause shall be construed in accordance with GAAP, and for the purposes of this Agreement:-
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"Fleet Vessel" means any vessel (including, but not limited to, the Vessels) from time to time wholly owned by a member of the Group (directly or indirectly) including chartered-in vessels for which a member of the Group has a purchase obligation but excluding, for the avoidance of doubt, any newbuilding vessels not delivered to the relevant member of the Group at the relevant time, and "Fleet Vessels" means more than one of them).
"Market Value Adjusted Net Worth" means the amount by which the Market Value Adjusted Total Assets exceed the Total Liabilities;
"Market Value Adjusted Total Assets" means, at any time, Total Assets adjusted to reflect the difference between the book values of all Fleet Vessels and the aggregate Market Value of all Fleet Vessels and any vessels from time to time wholly owned by a member of the Group (directly or indirectly) which are subject to lease transactions;
"Total Assets" means, as at the date of calculation or, as the case may be, for any accounting period, the aggregate value of all assets of the Group (including, without limitation, the Vessels) included in the annual or semi-annual (as the case may be) financial statements provided under Clause 21.1 (Financial statements) in accordance with GAAP, as at that date or for that period as shown in the most recent financial statements provided by the Original Guarantor pursuant to Clause 21.1 (Financial statements); and
"Total Liabilities" means, as at the date of calculation or, as the case may be, for any accounting period, the total liabilities of the Group as determined in conformity with GAAP, as at that date or for that period as shown in the most recent financial statements provided by the Original Guarantor pursuant to Clause 21.1 (Financial statements).
22.2
Each Borrower shall at all times during the Facility Period maintain the Minimum Liquidity Amount in a bank account with the Account Holder, in each case free of any Encumbrances other than in favour of the Security Agent.
23
General Undertakings
The undertakings in this Clause 23 remain in force for the duration of the Facility Period.
23.1
Authorisations   Each Borrower and each Guarantor shall promptly:

23.1.1
obtain, comply with and do all that is necessary to maintain in full force and effect; and

23.1.2
supply certified copies to the Agent of,
any Authorisation required under any law or regulation of a Relevant Jurisdiction to:

(a)
enable any Obligor to perform its obligations under the Finance Documents to which it is a party;
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(b)
ensure the legality, validity, enforceability or admissibility in evidence of any Finance Document; and

(c)
enable any Obligor to carry on its business where failure to do so has or is reasonably likely to have a Material Adverse Effect.
23.2
Compliance with laws

23.2.1
Each Borrower and each Guarantor shall comply (and shall procure that each other Obligor, each other member of the Group and each Affiliate of any of them will comply), in all respects with all laws to which it may be subject, if (except as regards Sanctions, to which Clause 23.2.2 applies, and anti-corruption laws, to which Clause 23.5 applies) failure so to comply has or is reasonably likely to have a Material Adverse Effect.

23.2.2
Each Borrower and each Guarantor shall comply (and shall procure that each other Obligor, each other member of the Group and each Affiliate of any of them will comply) in all respects with all Sanctions.
23.3
Environmental compliance
Each Borrower and each Guarantor shall:

23.3.1
comply with all Environmental Laws;

23.3.2
obtain, maintain and ensure compliance with all requisite Environmental Approvals; and

23.3.3
implement procedures to monitor compliance with and to prevent liability under any Environmental Law,
where failure to do so has or is reasonably likely to have a Material Adverse Effect.
23.4
Environmental Claims
Each Borrower and each Guarantor shall promptly upon becoming aware of the same, inform the Agent in writing of:

23.4.1
any Environmental Claim against any of the Obligors or any other member of the Group which is current, pending or threatened; and

23.4.2
any facts or circumstances which are reasonably likely to result in any Environmental Claim being commenced or threatened against any of the Obligors or any other member of the Group,
where the claim, if determined against that Obligor or other member of the Group, has or is reasonably likely to have a Material Adverse Effect.
23.5
Anti-corruption law

23.5.1
Each Borrower and each Guarantor shall not (and shall procure that no other Obligor or other member of the Group will) directly or indirectly use the proceeds of the Loan for any purpose which would breach the Bribery
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Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions.

23.5.2
Each Borrower and each Guarantor shall (and shall procure that each other Obligor and each other member of the Group will):

(a)
conduct its businesses in compliance with applicable anti-corruption laws; and

(b)
maintain policies and procedures designed to promote and achieve compliance with such laws.
23.6
Taxation

23.6.1
Each Borrower and each Guarantor shall (and shall procure that each other Obligor and each other member of the Group will) pay and discharge all Taxes imposed upon it or its assets within the time period allowed without incurring penalties unless and only to the extent that:

(a)
such payment is being contested in good faith;

(b)
adequate reserves are being maintained for those Taxes and the costs required to contest them which have been disclosed in its latest financial statements delivered to the Agent under Clause 21.1 (Financial statements); and

(c)
such payment can be lawfully withheld and failure to pay those Taxes does not have or is not reasonably likely to have a Material Adverse Effect.

23.6.2
Neither any Borrower nor any Guarantor may (and no other Obligor or other member of the Group may) change its residence for Tax purposes.
23.7
Evidence of good standing   Each Borrower will from time to time, if applicable and if requested by the Agent, provide the Agent with evidence in form and substance satisfactory to the Agent that each Obligor and each corporate shareholder of an Obligor remains in good standing.
23.8
Pari passu ranking   Each Borrower and each Guarantor shall ensure that at all times any unsecured and unsubordinated claims of a Finance Party against it under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies.
23.9
Negative pledge
In this Clause 23.9 "Quasi-Security" means an arrangement or transaction described in Clause 23.9.2.
Except as permitted under Clause 23.9.3:

23.9.1
The Borrowers shall not create nor permit to subsist any Encumbrance over any of its assets.
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23.9.2
The Borrowers shall not:

(a)
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;

(b)
sell, transfer or otherwise dispose of any of its receivables on recourse terms;

(c)
enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or

(d)
enter into any other preferential arrangement having a similar effect,
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.

23.9.3
Clauses 23.9.1 and 23.9.2 do not apply to any Encumbrance or (as the case may be) Quasi-Security, which is a Permitted Encumbrance.
23.10
Disposals

23.10.1
Except as permitted under Clause 23.10.2, the Borrowers shall not enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any asset.

23.10.2
Clause 23.10.1 does not apply to: (a) any sale, lease, transfer or other disposal which is a Permitted Disposal and (b) (subject to the provisions of the Security Documents) any charter of a Vessel with a duration not exceeding 24 months.
23.11
Arm's length basis

23.11.1
Except as permitted under Clause 23.11.2, the Borrowers shall not enter into any transaction with any person except on arm's length terms and for full market value.

23.11.2
The following transactions shall not be a breach of this Clause 23.10.2 fees, costs and expenses payable under the Relevant Documents in the amounts set out in the Relevant Documents delivered to the Agent under Clause 4.1 (Initial conditions precedent) or agreed by the Agent.
23.12
Merger   The Borrowers shall not enter into any amalgamation, demerger, merger, consolidation or corporate reconstruction.
23.13
Change of business   The Borrowers shall not make any substantial change to the general nature of its business from that carried on at the date of this Agreement.
23.14
No other business   No Borrower shall engage in any business other than the ownership, operation, chartering and management of the relevant Vessel.
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23.15
No acquisitions   The Borrowers shall not acquire a company or any shares or securities or a business or undertaking (or, in each case, any interest in any of them) or incorporate a company.
23.16
No Joint Ventures   No Borrower shall:

23.16.1
enter into, invest in or acquire (or agree to acquire) any shares, stocks, securities or other interest in any Joint Venture; or

23.16.2
transfer any assets or lend to or guarantee or give an indemnity for or give security for the obligations of a Joint Venture or maintain the solvency of or provide working capital to any Joint Venture (or agree to do any of the foregoing).
23.17
No borrowings   No Borrower shall incur or allow to remain outstanding any Financial Indebtedness (including without limitation any loans from the Original Guarantor or any other member of the Group) (except for the Loan), unless it is subordinated to the Loan on terms acceptable to the Agent in its absolute discretion including in respect of intragroup loans, without limitation provisions prohibiting repayment if an Event of Default has occurred and is continuing.
23.18
No substantial liabilities   Except in the ordinary course of business, no Borrower shall incur any liability to any third party which is in the Agent's opinion of a substantial nature.
23.19
No loans or credit   None of the Borrowers shall be a creditor in respect of any Financial Indebtedness.
23.20
No guarantees or indemnities   None of the Borrowers shall incur or allow to remain outstanding any guarantee in respect of any obligation of any person.
23.21
No dividends   If an Event of Default has occurred or is continuing or would result from any of the actions referred to below, the Borrower shall not:

23.21.1
declare, make or pay any dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital (or any class of its share capital);

23.21.2
repay or distribute any dividend or share premium reserve;

23.21.3
pay any management, advisory or other fee to or to the order of any of the shareholders of the Guarantor;

23.21.4
redeem, repurchase, defease, retire or repay any of its share capital or resolve to do so; or

23.21.5
issue any new shares in its share capital or resolve to do so.
23.22
People with significant control regime   Each Borrower and each Guarantor shall (and shall procure that each other Obligor will):

23.22.1
within the relevant timeframe, comply with any notice it receives pursuant to Part 21A of the Companies Act 2006 from any company incorporated in
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the United Kingdom whose shares are the subject of any Security Document; and

23.22.2
promptly provide the Security Agent with a copy of that notice.
23.23
No change in Relevant Documents   Neither any Borrower nor any Guarantor shall (and the Borrowers shall procure that no other Obligor will) amend, vary, novate, supplement, supersede, waive or terminate any term of, any of the Relevant Documents which are not Finance Documents, or any other document delivered to the Agent pursuant to Clause 4.1 (Initial conditions precedent) or Clause 4.1 (Further conditions precedent) or Clause 4.3 (Conditions subsequent).
23.24
Further assurance

23.24.1
Each Borrower and each Guarantor shall (and shall procure that each other Obligor and each other member of the Group will) promptly do all such acts or execute all such documents (including assignments, transfers, mortgages, charges, notices and instructions) as the Security Agent may reasonably specify (and in such form as the Security Agent may reasonably require in favour of the Security Agent or its nominee(s)):

(a)
to perfect any Encumbrance created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Encumbrance over all or any of the assets which are, or are intended to be, the subject of the Security Documents) or for the exercise of any rights, powers and remedies of the Security Agent or the Finance Parties provided by or pursuant to the Finance Documents or by law;

(b)
to confer on the Security Agent or confer on the Finance Parties an Encumbrance over any property and assets of that Borrower (or that other Obligor or that other member of the Group as the case may be) located in any jurisdiction equivalent or similar to the Encumbrance intended to be conferred by or pursuant to the Security Documents; and/or

(c)
to facilitate the realisation of the assets which are, or are intended to be, the subject of the Security Documents.

23.24.2
Each Borrower and each Guarantor shall (and shall procure that each other Obligor and each other member of the Group will) 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 Encumbrance conferred or intended to be conferred on the Security Agent or the Finance Parties by or pursuant to the Finance Documents.
23.25
Inventory of Hazardous Materials Each Borrower shall ensure that each Vessel owned by it carries an IHM from the relevant approved classification society on or before the date such IHM becomes mandatory pursuant to any applicable law or regulation.
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23.26
Recycling  Each Borrower shall confirm that as long as it is in a lending relationship with ABN AMRO Bank N.V., it will ensure that any ship controlled by it or sold to an intermediary with the intention of being scrapped, is recycled at a recycling yard which conducts its recycling business in a socially and environmentally responsible manner, in accordance with the provisions of The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009 and/or EU Ship Recycling Regulation.
23.27
Sanctions

23.27.1
Each Obligor shall (and each Borrower shall procure that each member of the Group will) comply with all Sanctions.

23.27.2
No Obligor shall (and the Borrowers shall procure that no Obligor and no member of the Group will) become a Restricted Party or act on behalf of, or as an agent of, a Restricted Party, to the extent this would lead to non-compliance by it or any other Party with any applicable Sanctions.

23.27.3
No Obligor shall (and the Borrowers shall procure that no Obligor and no member of the Group will) use, lend, contribute or otherwise make available the proceeds of any Loan or other transaction contemplated by this Agreement directly or indirectly for the purpose of financing any trade, business or other activities with any Restricted Party, to the extent, in each case, such use, lending, contributing or otherwise making available.

23.27.4
The proceeds would lead to non-compliance by it or any other Party with any applicable Sanctions.

23.27.5
No Obligor shall (and the Borrowers shall procure that no Obligor and no member of the Group will) use any revenue or benefit derived from any activity or dealing with a Restricted Party in discharging any obligation due or owing to the Finance Parties to the extent such use would lead to non-compliance by it or any other Party with any applicable Sanctions.

23.27.6
No Obligor shall (and each Borrower shall procure that each other Obligor or member of the Group will) procure that no proceeds from any activity or dealing with a Restricted Party are credited to any bank account held with any Finance Party or any Affiliate of a Finance Party, to the extent crediting such bank account would lead to non-compliance by it, any Finance Party or any Affiliate of a Finance Party with any applicable Sanctions.

23.27.7
No Obligor shall (and the Borrowers shall procure that no Obligor and no member of the Group will) to the extent permitted by law and promptly upon becoming aware of them, supply to the Agent details of any claim, action, suit, proceedings or investigation against it with respect to Sanctions by any Sanctions Authority.

23.27.8
Any provisions of this Clause 23.27, or Clause 20.1.25 shall not apply to or in favour of any Finance Party if and to the extent that it would result in a breach, by or in respect of that Finance Party, of any applicable Blocking Law.
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23.27.9
For the purposes of this Clause 23.27, Blocking Law means

(a)
Any provision of Council Regulation (EC) No 2271/1996 of 22 November 1996 (or any law or regulation implementing such Regulation in any member state of the European Union or the United Kingdom); or

(b)
Any similar blocking or anti-boycott law applicable to that Finance Party.
(c)
Ownership The Borrower shall procure that there is no change in the ownership of any Borrower without the prior written consent of the Agent (acting on the instructions of all the Lenders).
23.28
Poseidon Principles

23.28.1
In this Clause 23.28:
"Poseidon Principles" means the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published on 18 June 2019 as the same may be amended or replaced (to reflect changes in applicable law or regulation or the introduction of, or changes to, mandatory requirements of the International Maritime Organization) from time to time.
"Relevant Lender" means the Lender if it has, at any time during the Facility Period, become a signatory to the Poseidon Principles.
"Statement of Compliance" means a statement of compliance related to fuel oil consumption pursuant to regulations 6.6 and 6.7 of Annex VI.
23.29
The Borrowers shall, upon the request of the Relevant Lender and at the cost of the Borrowers, on or before 31 July in each calendar year, supply or procure the supply to the Relevant Lender of all information necessary in order for the Relevant Lender to comply with its obligations under the Poseidon Principles in respect of the preceding calendar year, including, without limitation, a "Fleet Carbon Intensity Certificate" from a Recognized Organization relating to each Borrowers’ Vessel for the preceding calendar year using all ship fuel oil consumption data required to be collected and reported in accordance with regulation 22A of Annex VI in respect of that calendar year , provided that the Relevant Lender shall not publicly disclose such information with the identity of the Borrowers Vessel without the prior written consent of the Borrowers and, for the avoidance of doubt, such information shall be "Confidential lnformation" for the purposes of Clause 39.1 (Confidential Information) but the Borrowers acknowledge that, in accordance with the Poseidon Principles, such information will form part of the information published regarding the Relevant Lender's portfolio climate alignment.
23.30
No dealings with Master Agreement   No Borrower shall assign, novate or encumber or in any other way transfer any of its rights or obligations under the Master Agreement, nor enter into any interest rate exchange or hedging agreement with anyone other than the Swap Provider.
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24
Events of Default
24.1
Events of Default   Each of the events or circumstances set out in this Clause 24.1 is an Event of Default.

24.1.1
Non-payment   An Obligor does not pay on the due date any amount payable by it under a Finance Document at the place at and in the currency in which it is expressed to be payable unless:

(a)
its failure to pay is caused by:

(i)
administrative or technical error; or

(ii)
a Disruption Event; and

(b)
payment is made within two Business Days of its due date.

24.1.2
Other specific obligations

(a)
Any requirement of Clause 21.2 (Compliance Certificate), Clause 22 (Financial Covenants) and 23.27 (Sanctions) is not satisfied.

(b)
An Obligor does not comply with any obligation in a Finance Document relating to the Insurances or with Clauses 3.1 (Purpose), 4.4 (No waiver), 7.5 (Mandatory prepayment on sale or Total Loss), 7.8 (Prepayment – Change of Control), 18.1 (Additional security), 21.1 (Financial statements), 23.21 (No dividends), 20.1.17 (Anti-corruption law), 23.2 (Compliance with laws), 23.5 (Anti-corruption law), 23.8 (Pari passu ranking).

24.1.3
Other obligations

(a)
An Obligor does not comply with any provision of a Finance Document (other than those referred to in Clause 24.1.1 (Non-payment) and Clause 24.1.2 (Other specific obligations).

(b)
No Event of Default under this Clause 24.1.3 will occur if the failure to comply is capable of remedy and is remedied within fifteen Business Days of the earlier of (i) the Agent giving notice to the Borrowers and (ii) the Borrowers becoming aware of the failure to comply.

24.1.4
Misrepresentation   Any representation or statement made or deemed to be made by an Obligor in any Finance Document or any other document delivered by or on behalf of an Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading when made or deemed to be made.

24.1.5
Cross default

(a)
Any Financial Indebtedness of an Obligor or of any other member of the Group is not paid when due nor within any originally applicable grace period.
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(b)
Any Financial Indebtedness of an Obligor or of any other 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 an Obligor or of any other member of the Group is cancelled or suspended by a creditor of an Obligor or of any other member of the Group as a result of an event of default (however described).

(d)
Any creditor of an Obligor or of any other member of the Group becomes entitled to declare any Financial Indebtedness of an Obligor or of any other member of the Group due and payable prior to its specified maturity as a result of an event of default (however described).

(e)
No Event of Default will occur under this Clause 24.1.5 if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within (a) to (d) is less than $10,000,000 in aggregate in the case of each Guarantor or each other member of the Group (other than a Borrower) and (ii) less than $500,000 in aggregate in the case of a Borrower (or, in each case, its equivalent in any other currency or currencies).

24.1.6
Insolvency

(a)
An Obligor or any other member of the Group:

(i)
is unable or admits inability to pay its debts as they fall due;

(ii)
is deemed to, or is declared to, be unable to pay its debts under applicable law;

(iii)
suspends or threatens to suspend making payments on any of its debts; or

(iv)
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 an Obligor or any other 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 an Obligor or any other member of the Group.  If a moratorium occurs, the ending of the moratorium will not remedy any Event of Default caused by that moratorium.

24.1.7
Insolvency proceedings   Any corporate action, legal proceedings or other procedure or step is taken in relation to:
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(a)
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, bankruptcy or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of an Obligor or any other member of the Group;

(b)
a composition, compromise, assignment or arrangement with any creditor of an Obligor or any other member of the Group;

(c)
the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager, trustee or other similar officer in respect of an Obligor or any other member of the Group or any of its assets; or

(d)
enforcement of any Encumbrance over any assets of an Obligor or any other member of the Group,
or any analogous procedure or step is taken in any jurisdiction.
This Clause 24.1.7 shall not apply to (i) any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 30 days of commencement or (ii) any arrest or detention of a Vessel from which that Vessel is released within 60 days from the date of that arrest or detention.

24.1.8
Creditors' process   Any expropriation, attachment, sequestration, distress or execution (or any analogous process in any jurisdiction) affects any asset or assets of an Obligor or any other member of the Group and is not discharged within 30 days.

24.1.9
Unlawfulness and invalidity

(a)
It is or becomes unlawful for an Obligor to perform any of its obligations under the Finance Documents or any Encumbrance created or expressed to be created or evidenced by the Security Documents ceases to be effective.

(b)
Any obligation or obligations of any Obligor under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lenders under the Finance Documents.

(c)
Any Finance Document ceases to be in full force and effect or any Encumbrance created or expressed to be created or evidenced by the Security Documents ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than a Finance Party) to be ineffective.

24.1.10
Cessation of business   An Obligor or any other member of the Group ceases, or threatens to cease, to carry on all or a substantial part of its business except as a result of a Permitted Disposal.
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24.1.11
Change in ownership or control of a Borrower or a Guarantor There is any change in the ownership of a Borrower or a Collateral Guarantor.

24.1.12
Expropriation   The authority or ability of an Obligor or any other member of the Group to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalisation, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other person in relation to an Obligor or any member of the Group or any of its assets.

24.1.13
Repudiation and rescission of agreements

(a)
An Obligor rescinds or purports to rescind or repudiates or purports to repudiate a Finance Document or evidences an intention to rescind or repudiate a Finance Document.

(b)
Subject to Clause 24.1.13(c), any party to any of the Relevant Documents that is not a Finance Document rescinds or purports to rescind or repudiates or purports to repudiate that Relevant Document in whole or in part where to do so has or is, in the reasonable opinion of the Majority Lenders, likely to have a material adverse effect on the interests of the Lenders under the Finance Documents.

(c)
Any of the Management Agreements is terminated, cancelled or otherwise ceases to remain in full force and effect at any time prior to its contractual expiry date and is not immediately replaced by a similar agreement in form and substance satisfactory to the Majority Lenders.

24.1.14
Conditions subsequent   Any of the conditions referred to in Clause 4.3 (Conditions subsequent) is not satisfied within the time reasonably required by the Agent.

24.1.15
Revocation or modification of Authorisation   Any Authorisation of any governmental, judicial or other public body or authority which is now, or which at any time during the Facility Period becomes, necessary to enable any of the Obligors or any other person (except a Finance Party) to comply with any of their obligations under any Relevant Document is not obtained, is revoked, suspended, withdrawn or withheld, or is modified in a manner which the Agent considers is, or may be, prejudicial to the interests of any Finance Party, or ceases to remain in full force and effect.

24.1.16
Reduction of capital   A Borrower reduces its authorised or issued or subscribed capital.

24.1.17
Loss of Vessel   A Vessel suffers a Total Loss or is otherwise destroyed or abandoned, or a similar event occurs in relation to any other vessel which may from time to time be mortgaged to the Security Agent as security for the payment of all or any part of the Indebtedness, except that a Total Loss (which term shall for the purposes of the remainder of this Clause 24.1.17
Page 80

include an event similar to a Total Loss in relation to any other vessel) shall not be an Event of Default if:

(a)
that Vessel or other vessel is insured in accordance with the Security Documents and a claim for Total Loss is available under the terms of the relevant insurances; and

(b)
no insurer has refused to meet or has disputed the claim for Total Loss and it is not apparent to the Agent in its discretion that any such refusal or dispute is likely to occur; and

(c)
payment of all insurance proceeds in respect of the Total Loss is made in full to the Security Agent within 120 days of the occurrence of the casualty giving rise to the Total Loss in question (save that, in relation to a Total Loss under part (c) of the definition of Total Loss, an Event of Default shall not occur if payment of all insurance proceeds in respect of that Total Loss is made in full to the Security Agent within 120 days after that Total Loss has occurred) or (in each such case) such longer period as the Agent may in its discretion agree.

24.1.18
Challenge to registration   The registration of a Vessel or a Mortgage is contested or becomes void or voidable or liable to cancellation or termination, or the validity or priority of a Mortgage is contested.

24.1.19
War   The country of registration of a Vessel becomes involved in war (whether or not declared) or civil war or is occupied by any other power and the Agent considers that, as a result, the security conferred by any of the Security Documents is materially prejudiced.

24.1.20
Master Agreement termination   A notice is given by the Swap Provider under section 6(a) of the Master Agreement, or by any person under section 6(b)(iv) of the Master Agreement, in either case designating an Early Termination Date for the purpose of the Master Agreement, or the Master Agreement is for any other reason terminated, cancelled, suspended, rescinded, revoked or otherwise ceases to remain in full force and effect.

24.1.21
Notice of determination   A Guarantor gives notice to the Security Agent to determine any obligations under the relevant Guarantee.

24.1.22
Litigation   Any litigation, arbitration or administrative proceedings or investigations of, or before, any court, arbitral body or agency are started or threatened, or any judgment or order of a court, arbitral body or agency is made, in relation to the Relevant Documents or the transactions contemplated in the Relevant Documents or against an Obligor or any other member of the Group or its assets which have, or has, or are, or is, reasonably likely to have a Material Adverse Effect.

24.1.23
Material adverse change   Any event or circumstance occurs which the Majority Lenders reasonably believe has or is reasonably likely to have a Material Adverse Effect.
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24.1.24
Listing of Original Guarantor The shares (or any part thereof) of the Original Guarantor cease to be listed on the New York Stock Exchange or Nasdaq Global Select Market, Nasdaq Global Market, Nasdaq Capital Market and any successor thereof or any other internationally recognised stock exchange acceptable to the Agent.
24.2
Acceleration   On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders:

24.2.1
by notice to the Borrowers:

(a)
cancel the Total Commitments, at which time 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 be immediately due and payable, at which time they shall become immediately due and payable; and/or

(c)
declare that all or part of the Loan be payable on demand, at which time it shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders; and/or

24.2.2
exercise or direct the Security Agent to exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
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Section 9
Changes to Parties
25
Changes to the Lenders
25.1
Assignments and transfers by the Lenders   Subject to this Clause 25, a Lender (the "Existing Lender") may:

25.1.1
assign any of its rights; or

25.1.2
transfer by novation any of its rights and obligations,
under any Finance Document to another bank or financial institution or to a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets (the "New Lender").
25.2
Conditions of assignment or transfer

25.2.1
An Existing Lender must obtain the prior written consent of the Borrowers before it may make an assignment or transfer in accordance with Clause 25.1 (Assignments and transfers by the Lenders) unless the assignment or transfer is:

(a)
to another Lender or an Affiliate of any Lender;

(b)
to a fund which is a Related Fund of that Existing Lender;

(c)
made at a time when an Event of Default is continuing;

(d)
to any bank or a financial institution
provided, however, that:

(i)
in case (d) above the assignment or transfer shall be subject to prior consultation of the Borrowers at least 28 days prior to such assignment or transfer.

25.2.2
The consent of the Borrowers to an assignment or transfer must not be unreasonably withheld or delayed.  The Borrowers will be deemed to have given their consent five Business Days after the Lender has requested it unless consent is expressly refused by the Borrowers within that time.

25.2.3
An assignment will only be effective on:

(a)
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 and the other Secured Parties as it would have been under if it had been an Original Lender; and

(b)
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
Page 83

which the Agent shall promptly notify to the Existing Lender and the New Lender.

25.2.4
A transfer will only be effective if the procedure set out in Clause 25.5 (Procedure for transfer) is complied with.

25.2.5
If:

(a)
a Lender assigns or transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and

(b)
as a result of circumstances existing at the date the assignment, transfer or change occurs, a Borrower or a Guarantor 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) or Clause 13 (Increased Costs),
then the New Lender or Lender acting through its new Facility Office is only entitled to receive payment under those Clauses to the same extent as the Existing Lender or Lender acting through its previous Facility Office would have been if the assignment, transfer or change had not occurred.  This Clause 25.2.5 shall not apply:

(c)
in respect of an assignment or transfer made in the ordinary course of the primary syndication of the Loan; or

(d)
in relation to Clause 12.2 (Tax gross-up), to a Treaty Lender that has included a confirmation of its scheme reference number and its jurisdiction of tax residence in accordance with Clause 12.2.7(b)(ii) (Tax gross-up) if the Borrower making the payment has not made a Borrower DTTP Filing in respect of that Treaty Lender.

25.2.6
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.
25.3
Assignment or transfer fee

25.3.1
Subject to Clause 25.3.2, the New Lender shall, on the date upon which an assignment or transfer takes effect, pay to the Agent (for its own account) a fee of $3,000.

25.3.2
No fee is payable pursuant to Clause 25.3.1 if:

(a)
the Agent agrees that no fee is payable; or

(b)
the assignment or transfer is made by an Existing Lender:
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(i)
to an Affiliate of that Existing Lender;

(ii)
to a fund which is a Related Fund of that Existing Lender; or

(iii)
in connection with primary syndication of the Loan.
25.4
Limitation of responsibility of Existing Lenders

25.4.1
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:

(a)
the legality, validity, effectiveness, adequacy or enforceability of the Relevant Documents or any other documents;

(b)
the financial condition of any Obligor;

(c)
the performance and observance by any Obligor or any other member of the Group of its obligations under the Relevant Documents or any other documents; or

(d)
the accuracy of any statements (whether written or oral) made in or in connection with any of the Relevant Documents or any other document,
and any representations or warranties implied by law are excluded.

25.4.2
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:

(a)
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of each Obligor and each other member of the Group 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 of the Relevant Documents; and

(b)
will continue to make its own independent appraisal of the creditworthiness of each Obligor and each other member of the Group and its related entities while any amount is or may be outstanding under the Finance Documents or any Commitment is in force.

25.4.3
Nothing in any Finance Document obliges an Existing Lender to:

(a)
accept a re-transfer or re-assignment from a New Lender of any of the rights and obligations assigned or transferred under this Clause 25; or

(b)
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 Relevant Documents or otherwise.
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25.5
Procedure for transfer

25.5.1
Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) a transfer is effected in accordance with Clause 25.5.3 when the Agent executes an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender.  The Agent shall, subject to Clause 25.2.3(b), as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate.

25.5.2
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.

25.5.3
Subject to Clause 25.9 (Pro rata interest settlement), on the Transfer Date:

(a)
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 Borrower and each Guarantor and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another shall be cancelled (being the "Discharged Rights and Obligations");

(b)
each Borrower and each Guarantor 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 Borrower and that Guarantor and the New Lender have assumed and/or acquired the same in place of that Borrower and that Guarantor and the Existing Lender;

(c)
the Agent, the Security Agent, 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 Agent and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and

(d)
the New Lender shall become a Party as a "Lender".
25.6
Procedure for assignment

25.6.1
Subject to the conditions set out in Clause 25.2 (Conditions of assignment or transfer) an assignment may be effected in accordance with Clause 25.6.3 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 Clause 25.6.2, as soon as reasonably practicable
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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.

25.6.2
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.

25.6.3
Subject to Clause 25.9 (Pro rata interest settlement), on the Transfer Date:

(a)
the Existing Lender will assign absolutely to the New Lender its rights under the Finance Documents and in respect of any Encumbrance created or expressed to be created or evidenced by the Security Documents and expressed to be the subject of the assignment in the Assignment Agreement;

(b)
the Existing Lender will be released from the obligations (the "Relevant Obligations") expressed to be the subject of the release in the Assignment Agreement (and any corresponding obligations by which it is bound in respect of any Encumbrance created or expressed to be created or evidenced by the Security Documents); and

(c)
the New Lender shall become a Party as a "Lender" and will be bound by obligations equivalent to the Relevant Obligations.

25.6.4
Lenders may utilise procedures other than those set out in this Clause 25.6 to assign their rights under the Finance Documents (but not, without the consent of the relevant Obligor or unless in accordance with Clause 25.5 (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 25.2 (Conditions of assignment or transfer).
25.7
Copy of Transfer Certificate or Assignment Agreement to Borrowers   The Agent shall, as soon as reasonably practicable after it has executed a Transfer Certificate or an Assignment Agreement, send to the Borrowers a copy of that Transfer Certificate or Assignment Agreement.
25.8
Security over Lenders' rights   In addition to the other rights provided to Lenders under this Clause 25, each Lender may without consulting with or obtaining consent from any Obligor, at any time charge, assign or otherwise create Encumbrances 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:

25.8.1
any charge, assignment or other Encumbrance to secure obligations to a federal reserve or central bank; and
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25.8.2
any charge, assignment or other Encumbrance granted to any holders (or trustee or representatives of holders) of obligations owed, or securities issued, by that Lender as security for those obligations or securities,
except that no such charge, assignment or Encumbrance shall:

(a)
release a Lender from any of its obligations under the Finance Documents or substitute the beneficiary of the relevant charge, assignment or Encumbrance for the Lender as a party to any of the Finance Documents; or

(b)
require any payments to be made by an Obligor other than or in excess of, 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.
25.9
Pro rata interest settlement

25.9.1
If the Agent has notified the Lenders that it is able to distribute interest payments on a "pro rata basis" to Existing Lenders and New Lenders then (in respect of any transfer pursuant to Clause 25.5 (Procedure for transfer) or any assignment pursuant to Clause 25.6 (Procedure for assignment) the Transfer Date of which, in each case, is after the date of such notification and is not on the last day of an Interest Period):

(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 last day of the current Interest Period (or, if the Interest Period is longer than six Months, on the next of the dates which falls at intervals of six Months after the first day of that Interest Period); 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, those Accrued Amounts will be payable for the account of 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 25.9, have been payable to it on that date, but after deduction of the Accrued Amounts.

25.9.2
In this Clause 25.9 references to "Interest Period" shall be construed to include a reference to any other period for accrual of fees.

25.9.3
An Existing Lender which retains the right to the Accrued Amounts pursuant to this Clause 25.9 but which does not have a Commitment shall be deemed
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not to be a Lender for the purposes of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents.
26
Changes to the Obligors
26.1
No assignment or transfer by Obligors   No Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
26.2
Additional Guarantors

26.2.1
Subject to compliance with the provisions of Clauses 21.6 ("Know your customer" checks), the Borrowers may request that any member of the Group become a Guarantor.

26.2.2
A member of the Group shall become an Additional Guarantor if:

(a)
the Borrowers and the proposed Additional Guarantor deliver to the Agent a duly completed and executed Accession Deed; and

(b)
the Agent has received all of the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) and, if applicable, Part II of Schedule 2 (Conditions Subsequent) in relation to that Additional Guarantor, each in form and substance satisfactory to the Agent.

26.2.3
The Agent shall notify the Borrowers and the Lenders promptly upon being satisfied that it has received (in form and substance satisfactory to it) all the documents and other evidence listed in Part I of Schedule 2 (Conditions Precedent) and, if applicable, Part II of Schedule 2 (Conditions Subsequent).

26.2.4
Other than to the extent that the Majority Lenders notify the Agent in writing to the contrary before the Agent gives the notification described in Clause 26.2.3, the Lenders authorise (but do not require) the Agent to give that notification.  The Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.
26.3
Resignation of a Guarantor

26.3.1
The Borrowers may request that a Guarantor ceases to be a Guarantor by delivering to the Agent a Resignation Letter if all the Lenders have consented to the resignation of that Guarantor.

26.3.2
The Agent shall accept a Resignation Letter and notify the Borrowers and the Lenders of its acceptance if:

(a)
the Borrowers have confirmed that no Default is continuing or would result from the acceptance of the Resignation Letter; and

(b)
no payment is due from any Guarantor under Clause 19.1 (Guarantee and Indemnity).
26.4
Repetition of Representations
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Delivery of an Accession Deed constitutes confirmation by the relevant member of the Group that the Repeating Representations are true and correct in relation to it as at the date of delivery as if made by reference to the facts and circumstances then existing.
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Section 10
The Finance Parties
27
Role of the Agent, the Security Agent
27.1
Appointment of the Agent

27.1.1
Each of the Lenders appoints the Agent to act as its agent under and in connection with the Finance Documents and each of the Lenders and the Agent appoints the Security Agent to act as its security agent for the purpose of the Security Documents.

27.1.2
Each of the Lenders authorises the Agent and each of the Lenders and the Agent authorises the Security Agent to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to the Agent or the Security Agent (as the case may be) under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.

27.1.3
The Swap Provider appoints the Security Agent to act as its security agent for the purpose of the Security Documents and authorises the Security Agent to exercise the rights, powers, authorities and discretions specifically given to the Security Agent under or in connection with the Security Documents together with any other incidental rights, powers, authorities and discretions.

27.1.4
Except in Clause 27.13 (Replacement of the Agent) or where the context otherwise requires, references in this Clause 27 to the "Agent" shall mean the Agent and the Security Agent individually and collectively and references in this Clause 27 to the "Finance Documents" or to any "Finance Document" shall not include the Master Agreement.
27.2
Instructions

27.2.1
The Agent shall:

(a)
unless a contrary indication appears in a Finance Document, exercise or refrain from exercising any right, power, authority or discretion vested in it as Agent in accordance with any instructions given to it by:

(i)
all Lenders if the relevant Finance Document stipulates the matter is an all Lender decision; and

(ii)
in all other cases, the Majority Lenders; and

(b)
not be liable for any act (or omission) if it acts (or refrains from acting) in accordance with Clause 27.2.1(a).

27.2.2
The Agent shall be entitled to request instructions, or clarification of any instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or
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discretion and the Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.

27.2.3
Save in the case of decisions stipulated to be a matter for any other Lender or group of Lenders under the relevant Finance Document and unless a contrary indication appears in a Finance Document, any instructions given to the Agent by the Majority Lenders shall override any conflicting instructions given by any other Parties and will be binding on all Finance Parties.

27.2.4
The Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Finance Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.

27.2.5
In the absence of instructions, the Agent may act (or refrain from acting) as it considers to be in the best interest of the Lenders.

27.2.6
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.  This Clause 27.2.6 shall not apply to any legal or arbitration proceeding relating to the perfection, preservation or protection of rights under the Finance Documents or the enforcement of the Finance Documents.
27.3
Duties of the Agent

27.3.1
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature.

27.3.2
Subject to Clause 27.3.3, 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.

27.3.3
Without prejudice to Clause 25.7 (Copy of Transfer Certificate or Assignment Agreement to Borrowers), Clause 27.3.1 shall not apply to any Transfer Certificate or any Assignment Agreement.

27.3.4
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.

27.3.5
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 Finance Parties.

27.3.6
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 or the Security Agent) under this Agreement it shall promptly notify the other Finance Parties.
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27.3.7
The Agent shall have only those duties, obligations and responsibilities expressly specified in the Finance Documents to which it is expressed to be a party (and no others shall be implied).
27.4
No fiduciary duties

27.4.1
Subject to Clause 27.11 (Trust) which relates to the Security Agent only, nothing in any Finance Document constitutes the Agent as a trustee or fiduciary of any other person.

27.4.2
Neither the Agent shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
27.5
Business with Obligors and the Group   The Agent may accept deposits from, lend money to and generally engage in any kind of banking or other business with any Borrower, any other Obligor or its Affiliate and any other member of the Group.
27.6
Rights and discretions of the Agent

27.6.1
The Agent may:

(a)
rely on any representation, communication, notice or document believed by it to be genuine, correct and appropriately authorised;

(b)
assume that:

(i)
any instructions received by it from the Majority Lenders, any Lenders or any group of Lenders are duly given in accordance with the terms of the Finance Documents; and

(ii)
unless it has received notice of revocation, that those instructions have not been revoked; and

(iii)
rely on a certificate from any person:

(A)
as to any matter of fact or circumstance which might reasonably be expected to be within the knowledge of that person; or

(B)
to the effect that such person approves of any particular dealing, transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of (A), may assume the truth and accuracy of that certificate.

27.6.2
The Agent may assume (unless it has received notice to the contrary in its capacity as agent for the Lenders or security agent for the Finance Parties (as the case may be)) that:

(a)
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 24.1 (Events of Default));
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(b)
any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised; and

(c)
any notice or request made by the Borrowers (other than the Utilisation Request) is made on behalf of and with the consent and knowledge of all the Obligors.

27.6.3
The Agent may engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts.

27.6.4
Without prejudice to the generality of Clause 27.6.3 or Clause 27.6.5, the Agent may at any time engage and pay for the services of any lawyers to act as independent counsel to the Agent (and so separate from any lawyers instructed by the Lenders) if the Agent in its reasonable opinion deems this to be desirable.

27.6.5
The Agent may rely on the advice or services of any lawyers, accountants, tax advisers, surveyors or other professional advisers or experts (whether obtained by the Agent or by any other Party) and shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of its so relying.

27.6.6
The Agent may act in relation to the Finance Documents through its officers, employees and agents and the Agent shall not:

(a)
be liable for any error of judgment made by any such person; or

(b)
be bound to supervise, or be in any way responsible for any loss incurred by reason of misconduct, omission or default on the part, of any such person,
unless such error or such loss was directly caused by the Agent's gross negligence or wilful misconduct.

27.6.7
Unless a Finance Document expressly provides otherwise the Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.

27.6.8
Without prejudice to the generality of Clause 27.6.7, the Agent:

(a)
may disclose; and

(b)
on the written request of the Borrowers or the Majority Lenders shall, as soon as reasonably practicable, disclose,
the identity of a Defaulting Lender to the Borrowers and to the other Finance Parties.

27.6.9
Notwithstanding any other provision of any Finance Document to the contrary, neither the Agent is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
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27.6.10
The Agent is not obliged to disclose to any Finance Party any details of the rate notified to the Agent by any Lender or the identity of any such Lender for the purpose of Clause 10.2 (Market Disruption).

27.6.11
Notwithstanding any provision of any Finance Document to the contrary, the Agent is not obliged to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties, obligations or responsibilities or the exercise of any right, power, authority or discretion if it has grounds for believing the repayment of such funds or adequate indemnity against, or security for, such risk or liability is not reasonably assured to it.
27.7
Responsibility for documentation   The Agent is not responsible or liable for:

27.7.1
the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Agent, an Obligor or any other person given in or in connection with any Relevant Document or the transactions contemplated in the Finance Documents;

27.7.2
the legality, validity, effectiveness, adequacy or enforceability of any Relevant Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Relevant Document; or

27.7.3
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.
27.8
No duty to monitor   The Agent shall not be bound to enquire:

27.8.1
whether or not any Default has occurred;

27.8.2
as to the performance, default or any breach by any Party of its obligations under any Finance Document; or

27.8.3
whether any other event specified in any Finance Document has occurred.
27.9
Exclusion of liability

27.9.1
Without limiting Clause 27.9.2 (and without prejudice to any other provision of any Finance Document excluding or limiting the liability of the Agent) the Agent shall not be liable (including, without limitation, for negligence or any other category of liability whatsoever) for:

(a)
any damages, costs or losses to any person, any diminution in value, or any liability whatsoever arising as a result of taking or not taking any action under or in connection with any Finance Document or any Encumbrance created or expressed to be created or evidenced by the Security Documents, unless directly caused by its gross negligence or wilful misconduct;
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(b)
exercising, or not exercising, any right, power, authority or discretion given to it by, or in connection with, any Finance Document, any Encumbrance created or expressed to be created or evidenced by the Security Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with, any Finance Document or any Encumbrance created or expressed to be created or evidenced by the Security Documents;

(c)
any shortfall which arises on the enforcement or realisation of the Trust Property; or

(d)
without prejudice to the generality of Clauses 27.9.1(a), 27.9.1(b) and 27.9.1(c), any damages, costs or losses to any person, any diminution in value or any liability whatsoever arising as a result of:

(i)
any act, event or circumstance not reasonably within its control; or

(ii)
the general risks of investment in, or the holding of assets in, any jurisdiction,
including (in each case and without limitation) such damages, costs, losses, diminution in value or liability arising as a result of: nationalisation, expropriation or other governmental actions; any regulation, currency restriction, devaluation or fluctuation; market conditions affecting the execution or settlement of transactions or the value of assets (including any Disruption Event); breakdown, failure or malfunction of any third party transport, telecommunications, computer services or systems; natural disasters or acts of God; war, terrorism, insurrection or revolution; or strikes or industrial action.

27.9.2
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Relevant Document and any officer, employee or agent of the Agent may rely on this Clause subject to Clause 1.6 (Third Party Rights) and the provisions of the Third Parties Act.

27.9.3
The Agent will not be liable for any delay (or any related consequences) in crediting an account with an amount required under the Finance Documents to be paid by the Agent if the Agent 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 the Agent for that purpose.

27.9.4
Nothing in this Agreement shall oblige the Agent to carry out:

(a)
any "know your customer" or other checks in relation to any person;
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(b)
any check on the extent to which any transaction contemplated by this Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
on behalf of any Lender and each Lender confirms to the Agent 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.

27.9.5
Without prejudice to any provision of any Finance Document excluding or limiting the Agent's liability, any liability of the Agent arising under or in connection with any Finance Document or any Encumbrance created or expressed to be created or evidenced by the Security Documents shall be limited to the amount of actual loss which has been finally judicially determined to have been suffered (as determined by reference to the date of default of the Agent or, if later, the date on which the loss arises as a result of such default) but without reference to any special conditions or circumstances known to the Agent at any time which increase the amount of that loss.  In no event shall the Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special, punitive, indirect or consequential damages, whether or not the Agent has been advised of the possibility of such loss or damages.
27.10
Lenders' indemnity to the Agent

27.10.1
Each Lender shall (in proportion to its share of the Total Commitments or, if the Total Commitments are then zero, to its share of the Total Commitments immediately prior to their reduction to zero) indemnify the Agent and every Receiver and Delegate, within three Business Days of demand, against any cost, loss or liability (including, without limitation, for negligence or any other category of liability whatsoever) incurred by any of them (otherwise than by reason of the relevant Agent's, Receiver's or Delegate's gross negligence or wilful misconduct) (or, in the case of any cost, loss or liability pursuant to Clause 32.11 (Disruption to payment systems etc.) notwithstanding the Agent's negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) in acting as Agent, Receiver or Delegate under, or exercising any authority conferred under, the Finance Documents (unless the relevant Agent, Receiver or Delegate has been reimbursed by an Obligor pursuant to a Finance Document).

27.10.2
Subject to Clause 27.10.3, the Borrowers shall immediately on demand reimburse any Lender for any payment that Lender makes to the Agent pursuant to Clause 27.10.1

27.10.3
Clause 27.10.2 shall not apply to the extent that the indemnity payment in respect of which the Lender claims reimbursement relates to a liability of the Agent to an Obligor.
27.11
Trust   The Security Agent agrees and declares, and each of the other Finance Parties acknowledges, that, subject to the terms and conditions of this Clause 27.11, the Security Agent holds the Trust Property on trust for the Finance Parties
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absolutely.  Each of the other Finance Parties agrees that the obligations, rights and benefits vested in the Security Agent shall be performed and exercised in accordance with this Clause 27.11.  The Security Agent shall have the benefit of all of the provisions of this Agreement benefiting it in its capacity as security agent for the Finance Parties, and all the powers and discretions conferred on trustees by the Trustee Act 1925 (to the extent not inconsistent with this Agreement).  In addition:

27.11.1
the Security Agent and any Delegate may indemnify itself or himself out of the Trust Property against all liabilities, costs, fees, damages, charges, losses and expenses sustained or incurred by it or him in relation to the taking or holding of any of the Trust Property or in connection with the exercise or purported exercise of the rights, trusts, powers and discretions vested in the Security Agent or any Delegate by or pursuant to the Security Documents or in respect of anything else done or omitted to be done in any way relating to the Security Documents;

27.11.2
the other Finance Parties acknowledge that the Security Agent shall be under no obligation to insure any property nor to require any other person to insure any property and shall not be responsible for any loss which may be suffered by any person as a result of the lack or insufficiency of any insurance;

27.11.3
the Finance Parties agree that the perpetuity period applicable to the trusts declared by this Agreement shall be the period of 125 years from the date of this Agreement;

27.11.4
the Security Agent shall not be liable for any failure, omission, or defect in perfecting the security constituted or created by any Finance Document including, without limitation, any failure to register the same in accordance with the provisions of any of the documents of title of any Obligor to any of the assets thereby charged or effect or procure registration of or otherwise protect the security created by any Security Document under any registration laws in any jurisdiction and may accept without enquiry such title as any Obligor may have to any asset;

27.11.5
the Security Agent shall not be under any obligation to hold any title deed, Finance Document or any other documents in connection with the Finance Documents or any other documents in connection with the property charged by any Finance Document or any other such security in its own possession or to take any steps to protect or preserve the same, and may permit any Obligor to retain all such title deeds, Finance Documents and other documents in its possession; and

27.11.6
save as otherwise provided in the Finance Documents, all moneys which under the trusts therein contained are received by the Security Agent may be placed on deposit in the name of or under the control of the Security Agent at such bank or institution (including the Security Agent) and upon such terms as the Security Agent may think fit pending application of those moneys in accordance with Clause 29 (Application of Proceeds).
The provisions of Part I of the Trustee Act 2000 shall not apply to the Security Agent or the Trust Property.
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27.12
Resignation of the Agent

27.12.1
The Agent may resign and appoint one of its Affiliates acting through an office as successor by giving notice to the other Finance Parties and the Borrowers.

27.12.2
Alternatively the Agent may resign by giving 30 days' notice to the other Finance Parties and the Borrowers, in which case the Majority Lenders (after consultation with the Borrowers) may appoint a successor Agent.

27.12.3
If the Majority Lenders have not appointed a successor Agent in accordance with Clause 27.12.2 within 20 days after notice of resignation was given, the retiring Agent (after consultation with the Borrowers) may appoint a successor Agent.

27.12.4
If the Agent wishes to resign because (acting reasonably) it has concluded that it is no longer appropriate for it to remain as agent and the Agent is entitled to appoint a successor Agent under Clause 27.12.3, the Agent may (if it concludes (acting reasonably) that it is necessary to do so in order to persuade the proposed successor Agent to become a party to this Agreement as Agent) agree with the proposed successor Agent amendments to this Clause 27 and any other term of this Agreement dealing with the rights or obligations of the Agent consistent with then current market practice for the appointment and protection of corporate trustees together with any reasonable amendments to the agency fee payable under this Agreement which are consistent with the successor Agent's normal fee rates and those amendments will bind the Parties.

27.12.5
The retiring Agent shall, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.  The Borrowers shall, within three Business Days of demand, reimburse the retiring Agent for the amount of all costs and expenses (including legal fees) properly incurred by it in making available such documents and records and providing such assistance.

27.12.6
The Agent's resignation notice shall only take effect upon the appointment of a successor and (in the case of the Security Agent) the transfer of all the Trust Property to that successor.

27.12.7
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under Clause 27.12.5) but shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Agent) and this Clause 27 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).  Any successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.

27.12.8
The Agent shall resign in accordance with Clause 27.12.2 (and, to the extent applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to Clause 27.12.3) if on or after the date which is three months
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before the earliest FATCA Application Date relating to any payment to the Agent under the Finance Documents, either:

(a)
the Agent fails to respond to a request under Clause 12.8 (FATCA information) and a Borrower or a Lender reasonably believes that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;

(b)
the information supplied by the Agent pursuant to Clause 12.8 (FATCA information) indicates that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date; or

(c)
the Agent notifies the Borrowers and the Lenders that the Agent will not be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA Application Date;
and (in each case) a Borrower or a Lender reasonably believes that a Party will be required to make a FATCA Deduction that would not be required if the Agent were a FATCA Exempt Party, and that Borrower or that Lender, by notice to the Agent, requires it to resign.
27.13
Replacement of the Agent

27.13.1
After consultation with the Borrowers, the Majority Lenders may, by giving 30 days' notice to the Agent replace the Agent by appointing a successor Agent.

27.13.2
The retiring Agent shall (at the expense of the Lenders) make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its function as Agent under the Finance Documents.

27.13.3
The appointment of the successor Agent shall take effect on the date specified in the notice from the Majority Lenders to the retiring Agent.  As from this date, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents (other than its obligations under Clause 27.13.2 but shall remain entitled to the benefit of Clause 14.3 (Indemnity to the Agent) and this Clause 27 (and any agency fees for the account of the retiring Agent shall cease to accrue from (and shall be payable on) that date).

27.13.4
Any successor Agent 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.
27.14
Confidentiality

27.14.1
In acting as agent for the Finance Parties, the Agent 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.
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27.14.2
If information is received by another division or department of the Agent, it may be treated as confidential to that division or department and the Agent shall not be deemed to have notice of it.
27.15
Relationship with the Lenders

27.15.1
Subject to Clause 25.9 (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:

(a)
entitled to or liable for any payment due under any Finance Document on that day; and

(b)
entitled to receive and act upon any notice, request, document or communication or make any decision or determination under any Finance Document made or delivered on that day,
unless it has received not less than five Business Days' prior notice from that Lender to the contrary in accordance with the terms of this Agreement.

27.15.2
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 dispatched 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 34.5 (Electronic communication)) electronic mail address and/or any other information required to enable the transmission 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 a notification of a substitute address, fax number, electronic mail address, department and officer by that Lender for the purposes of Clause 34.2 (Addresses) and Clause 34.5 (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.
27.16
Credit appraisal by the Lenders   Without affecting the responsibility of any Obligor for information supplied by it or on its behalf in connection with any Relevant Document, each Lender confirms to the Agent that it has been, and will continue to be, solely responsible for making its own independent appraisal and investigation of all risks arising under or in connection with any Relevant Document including but not limited to:

27.16.1
the financial condition, status and nature of each Obligor and each other member of the Group;

27.16.2
the legality, validity, effectiveness, adequacy or enforceability of any Relevant Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Relevant Document;
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27.16.3
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 Relevant Document, the transactions contemplated by the Relevant Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of under or in connection with any Relevant Document; and

27.16.4
the right or title of any person in or to, or the value or sufficiency of any part of the Charged Property, the priority of any Encumbrance created or expressed to be created or evidenced by the Security Documents or the existence of any Encumbrance affecting the Charged Property.
27.17
Reference Banks   If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an Affiliate) ceases to be a Lender, the Agent shall (in consultation with the Borrowers) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.
27.18
Agent's management time  Any amount payable to the Agent under Clause 14.3 (Indemnity to the Agent), Clause 14.4 (Indemnity to the Security Agent), Clause 16 (Costs and expenses) and Clause 27.10 (Lenders' indemnity to the Agent) shall include the cost of utilising the Agent's management time or other resources and will be calculated on the basis of such reasonable daily or hourly rates as the Agent may notify to the Borrowers and the Lenders, and is in addition to any fee paid or payable to the Agent under Clause 11 (Fees).
27.19
Deduction from amounts payable by the Agent   If any Party owes an amount to the Agent under the Finance Documents the Agent may, after giving notice to that Party, deduct an amount not exceeding that amount from any payment to that Party which the Agent would otherwise be obliged to make under the Finance Documents and apply the amount deducted in or towards satisfaction of the amount owed.  For the purposes of the Finance Documents that Party shall be regarded as having received any amount so deducted.
27.20
Period without role for Agent

(a)
In this Clause 27.20, a "Non-Agent Period" means the period in which the Agent has no role pursuant to paragraph 27.20(b) below.

(b)
The Agent shall not have a role under this Agreement, other than entering into the Finance Documents in its capacity as Agent, and the other provisions of this Clause 27.20 shall not apply to the extent that they relate to the Agent until one of the following conditions is satisfied:

(i)
the Agent receives notice from the relevant Lender (with a copy to the Borrower) that the Lenders are not only the Original Lenders; or

(ii)
the Agent receives notice from the Original Guarantor (with a copy to the Original Lenders) requesting the Agent to commence acting in its role as agent.
The Agent shall commence acting in its role as agent at the date of receipt of the relevant notice.
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(c)
During a Non-Agent Period:

(i)
subject to paragraph 27.20 (c) (iii) below, all references to "the Agent" (other than in this Clause 27.20) and all references to "the Agent", or "a Party" in any Finance Document shall, where it relates to the Agent, be construed as references to "the Original Lenders";

(ii)
all payments which are expressed to be made to, received by or made available to or by the Agent (as applicable), must be made to, received by or made available to or by the Original Lenders;

(iii)
the reference to the "Agent" in

(A)
Clause 27.7 (Responsibility for documentation) to and including Clause 27.9 (Exclusion of liability);

(B)
Clause 14 (Other indemnities); and

(C)
Clause 16 (Costs and Expenses),
must at all times be construed to include the Original Lenders in respect of actions taken during the Non-Agent Period pursuant to paragraph 27.20 (c) (i) above.

(d)
Until the date the Agent commences acting in its role as agent, no agency fee or other fees will be payable to the Agent.

(e)
ABN AMRO Bank N.V. will be under no obligation to commence acting in its role as agent under this Agreement prior to having agreed with the Original Guarantor the agency fees payable to it in its capacity as Agent.

(f)
Upon the Agent commencing to act as Agent pursuant to clause 27.20 (b), the Security Agent shall carry out its role through its separate and independent division at Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands, PAC HQ9037.

(g)
Following the change of office referred to in clause 27.20 (f), the Borrowers shall, upon the request of the Security Agent, enter into and execute such documentation as the Security Agent may request in writing in order to reflect the change of office and to preserve the rights of the Security Agent under, and security provided by, each of the Finance Documents pursuant thereto.
28
Parallel Debt (Covenant to pay the Security Agent)
28.1
Notwithstanding any other provision of this Agreement, each Obligor hereby irrevocably and unconditionally undertakes to pay to the Security Agent (such undertakings together, the "Parallel Debt"), as creditor in its own right and not as representative of the other Finance Parties, sums equal to and in the currency of each amount payable by such Obligor to Finance Parties under each of the Finance Documents as and when that amount falls due for payment under the relevant Finance Document or would have fallen due but for any discharge resulting from
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failure of another Finance Party to take appropriate steps, in insolvency proceedings affecting that Obligor, to preserve its entitlement to be paid that amount.
28.2
The Security Agent shall have its own independent right to demand payment of the amounts payable by each Obligor under the Parallel Debt, irrespective of any discharge of such Obligor’s obligation to pay those amounts to the other Finance Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting that Obligor, to preserve their entitlement to be paid those amounts.
28.3
Any amount due and payable by a Obligor under the Parallel Debt shall be decreased to the extent that the other Finance Parties have received (and are able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and any amount due and payable by an Obligor to the other Finance Parties under those provisions shall be decreased to the extent that the Security Agent has received (and is able to retain) payment in full of the corresponding amount under the Parallel Debt.
28.4
The rights of the Finance Parties (other than the Security Agent) to receive payment of amounts payable by each Obligor under the Finance Documents are several and are separate and independent from, and without prejudice to, the rights of the Security Agent to receive payment under this Clause 28 (Parallel Debt (Covenant to pay the Security Agent)).
29
Application of Proceeds
29.1
Order of application   Subject to Clause 29.2 (Prospective liabilities), all amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Finance Document or in connection with the realisation or enforcement of all or any Encumbrance created or expressed to be created under the Security Documents (for the purposes of this Clause 29, the "Recoveries") shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 29), in the following order:

29.1.1
in discharging any sums owing to the Security Agent, any Receiver or any Delegate;

29.1.2
in payment of all costs and expenses incurred by the Agent or any Secured Party in connection with any realisation or enforcement of any Encumbrance created or expressed to be created under the Security Documents taken in accordance with the terms of this Agreement; and

29.1.3
in payment to the Agent for application in accordance with Clause 32.5 (Partial payments).
29.2
Prospective liabilities   Following enforcement of any Encumbrance created or expressed to be created under the Security Documents the Security Agent may, in its discretion, hold any amount of the Recoveries in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the
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interest being credited to the relevant account) for later application under Clause 29.1 (Order of application) in respect of:

29.2.1
any sum to the Security Agent, any Receiver or any Delegate; and

29.2.2
any part of the Indebtedness,
that the Security Agent reasonably considers, in each case, might become due or owing at any time in the future.
29.3
Investment of proceeds   Prior to the application of the proceeds of the Recoveries in accordance with Clause 29.1 (Order of application) the Security Agent may, in its discretion, hold all or part of those proceeds in an interest bearing suspense or impersonal account(s) in the name of the Security Agent with such financial institution (including itself) and for so long as the Security Agent shall think fit (the interest being credited to the relevant account) pending the application from time to time of those moneys in the Security Agent's discretion in accordance with the provisions of this Clause 29.
29.4
Currency conversion

29.4.1
For the purpose of, or pending the discharge of, any part of the Indebtedness the Security Agent may convert any moneys received or recovered by the Security Agent from one currency to another, at a market rate of exchange.

29.4.2
The obligations of any Obligor to pay in the due currency shall only be satisfied to the extent of the amount of the due currency purchased after deducting the costs of conversion.
29.5
Permitted deductions   The Security Agent shall be entitled, in its discretion:

29.5.1
to set aside by way of reserve amounts required to meet, and to make and pay, any deductions and withholdings (on account of taxes or otherwise) which it is or may be required by any applicable law to make from any distribution or payment made by it under this Agreement; and

29.5.2
to pay all Taxes which may be assessed against it in respect of any of the Trust Property, or as a consequence of performing its duties, or by virtue of its capacity as Security Agent under any of the Finance Documents or otherwise (other than in connection with its remuneration for performing its duties under this Agreement).
29.6
Good discharge

29.6.1
Any payment to be made in respect of the Indebtedness by the Security Agent may be made to the Agent on behalf of the Finance Parties and any payment made in that way shall be a good discharge, to the extent of that payment, by the Security Agent.

29.6.2
The Security Agent is under no obligation to make the payments to the Agent under Clause 29.6.1 in the same currency as that in which the
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obligations and liabilities owing to the relevant Finance Party are denominated.
30
Conduct of Business by the Finance Parties
No provision of this Agreement will:
30.1
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
30.2
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
30.3
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
31
Sharing among the Finance Parties
31.1
Payments to Finance Parties   If a Finance Party (a "Recovering Finance Party") receives or recovers any amount from an Obligor other than in accordance with Clause 32 (Payment Mechanics) (a "Recovered Amount") and applies that amount to a payment due under the Finance Documents then:

31.1.1
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;

31.1.2
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 32 (Payment Mechanics), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and

31.1.3
the Recovering Finance Party shall, within three 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 32.5 (Partial payments).
31.2
Redistribution of payments   The Agent shall treat the Sharing Payment as if it had been paid by the relevant Obligor and distribute it between the Finance Parties (other than the Recovering Finance Party) (the "Sharing Finance Parties") in accordance with Clause 32.5 (Partial payments) towards the obligations of that Obligor to the Sharing Finance Parties.
31.3
Recovering Finance Party's rights   On a distribution by the Agent under Clause 31.2 (Redistribution of payments) of a payment received by a Recovering Finance Party from an Obligor, as between the relevant Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to the Sharing Payment will be treated as not having been paid by that Obligor.
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31.4
Reversal of redistribution   If any part of the Sharing Payment received or recovered by a Recovering Finance Party becomes repayable and is repaid by that Recovering Finance Party, then:

31.4.1
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

31.4.2
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.
31.5
Exceptions

31.5.1
This Clause 31 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.

31.5.2
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:

(a)
it notified that other Finance Party of the legal or arbitration proceedings; and

(b)
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
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Section 11
Administration
32
Payment Mechanics
32.1
Payments to the Agent   On each date on which an Obligor or a Lender is required to make a payment under a Finance Document (other than the Master Agreement), that Obligor or that 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.
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.
32.2
Distributions by the Agent   Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 32.3 (Distributions to an Obligor) and Clause 32.4 (Clawback and pre-funding) be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank specified by that Party in the principal financial centre of the country of that currency.
32.3
Distributions to an Obligor   The Agent may (with the consent of an Obligor or in accordance with Clause 33 (Set-Off)) apply any amount received by it for that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from that Obligor under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
32.4
Clawback and pre-funding

32.4.1
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.

32.4.2
Unless Clause 32.4.3 applies, 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.

32.4.3
If the Agent is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that the Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:

(a)
the Borrower to whom that sum was made available shall on demand refund it to the Agent; and
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(b)
the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to the Agent the amount (as certified by the Agent) which will indemnify the Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.
32.5
Partial payments

32.5.1
If the Agent or the Security Agent (as applicable) receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents (other than the Master Agreement), the Agent or the Security Agent (as applicable) shall apply that payment towards the obligations of that Obligor under the Finance Documents (other than the Master Agreement) in the following order:

(a)
in or towards payment pro rata of any unpaid fees, costs and expenses of the Agent, the Security Agent, any Receiver or any Delegate under the Finance Documents;

(b)
in or towards payment pro rata of any accrued interest, fee or commission due but unpaid under this Agreement;

(c)
in or towards payment pro rata of any principal due but unpaid under this Agreement; and

(d)
in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
provided that any part of the Indebtedness arising out of the Master Agreement shall be satisfied on a pari passu basis with any repayment of the principal of the Loan.

32.5.2
The Agent shall, if so directed by the Majority Lenders and the Swap Provider, vary the order set out in Clauses 32.5.1(b) to 32.5.1(d).

32.5.3
Clauses 32.5.1 and 32.5.2 will override any appropriation made by an Obligor.
32.6
No set-off by Obligors   All payments to be made by an Obligor under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
32.7
Business Days   Any payment under the Finance Documents 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).
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
32.8
Currency of account
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32.8.1
Subject to Clauses 32.8.2 to 32.8.5, dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.

32.8.2
A repayment or payment of all or part of the Loan or an Unpaid Sum shall be made in the currency in which the Loan or Unpaid Sum is denominated, pursuant to this Agreement, on its due date.

32.8.3
Each payment of interest shall be made in the currency in which the sum in respect of which the interest is payable was denominated, pursuant to this Agreement, when that interest accrued.

32.8.4
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.

32.8.5
Any amount expressed to be payable in a currency other than dollars shall be paid in that other currency.
32.9
Control account   The Agent shall open and maintain on its books a control account in the names of the Borrowers showing the advance of the Loan and the computation and payment of interest and all other sums due under this Agreement.  The Borrowers' obligations to repay the Loan and to pay interest and all other sums due under this Agreement shall be evidenced by the entries from time to time made in the control account opened and maintained under this Clause 32.9 and those entries will, in the absence of manifest error, be conclusive and binding.
32.10
Change of currency

32.10.1
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:

(a)
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 Borrowers); and

(b)
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).

32.10.2
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 Borrowers) specifies to be necessary, be amended to comply with any generally accepted conventions and market practice in the Relevant Market and otherwise to reflect the change in currency.
32.11
Disruption to payment systems etc.   If either the Agent determines that a Disruption Event has occurred or the Agent is notified by the Borrowers that a Disruption Event has occurred:
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32.11.1
the Agent may, and shall if requested to do so by the Borrowers, consult with the Borrowers with a view to agreeing with the Borrowers such changes to the operation or administration of the Loan as the Agent may deem necessary in the circumstances;

32.11.2
the Agent shall not be obliged to consult with the Borrowers in relation to any changes mentioned in Clause 32.11.1 if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to any such changes;

32.11.3
the Agent may consult with the Finance Parties in relation to any changes mentioned in Clause 32.11.1 but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

32.11.4
any such changes agreed upon by the Agent and the Borrowers shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause 38 (Amendments and Waivers);

32.11.5
the Agent shall not be liable for any damages, costs or losses to any person, any diminution in value or any liability whatsoever (including, without limitation, for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause 32.11; and

32.11.6
the Agent shall notify the Finance Parties of all changes agreed pursuant to Clause 32.11.4.
33
Set-Off
33.1
Set-off   A Finance Party may set off any matured obligation due from an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any matured obligation owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation.  If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
33.2
Master Agreement rights   The rights conferred on the Swap Provider by this Clause 33 shall be in addition to, and without prejudice to or limitation of, the rights of netting and set off conferred on the Swap Provider by the Master Agreement.
34
Notices
34.1
Communications in writing   Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, may be made by fax or letter.
34.2
Addresses   The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any
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communication or document to be made or delivered under or in connection with the Finance Documents is:

34.2.1
in the case of each Borrower, that identified with its name below;

34.2.2
in the case of each Guarantor, that identified with its name below;

34.2.3
in the case of the Lender, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and

34.2.4
in the case of the Swap Provider, that identified with its name below; and

34.2.5
in the case of the Agent or the Security Agent, that identified with its name below,
or any substitute address, fax number, or department or officer as the Party may notify to the Agent (or the Agent may notify to the other Parties, if a change is made by the Agent) by not less than five Business Days' notice.
34.3
Delivery   Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will only be effective:

34.3.1
if by way of fax, when received in legible form; or

34.3.2
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;
and, if a particular department or officer is specified as part of its address details provided under Clause 34.2 (Addresses), if addressed to that department or officer.
Any communication or document to be made or delivered to the Agent or the Security Agent will be effective only when actually received by the Agent or the Security Agent and then only if it is expressly marked for the attention of the department or officer identified with the Agent's or the Security Agent's signature below (or any substitute department or officer as the Agent or the Security Agent shall specify for this purpose).
All notices from or to an Obligor (save in respect of the Master Agreement) shall be sent through the Agent.
Any communication or document which becomes effective, in accordance with this Clause 34.3, after 5.00 p.m. in the place of receipt shall be deemed only to become effective on the following day.
34.4
Notification of address and fax number   Promptly upon changing its address or fax number, the Agent shall notify the other Parties.
34.5
Electronic communication

34.5.1
Any communication to be made between any two Parties under or in connection with the Finance Documents may be made by electronic mail or other electronic means (including, without limitation, by way of posting to a secure website) if those two Parties:
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(a)
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

(b)
notify each other of any change to their address or any other such information supplied by them by not less than five Business Days' notice.

34.5.2
Any such electronic communication to be made between an Obligor and a Finance Party may only be made in that way to the extent that those two Parties agree that, unless and until notified to the contrary, this is to be an accepted form of communication.

34.5.3
Any such electronic communication made between any two Parties will be effective only when actually received (or made available) in readable form and in the case of any electronic communication made by a Party to the Agent or the Security Agent only if it is addressed in such a manner as the Agent or the Security Agent shall specify for this purpose.

34.5.4
Any electronic communication which becomes effective, in accordance with Clause 34.5.3, after 5.00 p.m. in the place in which the Party to whom the relevant communication is sent or made available has its address for the purpose of this Agreement shall be deemed only to become effective on the following day.

34.5.5
Any reference in a Finance Document to a communication being sent or received shall be construed to include that communication being made available in accordance with this Clause 34.5.
34.6
Use of websites

34.6.1
Each Borrower may satisfy its obligations under this Agreement to deliver any information in relation to those Lenders (the "Website Lenders") who accept this method of communication by posting this information onto an electronic website designated by the Borrowers and the Agent (the "Designated Website") if:

(a)
the Agent expressly agrees (after consultation with each of the Lenders) that it will accept communication of the information by this method;

(b)
both the Borrowers and the Agent are aware of the address of and any relevant password specifications for the Designated Website; and

(c)
the information is in a format previously agreed between the Borrowers and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the delivery of information electronically then the Agent shall notify the Borrowers accordingly and each Borrower shall at its own cost supply the information to the Agent (in sufficient copies for each Paper Form Lender) in paper form.  In any event each Borrower shall at its own cost supply the Agent with at
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least one copy in paper form of any information required to be provided by it.

34.6.2
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 Borrowers and the Agent.

34.6.3
Each Borrower shall promptly upon becoming aware of its occurrence notify the Agent if:

(a)
the Designated Website cannot be accessed due to technical failure;

(b)
the password specifications for the Designated Website change;

(c)
any new information which is required to be provided under this Agreement is posted onto the Designated Website;

(d)
any existing information which has been provided under this Agreement and posted onto the Designated Website is amended; or

(e)
that 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.
If a Borrower notifies the Agent under Clause 34.6.3(a) or Clause 34.6.3(e), all information to be provided by a Borrower under this Agreement after the date of that notice shall be supplied in paper form unless and until the Agent and each Website Lender is satisfied that the circumstances giving rise to the notification are no longer continuing.

34.6.4
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.  Each Borrower shall at its own cost comply with any such request within ten Business Days.
34.7
English language   Any notice given under or in connection with any Finance Document must be in English.  All other documents provided under or in connection with any Finance Document must be:

34.7.1
in English; or

34.7.2
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.
35
Calculations and Certificates
35.1
Accounts   In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by the Agent pursuant to Clause 32.9 (Control account) are prima facie evidence of the matters to which they relate.
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35.2
Certificates and determinations   Any certification or determination by the Agent of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
35.3
Day count convention   Any interest, commission or fee accruing under a Finance Document will accrue from day to day and is calculated on the basis of the actual number of days elapsed and a year of 360 days or, in any case where the practice in the Relevant Market differs, in accordance with that market practice.
36
Partial Invalidity
If, at any time, any provision of a Finance Document is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
37
Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any Finance Party or Secured Party, any right or remedy under a Finance Document shall operate as a waiver of any such right or remedy or constitute an election to affirm any Finance Document.  No election to affirm any Finance Document on the part of any Finance Party or Secured Party shall be effective unless it is in writing.  No single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy.  The rights and remedies provided in each Finance Document are cumulative and not exclusive of any rights or remedies provided by law.
38
Amendments and Waivers
38.1
Required consents

38.1.1
Subject to Clause 38.2 (Exceptions) any term of the Finance Documents (other than the Master Agreement) may be amended or waived only with the consent of the Majority Lenders and the Borrowers and any such amendment or waiver will be binding on all Parties.

38.1.2
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 38.

38.1.3
Without prejudice to the generality of Clauses 27.6.3, 27.6.4 and 27.6.5 (Rights and discretions of the Agent), the Agent may engage, pay for and rely on the services of lawyers in determining the consent level required for and effecting any amendment, waiver or consent under this Agreement.

38.1.4
Clause 25.9.3 (Pro rata interest settlement) shall apply to this Clause 38.
38.2
Exceptions

38.2.1
Subject to Clause 38.3 (Replacement of Screen Rate), an amendment, waiver or (in the case of a Security Document) a consent of, or in relation
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to, any term of any Finance Document that has the effect of changing or which relates to:

(a)
the definition of "Majority Lenders" in Clause 1.1 (Definitions);

(b)
an extension to the date of payment of any amount under the Finance Documents;

(c)
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable;

(d)
an increase in any Commitment, an extension of the Availability Period or any requirement that a cancellation of Commitments reduces the Commitments of the Lenders rateably;

(e)
a change to a Borrower or a change to a Guarantor other than in accordance with Clause 26 (Changes to the Obligors);

(f)
any provision which expressly requires the consent of all the Lenders;

(g)
Clause 2.2 (Finance Parties' rights and obligations), Clause 5.1 (Delivery of a Utilisation Request), Clause 7.1 (Illegality), Clause 7.5 (Mandatory prepayment on sale or Total Loss), Clause 25 (Changes to the Lenders), Clause 26 (Changes to the Obligors), this Clause 38, Clause 43 (Governing Law) or Clause 44.1 (Jurisdiction of English courts);

(h)
(other than as expressly permitted by the provisions of any Finance Document) the nature or scope of:

(i)
any Guarantee;

(ii)
the Charged Property; or

(iii)
the manner in which the proceeds of enforcement of the Security Documents are distributed; or

(i)
the release of any Guarantee or of any Encumbrance created or expressed to be created or evidenced by the Security Documents unless permitted under this Agreement or any other Finance Document or relating to a sale or disposal of an asset which is the subject of any Encumbrance created or expressed to be created or evidenced by the Security Documents where such sale or disposal is expressly permitted under this Agreement or any other Finance Document;

(j)
Clause 23.27 (Sanctions) or anyone or more of the definitions of "Restricted Party", "Sanctions", "Sanctions Authority" and "Sanctions List";
shall not be made, or given, without the prior consent of all the Lenders.
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38.2.2
An amendment or waiver which relates to the rights or obligations of the Agent, the Security Agent may not be effected without the consent of the Agent or the Security Agent.
38.3
Replacement of Screen Rate

38.3.1
In this Clause 38.3:
"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee sponsored or chaired by, or constituted at the request of, any of them or the Financial Stability Board.
"Replacement Benchmark" means a benchmark rate which is:

(a)
formally designated, nominated or recommended as the replacement for a Screen Rate by:

(i)
the administrator of that Screen Rate (provided that the market or economic reality that such benchmark rate measures is the same as that measured by that Screen Rate); or

(ii)
any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated or recommended under both (i) and (ii), the "Replacement Benchmark" will be the replacement under (ii);

(b)
in the opinion of the Majority Lenders and the Borrowers, generally accepted in the international or any relevant domestic syndicated loan markets as the appropriate successor to that Screen Rate; or

(c)
in the opinion of the Majority Lenders and the Borrowers, an appropriate successor to a Screen Rate.
"Screen Rate Replacement Event" means, in relation to a Screen Rate:

(a)
the methodology, formula or other means of determining that Screen Rate has, in the opinion of the Majority Lenders, and the Borrower materially changed;
(b)
(i)

(A)
the administrator of that Screen Rate or its supervisor publicly announces that such administrator is insolvent; or

(B)
information is published in any order, decree, notice, petition or filing, however described, of or filed with a court, tribunal, exchange, regulatory authority or similar administrative, regulatory or judicial body which
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reasonably confirms that the administrator of that Screen Rate is insolvent,
provided that, in each case, at that time, there is no successor administrator to continue to provide that Screen Rate;

(ii)
the administrator of that Screen Rate publicly announces that it has ceased or will cease, to provide that Screen Rate permanently or indefinitely and, at that time, there is no successor administrator to continue to provide that Screen Rate;

(iii)
the supervisor of the administrator of that Screen Rate publicly announces that such Screen Rate has been or will be permanently or indefinitely discontinued; or

(iv)
the administrator of that Screen Rate or its supervisor announces that that Screen Rate may no longer be used; or

(c)
in the opinion of the Majority Lenders and the Borrower, that Screen Rate is otherwise no longer appropriate for the purposes of calculating interest under this Agreement.

38.3.2
Subject to Clause 38.2.2 (Exceptions), if a Screen Rate Replacement Event has occurred in relation to a Screen Rate for a currency which can be selected for a Loan any amendment or waiver which relates to:

(a)
providing for the use of a Replacement Benchmark; and

(i)
aligning any provision of any Finance Document to the use of that Replacement Benchmark;

(ii)
enabling that Replacement Benchmark to be used for the calculation of interest under this Agreement (including, without limitation, any consequential changes required to enable that Replacement Benchmark to be used for the purposes of this Agreement);

(iii)
implementing market conventions applicable to that Replacement Benchmark;

(iv)
providing for appropriate fallback (and market disruption) provisions for that Replacement Benchmark; or

(v)
adjusting the pricing to reduce or eliminate, to the extent reasonably practicable, any transfer of economic value from one Party to another as a result of the application of that Replacement Benchmark (and if any adjustment or method for calculating any adjustment has been formally designated, nominated or recommended by the Relevant Nominating Body, the adjustment shall be determined on the basis of that designation, nomination or recommendation),
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may be made with the consent of the Agent (acting on the instructions of the Majority Lenders) and the Borrowers.

(b)
If, as at 1 February 2022 this Agreement provides that the rate of interest for a Loan in dollars is to be determined by reference to the Screen Rate for LIBOR:
(i) a Screen Rate Replacement Event shall be deemed to have occurred on that date in relation to the Screen Rate for dollars; and
(ii) the Agent, (acting on the instructions of the Majority Lenders) and the Borrower shall enter into negotiations in good faith with a view to agreeing the use of a Replacement Benchmark in relation to dollars in place of that Screen Rate from and including a date no later than 1 April 2022.
38.4
Excluded Commitments
If:

38.4.1
any Defaulting Lender fails to respond to a request for a consent, waiver, amendment of or in relation to any term of any Finance Document or any other vote of Lenders under the terms of this Agreement within five Business Days of that request being made; or

38.4.2
any Lender which is not a Defaulting Lender fails to respond to such a request,
(unless, in either case, the Borrowers and the Agent agree to a longer time period in relation to any request):

(a)
its Commitment(s) shall not be included for the purpose of calculating the Total Commitments when ascertaining whether any relevant percentage (including, for the avoidance of doubt, unanimity) of Total Commitments has been obtained to approve that request; and

(b)
its status as a Lender shall be disregarded for the purpose of ascertaining whether the agreement of any specified group of Lenders has been obtained to approve that request.
38.5
Replacement of Lender

38.5.1
If:

(a)
any Lender becomes a Non-Consenting Lender (as defined in Clause 38.5.4); or

(b)
a Borrower or any other Obligor becomes obliged to repay any amount in accordance with Clause 7.1 (Illegality) or to pay additional amounts pursuant to Clause 12.2 (Tax gross-up), Clause 12.3 (Tax Indemnity) or Clause 13.1 (Increased costs) to any Lender,
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then the Borrowers may, on ten Business Days' prior written notice to the Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Borrowers (a "Replacement Lender"), which confirms its willingness to assume and does assume all the obligations of the transferring Lender in accordance with Clause 25 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Loan and all accrued interest (to the extent that the Agent has not given a notification under Clause 25.9 (Pro rata interest settlement)), Break Costs and other amounts payable in relation thereto under the Finance Documents.

38.5.2
The replacement of a Lender pursuant to this Clause 38.5 shall be subject to the following conditions:

(a)
the Borrowers shall have no right to replace the Agent or Security Agent;

(b)
neither the Agent nor the Lender shall have any obligation to the Borrowers to find a Replacement Lender;

(c)
in the event of a replacement of a Non-Consenting Lender such replacement must take place no later than 15 after the date on which that Lender is deemed a Non-Consenting Lender;

(d)
in no event shall the Lender replaced under this Clause 38.5 be required to pay or surrender to such Replacement Lender any of the fees received by such Lender pursuant to the Finance Documents; and

(e)
the Lender shall only be obliged to transfer its rights and obligations pursuant to Clause 38.5.1 once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer.

38.5.3
A Lender shall perform the checks described in Clause 38.5.2(e) as soon as reasonably practicable following delivery of a notice referred to in Clause 38.5.1 and shall notify the Agent and the Borrowers when it is satisfied that it has complied with those checks.

38.5.4
In the event that:

(a)
the Borrowers or the Agent (at the request of the Borrowers) have requested the Lenders to give a consent in relation to, or to agree to a waiver or amendment of, any provisions of the Finance Documents;
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(b)
the consent, waiver or amendment in question requires the approval of all the Lenders; and

(c)
Lenders whose Commitments aggregate more than 51 per cent of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 51 per cent of the Total Commitments prior to that reduction) have consented or agreed to such waiver or amendment,
then any Lender who does not and continues not to consent or agree to such waiver or amendment shall be deemed a "Non-Consenting Lender".
38.6
Disenfranchisement of Defaulting Lenders

38.6.1
For so long as a Defaulting Lender has any Commitment, in ascertaining:

(a)
the Majority Lenders; or

(b)
whether:

(i)
any given percentage (including, for the avoidance of doubt, unanimity) of the Total Commitments; or

(ii)
the agreement of any specified group of Lenders,
has been obtained to approve any request for a consent, waiver, amendment or other vote of Lenders under the Finance Documents, that Defaulting Lender's Commitment will be reduced by the amount of its participation in the Loan it has failed to make available and, to the extent that that reduction results in that Defaulting Lender's Commitment being zero, that Defaulting Lender shall be deemed not to be a Lender for the purposes of (i) and (ii).

38.6.2
For the purposes of this Clause 38.6, the Agent may assume that the following Lenders are Defaulting Lenders:

(a)
any Lender which has notified the Agent that it has become a Defaulting Lender;

(b)
any Lender in relation to which it is aware that any of the events or circumstances referred to in (a), (b) or (c) of the definition of "Defaulting Lender" has occurred,
unless it has received notice to the contrary from the Lender concerned (together with any supporting evidence reasonably requested by the Agent) or the Agent is otherwise aware that the Lender has ceased to be a Defaulting Lender.
38.7
Replacement of a Defaulting Lender

38.7.1
The Borrowers may, at any time a Lender has become and continues to be a Defaulting Lender, by giving ten Business Days' prior written notice to the Agent and such Lender, replace such Lender by requiring such Lender to (and, to the extent permitted by law, such Lender shall) transfer pursuant
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to Clause 25 (Changes to the Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity selected by the Borrowers (a "Replacement Lender") which confirms its willingness to assume and does assume all the obligations, or all the relevant obligations, of the transferring Lender in accordance with Clause 25 (Changes to the Lenders) for a purchase price in cash payable at the time of transfer which is either:

(a)
in an amount equal to the outstanding principal amount of such Lender's participation in the outstanding Loan and all accrued interest (to the extent that the Agent has not given a notification under Clause 25.9 (Pro rata interest settlement), Break Costs and other amounts payable in relation thereto under the Finance Documents; or

(b)
in an amount agreed between that Defaulting Lender, the Replacement Lender and the Borrowers and which does not exceed the amount described in (a).

38.7.2
Any transfer of rights and obligations of a Defaulting Lender pursuant to this Clause 37.8 shall be subject to the following conditions:

(a)
the Borrowers shall have no right to replace the Agent or Security Agent;

(b)
neither the Agent nor the Defaulting Lender shall have any obligation to the Borrowers to find a Replacement Lender;

(c)
the transfer must take place no later than 15 days after the notice referred to in Clause 38.7.1;

(d)
in no event shall the Defaulting Lender be required to pay or surrender to the Replacement Lender any of the fees received by the Defaulting Lender pursuant to the Finance Documents; and

(e)
the Defaulting Lender shall only be obliged to transfer its rights and obligations pursuant to 38.7.1 once it is satisfied that it has complied with all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to that transfer to the Replacement Lender.

38.7.3
The Defaulting Lender shall perform the checks described in Clause 38.7.2(e) as soon as reasonably practicable following delivery of a notice referred to in Clause 38.7.1 and shall notify the Agent and the Borrowers when it is satisfied that it has complied with those checks.
39
Confidentiality
39.1
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 39.2 (Disclosure of Confidential Information) and Clause 39.3 (Disclosure to numbering service providers), and to ensure that all Confidential
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Information is protected with security measures and a degree of care that would apply to its own confidential information.
39.2
Disclosure of Confidential Information   Any Finance Party may disclose:

39.2.1
to any of its Affiliates and Related Funds and any of its or their officers, directors, employees, professional advisers, auditors, partners, insurance and reinsurance providers 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 Clause 39.2.1 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;

39.2.2
to any person:

(a)
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 or which succeeds (or which may potentially succeed) it as Agent or Security Agent and, in each case, to any of that person's Affiliates, Related Funds, Representatives and professional advisers;

(b)
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;

(c)
appointed by any Finance Party or by a person to whom Clause 39.2.2(a) or 39.2.2(b) applies to receive communications, notices, information or documents delivered pursuant to the Finance Documents on its behalf (including, without limitation, any person appointed under Clause 27.15.2 (Relationship with the Lenders));

(d)
who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any transaction referred to in Clause 39.2.2(a) or 39.2.2(b);

(e)
to whom information is required or requested to be disclosed by any court of competent jurisdiction or any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation;
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(f)
to whom information is required to be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations, proceedings or disputes;

(g)
to whom or for whose benefit that Finance Party charges, assigns or otherwise creates Security (or may do so) pursuant to Clause 25.8 (Security over Lenders' rights);

(h)
who is a Party; or

(i)
with the consent of the Borrowers;
in each case, such Confidential Information as that Finance Party shall consider appropriate if:

(i)
in relation to Clauses 39.2.2(a), 39.2.2(b) and 39.2.2(c), 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;

(ii)
in relation to Clause 39.2.2(d), 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;

(iii)
in relation to Clauses 39.2.2(e), 39.2.2(f) and 39.2.2(g), 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;

39.2.3
to any person appointed by that Finance Party or by a person to whom Clause 39.2.2(a) or 39.2.2(b) 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 participations in respect of the Finance Documents, such Confidential Information as may be required to be disclosed to enable such service provider to provide any of the services referred to in this Clause 39.2.3 if the service provider to whom the Confidential Information is to be given has entered into a Confidentiality Undertaking;

39.2.4
to any rating agency (including its professional advisers) such Confidential Information as may be required to be disclosed to enable such rating agency
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 to carry out its normal rating activities in relation to the Finance Documents and/or the Obligors and/or the Group.
39.3
Disclosure to numbering service providers

39.3.1
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 Loan and/or one or more Obligors the following information:

(a)
names of Obligors;

(b)
country of domicile of Obligors;

(c)
place of incorporation of Obligors;

(d)
date of this Agreement;

(e)
Clause 43 (Governing law);

(f)
the names of the Agent;

(g)
date of each amendment and restatement of this Agreement;

(h)
amount of Total Commitments;

(i)
currencies of the Loan;

(j)
type of Loan;

(k)
ranking of the Loan;

(l)
Termination Date;

(m)
changes to any of the information previously supplied pursuant to (a) to (l); and

(n)
such other information agreed between such Finance Party and that Obligor,
to enable such numbering service provider to provide its usual syndicated loan numbering identification services.

39.3.2
The Parties acknowledge and agree that each identification number assigned to this Agreement, the Loan 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.

39.3.3
Each Borrower represents that none of the information set out in Clauses 39.3.1(a) to 39.3.1(n) is, nor will at any time be, unpublished price-sensitive information.

39.3.4
The Agent shall notify the Borrowers and the other Finance Parties of:
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(a)
the name of any numbering service provider appointed by the Agent in respect of this Agreement, the Loan and/or one or more Obligors; and

(b)
the number or, as the case may be, numbers assigned to this Agreement, the Loan and/or one or more Obligors by such numbering service provider.
39.4
Entire agreement   This Clause 39 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.
39.5
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.
39.6
Notification of disclosure   Each of the Finance Parties agrees (to the extent permitted by law and regulation) to inform the Borrowers:

39.6.1
of the circumstances of any disclosure of Confidential Information made pursuant to Clause 39.2.2(e) (Disclosure of Confidential Information) except where such disclosure is made to any of the persons referred to in that Clause during the ordinary course of its supervisory or regulatory function; and

39.6.2
upon becoming aware that Confidential Information has been disclosed in breach of this Clause 39.
39.7
Continuing obligations   The obligations in this Clause 39 are continuing and, in particular, shall survive and remain binding on each Finance Party for a period of 12 months from the earlier of:

39.7.1
the date on which all amounts payable by the Obligors under or in connection with the Finance Documents have been paid in full and all Commitments have been cancelled or otherwise cease to be available; and

39.7.2
the date on which such Finance Party otherwise ceases to be a Finance Party.
40
Disclosure of Lender Details by Agent
40.1
Supply of Lender details to Borrowers   The Agent shall provide to the Borrowers within seven Business Days of a request by the Borrowers (but no more frequently than once per calendar month) a list (which may be in electronic form) setting out the names of the Lenders as at that Business Day, their respective Commitments, the address and fax number (and the department or officer, if any, for whose attention any communication is to be made) of each Lender for any communication to be made or document to be delivered under or in connection with the Finance Documents, the electronic mail address and/or any other information required to enable the transmission of information by electronic mail or other electronic means to and by each Lender to whom any communication under or in connection with the Finance Documents may be made by that means
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and the account details of each Lender for any payment to be distributed by the Agent to that Lender under the Finance Documents.
40.2
Supply of Lender details at Borrowers' direction

40.2.1
The Agent shall, at the request of the Borrowers, disclose the identity of the Lenders and the details of the Lenders' Commitments to any:

(a)
other Party or any other person if that disclosure is made to facilitate, in each case, a refinancing of the Financial Indebtedness arising under the Finance Documents or a material waiver or amendment of any term of any Finance Document; and

(b)
Obligor.

40.2.2
Subject to Clause 40.2.3, the Borrowers shall procure that the recipient of information disclosed pursuant to Clause 40.2.1 shall keep such information confidential and shall not disclose it to anyone and shall ensure that all such information is protected with security measures and a degree of care that would apply to the recipient's own confidential information.

40.2.3
The recipient may disclose such information to any of its officers, directors, employees, professional advisers, auditors and partners as it shall consider appropriate if any such person is informed in writing of its confidential nature, except that there shall be no such requirement to so inform if that person is subject to professional obligations to maintain the confidentiality of the information or is otherwise bound by duties of confidentiality in relation to the information.
40.3
Supply of Lender details to other Lenders

40.3.1
If a Lender (a "Disclosing Lender") indicates to the Agent that the Agent may do so, the Agent shall disclose that Lender's name and Commitment to any other Lender that is, or becomes, a Disclosing Lender.

40.3.2
The Agent shall, if so directed by the Requisite Lenders, request each Lender to indicate to it whether it is a Disclosing Lender.
40.4
Lender enquiry   If any Lender believes that any entity is, or may be, a Lender and:

40.4.1
that entity ceases to have an Investment Grade Rating; or

40.4.2
an Insolvency Event occurs in relation to that entity,
the Agent shall, at the request of that Lender, indicate to that Lender the extent to which that entity has a Commitment.
40.5
Lender details definitions   In this Clause 40:
"Investment Grade Rating" means, in relation to an entity, a rating for its long-term unsecured and non-credit-enhanced debt obligations of BBB- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or Baa3 or higher by Moody's
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Investors Service Limited or a comparable rating from an internationally recognised credit rating agency.
"Requisite Lenders" means a Lender or Lenders whose Commitments aggregate 15 per cent (or more) of the Total Commitments (or if the Total Commitments have been reduced to zero, aggregated 15 per cent (or more) of the Total Commitments immediately prior to that reduction).
41
Counterparts
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
42
Joint and Several Liability
42.1
Nature of liability   The representations, warranties, covenants, obligations and undertakings of the Borrowers contained in this Agreement shall be joint and several so that each Borrower shall be jointly and severally liable with all the Borrowers for all of the same and such liability shall not in any way be discharged, impaired or otherwise affected by:

42.1.1
any forbearance (whether as to payment or otherwise) or any time or other indulgence granted to any other Borrower or any other Obligor under or in connection with any Finance Document;

42.1.2
any amendment, variation, novation or replacement of any other Finance Document;

42.1.3
any failure of any Finance Document to be legal valid binding and enforceable in relation to any other Borrower or any other Obligor for any reason;

42.1.4
the winding-up or dissolution of any other Borrower or any other Obligor;

42.1.5
the release (whether in whole or in part) of, or the entering into of any compromise or composition with, any other Borrower or any other Obligor; or

42.1.6
any other act, omission, thing or circumstance which would or might, but for this provision, operate to discharge, impair or otherwise affect such liability.
42.2
No rights as surety   Until the Indebtedness has been unconditionally and irrevocably paid and discharged in full, each Borrower agrees that it shall not, by virtue of any payment made under this Agreement on account of the Indebtedness or by virtue of any enforcement by a Finance Party of its rights under this Agreement or by virtue of any relationship between, or transaction involving, the relevant Borrower and any other Borrower or any other Obligor:

42.2.1
exercise any rights of subrogation in relation to any rights, security or moneys held or received or receivable by a Finance Party or any other person; or
Page 128



42.2.2
exercise any right of contribution from any other Borrower or any other Obligor under any Finance Document; or

42.2.3
exercise any right of set-off or counterclaim against any other Borrower or any other Obligor; or

42.2.4
receive, claim or have the benefit of any payment, distribution, security or indemnity from any other Borrower or any other Obligor; or

42.2.5
unless so directed by the Agent (when the relevant Borrower will prove in accordance with such directions), claim as a creditor of any other Borrower or any other Obligor in competition with any Finance Party
and each Borrower shall hold in trust for the Finance Parties and forthwith pay or transfer (as appropriate) to the Agent any such payment (including an amount equal to any such set-off), distribution or benefit of such security, indemnity or claim in fact received by it.
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Section 12
Governing Law and Enforcement
43
Governing Law
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
44
Enforcement
44.1
Jurisdiction of English courts

44.1.1
The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").  Each Party agrees that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.

44.1.2
Notwithstanding Clause 44.1.1, 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, any Finance Party may take concurrent proceedings in any number of jurisdictions.
44.2
Service of process

44.2.1
Without prejudice to any other mode of service allowed under any relevant law, each Borrower and each Guarantor:

(a)
irrevocably appoints Hill Dickinson Services (London) Ltd, The Broadgate Tower, 20 Primrose Street, London EC2A 2EW as its agent for service of process in relation to any proceedings before the English courts in connection with any Finance Document; and
agrees that failure by a process agent to notify that Borrower or that Guarantor (as the case may be) of the process will not invalidate the proceedings concerned.

44.2.2
If any person appointed as an agent for service of process is unable for any reason to act as agent for service of process or terminates its appointment as agent for service of process, the relevant Borrower or relevant Guarantor (as the case may be) must immediately (and in any event within five days of such event taking place) appoint another agent on terms acceptable to the Agent.  Failing this, the Agent may appoint another agent for this purpose.
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Page 130

Schedule 1
Part I The Original Lenders
Name of Original Lender
Commitment
Treaty Passport scheme reference number and jurisdiction of residence (if applicable)
ABN AMRO Bank N.V.
Gustav Mahlerlaan 10, 1082 PP Amsterdam, The Netherlands
 
     
     
     

Page 131

Schedule 2
Part I
Initial Conditions Precedent
1
Obligors

(a)
Constitutional documents   Copies of the constitutional documents of each Obligor together with such other evidence as the Agent may reasonably require that each Obligor is duly incorporated in its country of incorporation and remains in existence with power to enter into, and perform its obligations under, the Relevant Documents to which it is or is to become a party.

(b)
Certificates of good standing   A certificate of good standing in respect of each Obligor (if such a certificate can be obtained).

(c)
Board resolutions   A copy of a resolution of the board of directors of each Obligor (other than the Original Guarantor) and a copy of a resolution of the executive committee of the board of directors of the Original Guarantor:

(i)
approving the terms of, and the transactions contemplated by, the Relevant Documents to which it is a party and resolving that it execute those Relevant Documents; and

(ii)
authorising a specified person or persons to execute those Relevant Documents (and all documents and notices to be signed and/or dispatched under those documents) on its behalf.

(d)
Copy passports   A copy of the passport of each person actually executing any of the Relevant Documents pursuant to the resolutions referred to in (c) and of the director and officers of each Obligor.

(e)
Shareholder resolutions   A copy of a resolution signed by all the holders of the issued shares in each Obligor (other than the Original Guarantor), approving the terms of, and the transactions contemplated by, the Relevant Documents to which that Obligor is a party.

(f)
Officer's certificates   An original certificate of a duly authorised officer of each Obligor:

(i)
certifying that each copy document relating to it specified in this Part I of Schedule 2 is correct, complete and in full force and effect;

(ii)
setting out the names of (a) the directors and officers of that Obligor and (b) the shareholders of that Obligor (other than the Original Guarantor) and the proportion of shares held by each shareholder; and

(iii)
confirming that borrowing or guaranteeing or securing, as appropriate, the Loan would not cause any borrowing, guarantee, security or similar limit binding on that Obligor to be exceeded.
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(g)
Evidence of registration   Where such registration is required or permitted under the laws of the relevant jurisdiction, evidence that the names of the directors, officers and shareholders of each Obligor are duly registered in the companies registry or other registry in the country of incorporation of that Obligor.

(h)
Powers of attorney   The original notarially attested and legalised power of attorney of each of the Obligors under which the Relevant Documents to which it is or is to become a party are to be executed or transactions undertaken by that Obligor.
2
Security and related documents

(a)
Security Documents   The Guarantee, the Account Security Deed, the Share Securities and any other Credit Support Documents, together with all other documents required by any of them, including, without limitation, (i) all notices of assignment and/or charge and evidence that those notices will be duly acknowledged by the recipients and (ii) (pursuant to the Share Securities) all share certificates, certified copy share registers or registers of members, transfer forms, proxy forms, letters of resignation and letters of undertaking.

(b)
Mandates   Such duly signed forms of mandate, and/or other evidence of the opening of the Earnings Accounts, as the Security Agent may require.

(c)
No disputes   The written confirmation of the Borrowers that there is no dispute under any of the Relevant Documents as between the parties to any such document.

(d)
Account Holder's confirmation   The written confirmation of the Account Holder that the Earnings Accounts have been opened with the Account Holder and to its actual knowledge are free from Encumbrances other than as created by or pursuant to the Security Documents and rights of set off in favour of the Account Holder as account holder.

(e)
Master Agreement   The Master Agreement.

(f)
Other Relevant Documents   Copies of each of the Relevant Documents not otherwise comprised in the documents listed in this Part I of Schedule 2.
3
Legal opinions
The following legal opinions, each addressed to the Agent, or confirmation satisfactory to the Agent that such opinions will be given:

(a)
a legal opinion of Stephenson Harwood LLP, legal advisers to the Agent as to English law substantially in the form distributed to the Lenders prior to signing this Agreement;

(b)
a legal opinion of the following legal advisers to the Agent:

(i)
Hill Dickinson as to Marshall Islands law;

(ii)
Patton, Moreno & Asvat as to Panamanian law and
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(iii)
NautaDutilh N.V. as to Dutch law.
4
Other documents and evidence

(a)
Process agent   Evidence that any process agent referred to in Clause 44.2 (Service of process) and any process agent appointed under any other Finance Document has accepted its appointment.

(b)
Other Authorisations   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 Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Relevant Document or for the validity and enforceability of any Relevant Document.

(c)
Financial statements   A copy of each of the Original Financial Statements.

(d)
Fees   The evidence that the fees, costs and expenses then due from the Borrowers under Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid by the Utilisation Date.

(e)
"Know your customer" documents   Such documentation and other evidence as is reasonably requested by the Agent in order for the Lenders to comply with all necessary "know your customer" or similar identification procedures in relation to the transactions contemplated in the Finance Documents.

(f)
"Know your customer" procedure Satisfactory conclusion of the Lenders' internal "know your customer" procedures
Page 134
Part II
Utilisation Conditions Precedent
1
Obligors

(a)
Officers certificate If required, a certificate signed by a duly authorised officer of each Obligor confirming that none of the documents and evidence delivered to the Agent pursuant to Part I of Schedule 2 has been amended, modified or revoked in any way since its delivery to the Agent.

(b)
Certificates of good standing   A certificate of good standing in respect of each Obligor (if such a certificate can be obtained).
2
Security and related documents

(a)
Vessel documents   Photocopies, certified as true, accurate and complete by a director or the secretary or the legal advisers of the Borrower, of:

(i)
any charterparty or other contract of employment of each Vessel which will be in force on the Utilisation Date including, without limitation, the Charter;

(ii)
the confirmation (by email from the master of the Vessel) for the delivery of the Vessel pursuant to the Charter (if the Charter is a time charter) or the protocol of delivery and acceptance evidencing the unconditional physical delivery of the Vessel by the Borrower to the Charterer pursuant to the Charter (if the Charter is a bareboat charter);

(iii)
the Management Agreements;

(iv)
each Vessel's current Safety Construction, Safety Equipment, Safety Radio and Load Line Certificates;

(v)
evidence of each Vessel's current Certificate of Financial Responsibility issued pursuant to the United States Oil Pollution Act 1990;

(vi)
each Vessel's current SMC;

(vii)
each ISM Company's current DOC;

(viii)
each Vessel's current ISSC;

(ix)
each Vessel's current IAPPC;

(x)
each Vessel's current Tonnage Certificate;
in each case together with all addenda, amendments or supplements.

(b)
Evidence of Borrower's title   Evidence that on the Utilisation Date (i) each Vessel will be permanently registered under the relevant flag in the ownership of the relevant Borrower or Guarantor and (ii) the Mortgage will be capable of being registered against that Vessel with first priority.
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(c)
Evidence of insurance   Evidence that the Vessel is insured in the manner required by the Security Documents and that letters of undertaking will be issued in the manner required by the Security Documents, together with (if required by the Agent) the written approval of the Insurances by an insurance adviser appointed by the Agent.

(d)
Confirmation of class   A Class Certificate for hull and machinery confirming that the Vessel is classed with the highest class applicable to vessels of her type with Lloyd's Register or such other classification society which is a member of the International Association of Classification Societies as may be acceptable to the Agent free of overdue recommendations.

(e)
Valuation   Two valuations of each Borrower's Vessel addressed to the Agent from an Approved Shipbroker certifying the Market Value for each  Vessel, acceptable to the Agent dated not earlier than thirty (30) Business Days prior to the proposed Utilisation Date.  If the one set of such valuations for all Borrowers’ Vessels provided by the first Approved Shipbroker differs in aggregate by more than 10 per cent from the other set of such valuations provided by the second Approved Broker, then the Facility Agent shall obtain a third set of valuations from a third Approved Shipbroker and the aggregate Market Value shall be the arithmetic average of the two lowest sets of valuations.

(f)
Security Documents   The Mortgage and the Assignments in respect of the Vessel and any other Credit Support Documents, together with all other documents required by any of them, including, without limitation, all notices of assignment and/or charge and evidence that those notices will be duly acknowledged by the recipients.

(g)
Managers' Undertakings   The Managers' Undertakings together with notices of any assignments contained in the same and evidence that those notices will be duly acknowledged by the recipients.

(h)
No disputes   The written confirmation of the Borrowers that there is no dispute under any of the Relevant Documents as between the parties to any such document.

(i)
Other Relevant Documents   Copies of each of the Relevant Documents not otherwise comprised in the documents listed in this Part I of Schedule 2.
3
Legal opinions
The following legal opinions, each addressed to the Agent, or confirmation satisfactory to the Agent that such opinions will be given:

(a)
a legal opinion of Stephenson Harwood LLP, legal advisers to the Agent as to English law substantially in the form distributed to the Lenders prior to signing this Agreement;

(b)
a legal opinion of the following legal advisers to the Agent:

(i)
Hill Dickinson as to Marshall Islands law;
Page 136



(ii)
Patton, Moreno & Asvat as to Panamanian law and

(iii)
NautaDutilh N.V. as to Dutch law.
4
Other documents and evidence

(a)
Utilisation Request   A duly completed Utilisation Request.

(b)
Other Authorisations   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 Borrowers accordingly) in connection with the entry into and performance of the transactions contemplated by any Relevant Document or for the validity and enforceability of any Relevant Document.

(c)
Fees   The evidence that the fees, costs and expenses then due from the Borrowers under Clause 11 (Fees) and Clause 16 (Costs and Expenses) have been paid or will be paid by the Utilisation Date.



Page 137

Part III
Conditions Subsequent
1
Evidence of Borrower's title   Certificate of ownership and encumbrance (or equivalent) issued by the Registrar of Ships (or equivalent official) of the relevant flag confirming that (a) the Vessel is permanently registered under that flag in the ownership of the Borrower or Collateral Guarantor, (b) the Mortgage has been registered with first or second priority against the Vessel and (c) there are no further Encumbrances registered against the Vessel other than in favour of the Security Agent (in the case of the Collateral Guarantor).
2
Letters of undertaking   Letters of undertaking in respect of the Insurances as required by the Security Documents together with copies of the relevant policies or cover notes or entry certificates duly endorsed with the interest of the Finance Parties.
3
Acknowledgements of notices   Acknowledgements of all notices of assignment and/or charge given pursuant to any Security Documents received by the Agent pursuant to Part I of this Schedule 2.
4
Legal opinions   Such of the legal opinions specified in Part I of this Schedule 2 as have not already been provided to the Agent.
5
Companies Act registrations   Evidence that the prescribed particulars of any Security Documents received by the Agent pursuant to Part I of this Schedule 2 have been delivered to the relevant Registry of Companies/Corporations within the statutory time limit.
6
Master's receipt   The master's receipt for the Mortgage.
7
Shares Security documents   Any original documents pursuant to the Shares Security, which have not already been provided to the Agent.
Page 138


Schedule 3
Utilisation Request
From: Lelu Shipping Company Inc.


Rairok Shipping Company Inc.


Lae Shipping Company Inc.


Namu Shipping Company Inc.


Fayo Shipping Company Inc.


Ujae Shipping Company Inc
To:
ABN AMRO Bank N.V.
Dated:
Dear Sirs
Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc, – $91,000,000 Loan Agreement dated [                   ] 2021 (the "Agreement")

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 make a Utilisation on the following terms:
   
 
Proposed Utilisation Date:
[          ] (or, if that is not a Business Day, the next Business Day)
     
 
Currency of Utilisation:
[          ]
     
 
Amount:
[          ]
     
 
Interest Period:
[          ]
     
 
Vessel:
[          ]
   
3
We confirm that each condition specified in Clause 4.1 (Further conditions precedent) is satisfied on the date of this Utilisation Request.
   
4
The proceeds of the Utilisation should be paid as follows:
   
5
This Utilisation Request is irrevocable.



Page 139


Yours faithfully
…………………………………
authorised signatory for
Lelu Shipping Company Inc.

Rairok Shipping Company Inc.

Lae Shipping Company Inc.

Namu Shipping Company Inc.

Fayo Shipping Company Inc.

Ujae Shipping Company Inc.
Page 140

Schedule 4
Form of Transfer Certificate
To: ABN AMRO Bank N.V. as Agent
From:
[The Existing Lender] (the "Existing Lender") and [The New Lender] (the "New Lender")
Dated:
Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc, – $91,000,000 Loan Agreement dated [                   ] 2021 (the "Loan Agreement")
1
We refer to the Loan Agreement.  This agreement (the "Agreement") shall take effect as a Transfer Certificate for the purposes of the Loan Agreement.  Terms defined in the Loan Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
2
We refer to Clause 25.5 (Procedure for transfer) of the Loan Agreement:

(a)
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation and in accordance with Clause 25.5 (Procedure for transfer) all of the Existing Lender's rights and obligations under the Loan Agreement and the other Finance Documents which relate to that portion of the Existing Lender's Commitment(s) and participations in the Loan under the Loan Agreement as specified in the Schedule.

(b)
The proposed Transfer Date is [                        ].

(c)
The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 34.2 (Addresses) of the Loan Agreement are set out in the Schedule.
3
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 25.4.1(c) (Limitation of responsibility of Existing Lenders) of the Loan Agreement.
4
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

(a)
[a Qualifying Lender other than a Treaty Lender;]

(b)
[a Treaty Lender;]

(c)
[not a Qualifying Lender].
5
The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:
Page 141



(a)
a company resident in the United Kingdom for United Kingdom tax purposes;

(b)
a partnership each member of which is:

(i)
a company so resident in the United Kingdom; or

(ii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
5
The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [                   ]) and is tax resident in [                   ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax, and requests that the Agent notify the Borrowers that it wishes that scheme to apply to the Agreement.
6
This 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 Agreement.
7
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
8
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Note:
The execution of this Transfer Certificate may not transfer a proportionate share of the Existing Lender's interest in any Encumbrance created or expressed to be created or evidenced by the Security Documents in all jurisdictions.  It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
Page 142

The Schedule
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and account details for payments,]
[Existing Lender]
[New Lender]
   
By:
By:
   


This Agreement is accepted as a Transfer Certificate for the purposes of the Loan Agreement by the Agent and the Transfer Date is confirmed as [                         ].
ABN AMRO Bank N.V.
By:
Page 143


Schedule 5
Form of Assignment Agreement
To:
ABN AMRO Bank N.V. as Agent, as Security Agent and as Arranger and Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc,  as Borrowers, for and on behalf of each Obligor
From:
[the Existing Lender] (the "Existing Lender") and [the New Lender] (the "New Lender")
Dated:
Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc,– $91,000,000 Loan Agreement dated [                   ] 2021 (the "Loan Agreement")
1
We refer to the Loan Agreement.  This is an Assignment Agreement.  This agreement (the "Agreement") shall take effect as an Assignment Agreement for the purpose of the Loan Agreement.  Terms defined in the Loan Agreement have the same meaning in this Agreement unless given a different meaning in this Agreement.
2
We refer to Clause 25.6 (Procedure for assignment) of the Loan Agreement:

(a)
The Existing Lender assigns absolutely to the New Lender all the rights of the Existing Lender under the Loan Agreement, the other Finance Documents and in respect of any Encumbrance created or expressed to be created or evidenced by the Security Documents which correspond to that portion of the Existing Lender's Commitment(s) and participations in the Loan under the Loan 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 Commitment(s) and participations in the Loan under the Loan 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).
3
The proposed Transfer Date is [      ].
4
On the Transfer Date the New Lender becomes Party to the relevant 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 34.2 (Addresses) of the Loan Agreement are set out in the Schedule.
Page 144


6
The New Lender expressly acknowledges the limitations on the Existing Lender's obligations set out in Clause 25.4.3 (Limitation of responsibility of Existing Lenders) of the Loan Agreement.
7
The New Lender confirms, for the benefit of the Agent and without liability to any Obligor, that it is:

(a)
[a Qualifying Lender (other than a Treaty Lender);]

(b)
[a Treaty Lender;]

(c)
[not a Qualifying Lender].
8
The New Lender confirms that the person beneficially entitled to interest payable to that Lender in respect of an advance under a Finance Document is either:

(a)
a company resident in the United Kingdom for United Kingdom tax purposes;

(b)
a partnership each member of which is:

(i)
a company so resident in the United Kingdom; or

(ii)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of Part 17 of the CTA; or

(c)
a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.]
9
The New Lender confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [  ]) and is tax resident in [   ], so that interest payable to it by borrowers is generally subject to full exemption from UK withholding tax and hereby notifies the Borrowers that it wishes that scheme to apply to the Loan Agreement.
10
This Agreement acts as notice to the Agent (on behalf of each Finance Party) and, upon delivery in accordance with Clause 25.7 (Copy of Transfer Certificate or Assignment Agreement to Borrowers), to the Borrowers (on behalf of each Obligor) of the assignment referred to in this Agreement.
11
This 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 Agreement.
12
This Agreement and any non-contractual obligations arising out of or in connection with it is governed by English law.
Page 145


13
This Agreement has been entered into on the date stated at the beginning of this Agreement.
Note:
The execution of this Assignment Agreement may not transfer a proportionate share of the Existing Lender's interest in any Encumbrance created or expressed to be created or evidenced by the Security Documents in all jurisdictions.  It is the responsibility of the New Lender to ascertain whether any other documents or other formalities are required to perfect a transfer of such a share in any jurisdiction and, if so, to arrange for execution of those documents and completion of those formalities.
Page 146

The Schedule
Commitment/rights and obligations to be transferred by assignment, release and accession
[insert relevant details]
[Facility office address, fax number and attention details for notices and account details for payments]
[Existing Lender]
[New Lender]
   
By:
By:
   


This Agreement is accepted as an Assignment Agreement for the purposes of the Loan Agreement by the Agent and the Transfer Date is confirmed as [                    ].
Signature of this Agreement by the Agent constitutes confirmation by the Agent of receipt of notice of the assignment referred to in this Agreement, which notice the Agent receives on behalf of each Finance Party.
ABN AMRO Bank N.V.
By:
Page 147


Schedule 6
Form of Accession Deed
To:
ABN AMRO Bank N.V. as Agent, as Arranger and as Security Agent for itself and each of the other Finance Parties
From: [Affiliate of a Borrower][Member of the Group] and [Borrowers]
Dated:
Dear Sirs
Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc,– $91,000,000 Loan Agreement dated [                   ] 2021 (the "Agreement")
1
We refer to the Agreement.  This deed (the "Accession Deed") shall take effect as an Accession Deed for the purposes of the Agreement.  Terms defined in the Agreement have the same meaning in paragraphs 1-3 of this Accession Deed unless given a different meaning in this Accession Deed.
2
[Affiliate of a Borrower] agrees to become an Additional Guarantor and to be bound by the terms of the Agreement and the other Finance Documents as an Additional Guarantor pursuant to Clause 26.2 (Additional Guarantors)] of the Agreement.  [Affiliate of a Borrower] is a company duly incorporated under the laws of [name of relevant jurisdiction] and is a limited liability company and registered number [                   ].
3
[Affiliate of a Borrower's] administrative details for the purposes of the Agreement are as follows:
Address:
Fax No.:
Attention:
This Accession Deed and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Accession Deed has been signed on behalf of the [Borrowers] and executed as a deed by [Affiliate of a Borrower] and is delivered on the date stated above.

Page 148

[Affiliate of a Borrower]
[Executed as a Deed
)
   
By: [Affiliate of a Borrower]
)
   

 
Director
 
 
 
Director/Secretary]
 

or


[Executed as a Deed
 
By: [Affiliate of a Borrower]
 
 
_____________________________
 
Signature of Director
 
_____________________________
in the presence of
Name of Director
 
_____________________________
 
Signature of witness
 
_____________________________
 
Name of witness
 
_____________________________
 
Address of witness
 
_____________________________
 
 
_____________________________
 
 
_____________________________
 
 
_____________________________
 
Occupation of witness]


The [Borrowers]

 
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
 
 
[Borrowers]
 

Page 149


By: ]

Page 150

Schedule 7
Form of Compliance Certificate
To: ABN AMRO Bank N.V.
From: Diana Shipping Inc.
                                                                                                   Dated:
Dear Sirs
Lelu Shipping Company Inc., Rairok Shipping Company Inc., Lae Shipping Company Inc., Namu Shipping Company Inc., Fayo Shipping Company Inc., and Ujae Shipping Company Inc, – $91,000,000 Loan Agreement dated [                   ] 2021 (the "Agreement")
1
We refer to the Agreement.  This is a Compliance Certificate.  Terms defined in the Agreement have the same meaning when used in this Compliance Certificate unless given a different meaning in this Compliance Certificate.
2
We confirm that on [●]:
Total Assets:
Market Value Adjusted Total Assets: [                    ]
Total Liabilities: [                    ]
Market Value Adjusted Net Worth: [                    ]
Market Value Adjusted Net Worth: [   ]% of Market Value Adjusted Total Assets
Minimum Liquidity Amount: [                    ]
3
[We confirm that no Default is continuing.]

Signed:
………………………………………………
 
 
Chief Finance Officer
 
 
of
 
 
Diana Shipping Inc.
 
 

Page 151

Schedule 8 
Additional Definitions
"Fleet" shall mean all vessels that are managed by Diana Shipping Services S.A.
"Vessel AER" shall mean the average efficiency ratio of the vessel as calculated per the Poseidon Principles as follows:
                                          AER = ΣCi/ΣDWT x Di
Where Ci is the carbon emissions for voyage I computed using the fuel consumption and carbon factor of each type of fuel, DWT is the design deadweight of a vessel and D is the distance travelled on voyage i. The AER is computed for all voyages performed over a calendar year.
"Fleet AER Score" shall mean the average efficiency ratio of the Fleet
                                          AER = ΣCi/Σ(DWTi x Di)
Where Ci is the total carbon emissions for the running year for vessel i, DWT is the nominal deadweight of vessel i and Di is the total distance travelled for the running year for vessel i.
"Annex VI" shall mean Annex VI of the Protocol of 1997 (as subsequently amended from time to time) to amend the International Convention for the Prevention of Pollution from Ships 1973 (Marpol), as modified by the Protocol of 1978 relating thereto.
"ECBT" shall mean E-learning computer based training (ECBT) of Diana's seafarers through the learning and assessment platform of Seagull Maritime AS (certified as Maritime Training Provider by DNV-GL attached). ECBT includes the following e-learning trainings targeted for dry-bulk carriers:
MARPOL;
Ship Energy Efficiency Management Plan (SEEMP);
Green Passport (inventory of Hazardous Materials);
Ballast water management;
Cyber security awareness;
IMSBC code;
Hatch cover maintenance and operation;
Asbestos awareness;
Marine environmental awareness;
Loading and unloading
"Fleet Carbon Intensity Certificate" shall mean the certificate(s) from a Recognized Organization relating to each Fleet Vessel and a calendar year setting out the AER of a Vessel for all voyages performed by it over that calendar year using ship fuel oil consumption data
Page 152

required to be collected and reported in accordance with Regulation 22A of Annex VI in respect of that calendar year.
“Recognized Organisation” means, in respect of a Fleet Vessel, an organization representing that Fleet Vessel’s flag state and, for the purposes of this Schedule 8, duly authorised to determine whether the owner of such Fleet Vessel has complied with regulation 22A of Annex VI.
"Poseidon Principles" shall mean the financial industry framework for assessing and disclosing the climate alignment of ship finance portfolios published on June 18 2019, as the same may be amended or replaced from time to time.
"Fleet Vessel" shall mean any vessel in the Fleet.
"Training Eligible Vessels" in any given year means Fleet Vessels that are managed by Diana Shipping Services S.A. for more than 180 days during that year.
"Concluded Trainings" In any given year, means the number of successfully concluded (electronic record provided by Seagull Maritime AS) ECBT on board Training Eligible Vessels through the learning and assessment platform of certified maritime training provider (such as Seagull Maritime AS) during that year.
"Total Seafarers" shall mean the total number of seafarers serving on board Training Eligible Vessels.
"Safety ECBT Score" means the ratio of Concluded Trainings over Total Seafarers.
Key Performance Indicators
Baseline
2020
 
2022
2023
2024
 
2025
 
KPI 1: Fleet AER Score
3.04
Targets
3.01
2.98
2.95
2.92
KPI 2: Safety ECBT Score
8.36
Targets
8.50
8.75
9.00
9.25


Page 153


Schedule 9  FORM OF SUSTAINABILITY PERFORMANCE CERTIFICATE

To: ABN AMRO Bank N.V. as the facility agent

From: Diana Shipping Inc.

Date:             May 2021
Dear Sirs
1
We refer to the Agreement. This is a Sustainability Performance Certificate.  Terms defined in the Agreement have the same meaning when used in this Sustainability Performance Certificate unless given a different meaning in this Sustainability Performance Certificate.
2
We confirm that as at [insert relevant testing date] :
(a) the Realised Performance of KPI1 (Fleet AER Score) was [           ], and therefore the Sustainability Performance Target for the considered year has been [achieved/missed].
(b) the Realised Performance of KPI2 (Safety ECBT Score) was [            ], and therefore the Sustainability Performance Target for the considered year has been [achieved/missed].
3
On the basis of clause 8 above, Sustainability Performance Targets have been achieved for KPI1 and KPI2, [resulting in a Margin [reduction/increase] of [     ] % per annum] [and therefore the Margin will remain unchanged until the next Sustainability Effective Date].

Signed: ………………………………………………………..
Chief Finance Officer
of
Diana Shipping Inc.
     
     
     
Page 154

Signatures
The Borrowers

Lelu Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis

)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     
     

Rairok Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
 
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     
     

Lae Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
 
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     

Namu Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
 
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     



Page 155
Fayo Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
 
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     
     

Ujae Shipping Company Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
 
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
)
Department/Officer: Mr Ioannis Zafirakis
)
     
     

The Original Guarantor
)
 
)
Diana Shipping Inc.
)
 
)
By: Ioannis Zafirakis
) /s/ Ioannis Zafirakis
   
)
Address:
c/o Diana Shipping Services S.A.
)
 
Pendelis 16, 175 64 Palaio Faliro, Athens,
)
 
Greece
)
Fax no.:
+30 210 9470101
 
Department/Officer: Mr Ioannis Zafirakis
)
     
     

The Agent
)
 
)
ABN AMRO Bank N.V.
)
 
)
By:
Nigel Vaughan Bowen-Morris
) /s/ Nigel Vaughan Bowen-Morris
   
)
Address:
Gustav Mahlerlaan 10,
)
 
1082 PP Amsterdam, The Netherlands
)
Fax no.:
+31 (0) 10 401 53 23
)
Department/Officer: Global Transportation and Logistics
)
     






Page 156



The Security Agent
)
 
)
ABN AMRO Bank N.V
)
 
)
By:
Nigel Vaughan Bowen-Morris
) /s/ Nigel Vaughan Bowen-Morris
   
)
Address:
Gustav Mahlerlaan 10,
)
 
1082 PP Amsterdam, The Netherlands
)
Fax no.:
+31 (0) 10 401 53 23
)
Department/Officer: Global Transportation and Logistics
)
     

The Arranger
)
 
)
ABN AMRO Bank N.V.
)
 
)
By:
Nigel Vaughan Bowen-Morris
) /s/ Nigel Vaughan Bowen-Morris
   
)
Address:
Gustav Mahlerlaan 10,
)
 
1082 PP Amsterdam, The Netherlands
)
Fax no.:
+31 (0) 10 401 53 23
)
Department/Officer: Global Transportation and Logistics
)
     

The Original Lenders
)
 
)
ABN AMRO Bank N.V.
)
 
)
By:
Nigel Vaughan Bowen-Morris
) /s/ Nigel Vaughan Bowen-Morris
   
)
Address:
Gustav Mahlerlaan 10,
)
 
1082 PP Amsterdam, The Netherlands
)
Fax no.:
+31 (0) 10 401 53 23
)
Department/Officer: Global Transportation and Logistics
)
     

The Swap Provider
)
 
)
ABN AMRO Bank N.V.
)
 
)
By:
Nigel Vaughan Bowen-Morris
) /s/ Nigel Vaughan Bowen-Morris
   
)
Address:
Gustav Mahlerlaan 10,
)
 
1082 PP Amsterdam, The Netherlands
)
Fax no.:
+31 (0) 10 401 53 23
)
Department/Officer: Global Transportation and Logistics
)



Page 157
Exhibit 5.1


 
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK  10004
 
 
 
 
 
TELEPHONE:  (212)  574-1200
FACSIMILE:  (212) 480-8421
WWW.SEWKIS.COM
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE:  (202) 737-8833
FACSIMILE:  (202) 737-5184



 
June 4, 2021

Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece

Re:  Diana Shipping Inc.

Ladies and Gentlemen:

We have acted as United States and Marshall Islands counsel to Diana Shipping Inc., a Marshall Islands corporation (the “Company”), in connection with the Company’s registration statement on Form F-3 (File No. 333- ) (the “Registration Statement”), as filed with the U.S. Securities and Exchange Commission (the “Commission”) and as thereafter amended or supplemented, relating to the registration for sale in one or more public offerings by the Company (the “Offerings”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) of an aggregate of $750,000,000 of the Company’s securities, which may include shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”), shares of preferred stock, par value $0.01 per share, of the Company (the “Preferred Stock”), debt securities of the Company (the “Debt Securities”), warrants to purchase the Company’s securities (the “Warrants”), rights to purchase the Company’s Preferred Stock (the “Preferred Rights”), rights to purchase the Company’s securities (the “Rights”), purchase contracts to purchase the Company’s securities (the “Purchase Contracts”) and units comprised of any of the foregoing securities (the “Units” and, together with the Common Stock, Preferred Stock, Debt Securities, Warrants, Rights, Preferred Stock Rights and Purchase Contracts, the “Securities”).

We have examined originals or copies, certified or otherwise identified to our satisfaction, of: (i) the Registration Statement; (ii) the prospectus of the Company included in the Registration Statement (the “Prospectus”); and (iii) such corporate documents and records of the Company and such other instruments, certificates and documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies or drafts of documents to be executed, the genuineness of all signatures and the legal competence or capacity of persons or entities to complete the execution of documents. As to various questions of fact that are material to the opinions hereinafter expressed, we have relied upon statements or certificates of public officials, directors or officers of the Company and others.


We have further assumed for the purposes of this opinion, without investigation, that (i) all documents contemplated by the Prospectus to be executed in connection with the Offerings have been duly authorized, executed and delivered by each of the parties thereto other than the Company; (ii) the terms of the Offerings comply in all respects with the terms, conditions and restrictions set forth in the Prospectus and all of the instruments, agreements and other documents relating thereto or executed in connection therewith; (iii) after the issuance of the Common Stock offered pursuant to the Registration Statement, as amended or supplemented, the total number of issued Common Stock, together with the total number of Common Stock reserved for issuance upon the exercise, exchange or conversion, as the case may be, of any exercisable, exchangeable or convertible security then outstanding, will not exceed the total number of authorized Common Stock under the Company’s Articles of Incorporation, as amended and then in effect, and that par value of $0.01 per share has been paid for the Common Stock so issued; and (iv) after the issuance of the Preferred Stock offered pursuant to the Registration Statement, as amended or supplemented, the total number of issued Preferred Stock, together with the total number of Preferred Stock reserved for issuance upon the exercise, exchange or conversion, as the case may be, of any exercisable, exchangeable or convertible security then outstanding, will not exceed the total number of authorized Preferred Stock under the Company’s Articles of Incorporation, as amended and then in effect, and that par value of $0.01 per share has been paid for the Preferred Stock so issued.

Based upon and subject to the foregoing, and having regard to such other legal considerations which we deem relevant, we are of the opinion that:
 
 
1.
the Common Stock, Preferred Stock, and any Common Stock or Preferred Stock underlying the Debt Securities, Warrants, Rights, Preferred Stock Rights, Purchase Contracts or Units constituting the Securities have been duly authorized, and when issued, sold and paid for as contemplated in the Prospectus, the Common Stock and Preferred Stock will be validly issued, fully paid and non-assessable;
 
 
 
 
2.
the Debt Securities, when the applicable indenture relating to such debt securities (the “Indenture”) has been duly qualified and the Company has taken all necessary action to approve the issuance and terms of the Debt Securities and the terms of the offerings thereof and related matters and the Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture, as applicable, and the other applicable agreements approved by the Company and upon payment of the consideration thereof or provided for therein, the Debt Securities will be legally issued; and
 
 
 
 
3.
the Warrants, the Rights, Preferred Stock Rights, Purchase Contracts and the Units (together, the “Subscription Securities”), when the Company has taken all necessary action to approve the issuance and terms of such Subscription Securities, the terms of the offerings and related matters and the Subscription Securities have been issued and delivered in accordance with the terms of the applicable warrant agreement, rights agreement or similar agreement approved by the Company and upon payment of the consideration therefor, if any, provided for therein and in any applicable definitive purchase, underwriting or similar agreement approved by the Company, then the Subscription Securities will be legally issued.
 
Furthermore, based upon and subject to the foregoing, and having regard to such other legal considerations which we deem relevant, we are of the opinion that under the laws of the State of New York, the Debt Securities issued pursuant to an indenture substantially in the form examined by us, the Warrants, the Purchase Contracts, the Rights, the Preferred Stock Rights  and the Units, upon due execution and delivery as contemplated in the Prospectus or any supplement thereto, will be valid and legally binding obligations of the Company. The foregoing opinions are subject, in each case, to applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent transfer, fraudulent conveyance or other similar laws affecting generally the enforceability of creditors’ rights from time to time in effect and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law, including application of principles of good faith, fair dealing, commercial reasonableness, materiality, unconscionability and conflict with public policy and other similar principles.


 
This opinion is limited to the laws of the State of New York and the Republic of the Marshall Islands as in effect on the date hereof.
 
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to each reference to us and the discussions of advice provided by us under the headings “Legal Matters” in the Prospectus, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission promulgated thereunder with respect to any part of the Registration Statement.
 
 
Very truly yours,
 
 
 
/s/ Seward & Kissel LLP


Exhibit 8.1


 
Seward & Kissel llp
ONE BATTERY PARK PLAZA
NEW YORK, NEW YORK  10004
 
 
 
 
 
TELEPHONE:  (212)  574-1200
FACSIMILE:  (212) 480-8421
WWW.SEWKIS.COM
901 K Street, NW
WASHINGTON, D.C. 20001
TELEPHONE:  (202) 737-8833
FACSIMILE:  (202) 737-5184



 
June 4, 2021

Diana Shipping Inc.
Pendelis 16
175 64 Palaio Faliro
Athens, Greece

Re:  Diana Shipping Inc.

Ladies and Gentlemen:

We have acted as United States and Marshall Islands counsel to Diana Shipping Inc., a Marshall Islands corporation (the “Company”), in connection with the Company’s registration statement on Form F-3 (File No. 333- ) (the “Registration Statement”), as filed with the U.S. Securities and Exchange Commission (the “Commission”) and as thereafter amended or supplemented, relating to the registration for sale in one or more public offerings by the Company (the “Offerings”) under the U.S. Securities Act of 1933, as amended (the “Securities Act”) of an aggregate of $750,000,000 of the Company’s securities.

In formulating our opinion, we have examined such documents as we have deemed appropriate, including the Registration Statement and the prospectus contained therein (the “Prospectus”). We have also obtained such additional information as we have deemed relevant and necessary from representatives of the Company.

Based on the facts as set forth in the Registration Statement and the Company’s annual report on Form 20-F for the fiscal year ended December 31, 2020 (the “Annual Report”), which is incorporated by reference into the Registration Statement, and in particular, on the representations, covenants, assumptions, conditions and qualifications described in the section entitled “Item 10. Additional Information—E. Taxation”, we hereby confirm that the opinions of Seward & Kissel LLP with respect to United States federal income tax matters and Marshall Islands tax matters expressed in the Annual Report in the section entitled “Item 10. Additional Information—E. Taxation” are our opinions and accurately state our views as to the tax matters discussed therein.

Our opinions are based on the current provisions of the U.S. Internal Revenue Code of 1986, as amended, the Treasury Regulations promulgated thereunder, published pronouncements of the Internal Revenue Service, which may be cited or used as precedents, and case law and applicable Marshall Islands tax law as in effect on the date hereof, any of which may be changed at any time with retroactive effect. No opinion is expressed on any matters other than those specifically referred to above.

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, and to each reference to us and the discussions of advice provided by us in the Registration Statement, including by reference to the Company’s Annual Report, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of Commission promulgated thereunder with respect to any part of the Registration Statement.

 
Very truly yours,
 
 
 
/s/ Seward & Kissel LLP


Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption "Experts" in this Registration Statement (Form F-3) and related Prospectus of Diana Shipping Inc. for the registration of up to $750,000,000  common stock, preferred stock purchase rights, preferred stock, debt securities, warrants, purchase contracts, rights, and units and to the incorporation by reference therein of our reports dated March 12, 2021, with respect to the consolidated financial statements of Diana Shipping Inc., and the effectiveness of internal control over financial reporting of Diana Shipping Inc., included in its Annual Report (Form 20-F) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.

/s/ Ernst & Young (Hellas) Certified Auditors Accountants S.A.

Athens, Greece
June 4, 2021